The Supreme Court’s Monday decision cleared the way for the Department of Homeland Security to establish a state-by-state list of eligible voters based on a crosscheck of citizenship data, the Social Security database, and other government information.
“The DHS can determine who is eligible to vote because the federal government does not want to be complicit in fraud through sending mail-in ballots to noncitizens,” Jason Snead, executive director of the Honest Elections Project, told the Daily Signal. “So it makes sense as to why the administration would want to prioritize this.”
The list would be shared with states, but states are not obligated to use the list to police voter rolls.
High-profile Democrat election lawyer Marc Elias expressed alarm over the high court’s ruling in a statement on his website, Democracy Docket.
Regarding the DHS list of eligible citizens, Elias said, “It orders the federal government to compile a list of Trump-approved eligible voters to be sent to the states.”
“Under the order, the USPS is to conduct a rulemaking whereby it dictates to states how mail-in ballots are to be identified and tracked via a unique barcode,” Elias said. “It also directs the USPS to refuse to carry or deliver mail-in ballots to anyone not on a preapproved list of voters submitted by the states to the USPS in advance of the election.”
The high court’s 6-3 ruling on Monday was not on the merits of the executive order, but rather on the question of whether states had standing when making a speculative argument about what effect the order would have.
“The plaintiffs and states should prepare to implement changes,” Donald Palmer, former chairman of the Election Assistance Commission, told the Daily Signal.
“There is legally a path for the executive order to be implemented before the election,” Palmer, now a senior legal fellow at The Heritage Foundation, added. “There will be a flurry of litigation. Some courts will say the entire order is unconstitutional and illegal, and the Supreme Court will decide.”
The USPS rule was finalized last week and is set to be published in the Federal Register on Wednesday. The Postal Service rule requires election officials to upload the names and addresses of mail-in ballot recipients to a Postal Service portal before the ballots are sent to voters. Ballots not added to the portal would be rejected. The Postal Service is also using new standardized envelopes with barcodes.
However, in a separate case, the same judge who previously imposed an injunction on the order in a case brought by 23 states, U.S. District Judge Indira Talwani of Massachusetts, imposed a separate injunction on the USPS rule in a case brought by the American Civil Liberties Union and other liberal organizations.
That judgment is likely a formality, Palmer said, since the Justice Department filed a motion with Talwani to drop the injunction in light of the high court ruling, or the ruling will be appealed.
Though it was a decision on standing rather than the merits of the executive order, that is still significant in curbing what plaintiffs can do, and what national policy district court judges can block, said election lawyer Cleta Mitchell, chairman of the Election Integrity Network at the Conservative Partnership Institute.
“I obviously wish the Supreme Court had stepped up and stopped the challenge in its tracks,” Mitchell told the Daily Signal. “It may have been necessary to rule on standing to get the votes. At some point, the Supreme Court should step in with the tyrants in black robes and let them know they are not the president, they are not the legislature, and they are not the state election board.”
