The Supreme Court on Monday lifted an injunction on an executive order that would create citizenship lists to control who can vote and give the federal government control over who receives a ballot. But another injunction keeps the order blocked, for now.
The three liberal justices dissented.
The unsigned majority wrote that the states suing the government lack standing, and that the time isn’t ripe for their lawsuit. They argued that the injury to the states is too tenuous — premised on actions the Homeland Security secretary may take in the future in response to the order.
“Article III prohibits federal courts from stacking hypothetical on hypothetical to speculate that harm will eventually materialize,” they wrote.
They also claimed that the states “lack a ‘well-founded fear’ that they will be prosecuted for not using the Lists.”
Adding a patina of surrealism to the whole exercise, where much of the majority’s ruling is premised on the hypothetical nature of rule, the United States Postal Service this week issued a final rule laying out how the order will be enforced (The USPS suspended that rule’s implementation until injunctions against the order are lifted.). Monday’s ruling is frozen in amber, with all the justices writing as if the USPS rule had only reached the proposed stage, and the unnamed conservatives arguing that the earliness of the proceedings robs states of the standing they’d need to sue.
Justice Sonia Sotomayor, joined by Justice Elena Kagan, pointed out the inherent contradiction in the government’s position: that the order is a mere suggestion that might not even be implemented and does not trample on state sovereignty, but is also critical enough that the administration is suffering an irreparable injury by not being allowed to enforce it.
Justice Ketanji Brown Jackson went much further, openly accusing the majority of shifting the election lawsuit goalposts based on the identity of the plaintiff. Here, that plaintiff is a collection of blue states.
“[I]t declines to explain when, exactly, is the right time to bring a meritorious election-rule claim challenging unconstitutional interference with electoral processes,” she wrote. “The majority just signals that these claimants had to wait — even though the election cycle had started and despite facing pocketbook costs, threats of prosecution, and an affront to their sovereignty — before receiving the relief to which they are likely entitled.”
In perhaps the most candid assessment of the partisanship of the Court’s majority yet, Jackson argued that it “inappropriately transforms our discretionary emergency docket into a forum for mandatory review of this Administration’s arguments.”
She added that the majority is facilitating “a patently inequitable Catch-Me-If-You-Can approach to pursuing the President’s policy agenda.”
She also wrote that the government can’t be irreparably harmed by unconstitutionally interfering in state-run elections.
“Taking its eye off the ball, the majority misses the Government’s actual objective: to secure our imprimatur for its effort to foment chaos ahead of the November elections,” she said.
Read the order here:
