A federal appeals court ruled Tuesday that the federal government can continue implementing President Donald Trump’s executive order limiting vote-by-mail, reaching the opposite conclusion that another appeals panel decided over the weekend.
The conflict appeared to make it even more clear the issue will have to be settled by the U.S. Supreme Court, which already has been asked for its opinion on Trump’s sweeping order that would have a huge impact on states just a little more than three months before the midterm elections.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said Tuesday the executive order, which directs the U.S. Postal Service to collect from states lists of eligible voters who intend to vote by mail at least two months before an election and the Department of Homeland Security to compile lists of voting-age citizens in each state, can proceed because the agencies have not yet written rules implementing the order.
A D.C. trial judge in May denied several voting rights groups’ request to block the order, saying the groups had not yet been harmed.
Judges Patricia Millett and Robert Wilkins, who were appointed by President Barack Obama, and Gregory Katsas, whom Trump appointed, affirmed the decision.
They wrote that the executive order, which Trump signed March 31, is not self-executing and specifically tells the USPS and DHS to write the prescribed rules in a way that is consistent with the federal laws the groups say the order violates.
“We affirm because, while Plaintiffs have identified a number of serious questions concerning the lawfulness of proposed actions if implemented on the threshold of the upcoming federal election, this case likely is unripe for review in its present posture,” they wrote.
Their order directly contradicts a ruling the U.S. 1st Circuit Court of Appeals published Saturday in a case brought by Democratic officials from 23 states and the District of Columbia.
That opinion held that states would be harmed if the order was allowed to proceed because state elections officials would immediately have to shift significant resources to prepare to meet the order’s requirements, even without final rules from USPS or DHS.
The Trump administration appealed that ruling to the U.S. Supreme Court on Monday. Justice Ketanji Brown Jackson, the justice assigned to the 1st Circuit, requested briefs on whether the court should hear the case by Aug. 3.
In a social media post, the voting rights legal group Democracy Docket, which is not affiliated with the case, called Tuesday’s ruling “a loss for voters” and said the administration under it could build a citizenship roster and withhold mail-in ballots from states that do not share citizenship data.
