Justice Ketanji Brown Jackson issued a scathing dissent of Monday’s Supreme Court decision on President Donald Trump’s mail-in voting order, warning that it sows election chaos and leaves states scrambling to respond.
“This ruling…needlessly injects chaos and uncertainty into the upcoming midterm elections,” Jackson wrote. “It also lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges.”
On Monday, the Supreme Court’s conservative majority sided with the Trump administration regarding an executive order that imposes new restrictions for mail-in voting ahead of this fall’s midterms. The order directs the Department of Homeland Security to send lists of U.S. citizens to officials in each state, and asks the U.S. Postal Service to make new rules on who it can transmit mail-in ballots from.
The panel did not rule on the order’s legality; instead, it lifted a lower court’s injunction blocking the implementation of parts of the proposal. Another nationwide injunction on one of the order’s provisions remains in effect.
Previously, 23 states, along with the District of Columbia, sued to contest the administration’s order, arguing that the Constitution grants states the power to administer elections. District Court Judge Indira Talwani concurred and said that parts of Trump’s order “unconstitutionally violate the separation of powers.“ In June, she issued an injunction halting the order, which was reaffirmed by an appeals court.
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As part of their decision, the Supreme Court’s conservative justices determined that the states had yet to be harmed by the administration’s regulations, and didn’t have sufficient standing to contest the policy.
Jackson pushed back on this rationale in her dissent, noting that states had already demonstrated that they’ve suffered injury and that this move marked a departure from how the Court has treated past election cases. She noted that it also offered states little clarity about when the right time to sue would be with the election fast approaching.
Liberal Justices Elena Kagan and Sonia Sotomayor also dissented in a separate statement.
The panel’s decision leaves the door open for further legal challenges on the order itself. As CNN Supreme Court analyst Steve Vladeck has explained, the U.S. Postal Service has issued new mail-in ballot rules as part of efforts to implement the order, and those could also be blocked.
Jackson emphasized that the majority’s move on Monday fuels uncertainty for state officials, who are busy preparing for the November general election, which is just months away.
“A stay grant puts the Plaintiff States in a precarious position: Their election officials would have to scramble in the coming weeks to challenge or attempt to take on the potentially impossible task of complying with the President’s new mail-in ballot regime,” Jackson wrote.
Ultimately, she noted, the court erred in lifting the existing injunction, and removing one of the legal hurdles the administration faces as it attempts to bring the mail-in order to fruition.
“When the Government’s obvious goal is to interfere with the Plaintiff States’ practices and prerogatives in a manner that the Constitution does not authorize, it is both a serious legal error and a grave misuse of our equitable emergency powers to let the Executive proceed even one step further,” Jackson wrote.