Yesterday, the United States Supreme Court issued an order paving the way for President Trump to implement the parts of his mail-in voting Executive Order that direct the federal government to compile lists of eligible mail voters to send to the states and to prioritize prosecution of election workers who send mail ballots to “ineligible voters.” While this order is undeniably a setback, the fight over implementation of President Trump’s Executive Order is far from over. Indeed, the Court made clear that it was not passing on the merits; instead, it found that lower courts had entered relief too early. There is still time and ample opportunity for the federal courts to block the President’s unprecedented, unconstitutional power grab, and Elias Law Group is in court leading this fight. In the interim, we stand ready to assist clients with on-the-ground programming to combat any impact on voters as the court battles proceed.
The Supreme Court’s order specifically stayed an injunction issued in Trump v. California, No. 26A124, a case brought by 23 states and the District of Columbia in the U.S. District Court for the District of Massachusetts. That injunction prohibited the federal government from implementing three provisions of Trump’s Executive Order for the 2026 election cycle: (i) Section 2(a)—which directs the Department of Homeland Security to compile and transmit “State Citizenship Lists” to each state; (ii) Section 2(b)—which directs the Attorney General to prioritize investigation and prosecution of officials who issue federal ballots to ineligible voters; and (iii) Section 3—which directs the USPS to promulgate a rule requiring that states provide the USPS with a list of eligible mail voters and use ballot envelopes that contain trackable barcodes.
Importantly, the Court did not hold that the Executive Order is lawful. The stay rests on a narrow, procedural ground: the Court found that the plaintiff states lacked a concrete Article III injury because the government had not yet issued a final implementing rule when the case was filed, making their challenge premature. Justice Sotomayor’s dissent underscores this point, writing that the decision does not address whether the President’s directives are lawful and instead merely postpones that question. This matters practically as well as rhetorically: USPS’s final rule under Section 3, issued last Friday, is the kind of concrete final agency action the Court found missing before—which is the doctrinal basis for the renewed litigation discussed below.
The practical result of the Supreme Court’s order is that there is currently no barrier to the Trump Administration implementing Section 2(a)—the State Citizenship Lists—or 2(b)—the directive to the Attorney General to prioritize prosecution of election officials who issue ballots to ineligible voters.
While we anticipate further litigation over these provisions, the ability of the Trump Administration to move forward for now should not be taken lightly. If the Administration does produce state-based eligibility lists, such lists are likely to rely on flawed databases with limited personally identifiable information. Indeed, the Administration’s own lawyers have admitted as much in court. As a result, we believe eligible voters face a heightened risk of being improperly purged or challenged in post-election proceedings. We recommend consulting with your Elias Law Group attorney on programmatic plans we can put in place to help avoid disenfranchisement from State Citizenship Lists and help protect vulnerable election officials from being intimidated in carrying out their duties.
Separately, just last Friday, the USPS promulgated the final rule it was directed to issue under Section 3 of the Executive Order. That final rule wasn’t subject to the original injunction or the Supreme Court’s order. Because the rule is now final agency action—the precise kind of concrete injury the Supreme Court found lacking in staying the first injunction—parties challenging the Executive Order in court are now on firmer procedural footing than the original suit had at the same stage. This afternoon, Elias Law Group filed renewed litigation on behalf of the DSCC, DCCC, DGA and DNC to seek to enjoin that final rule. If successful, this litigation will practically ensure the federal government cannot move forward with Section 3 of the Executive Order, thus undoing the harm from the Supreme Court’s order.
We will continue to keep clients posted as the litigation evolves.