Last Monday, days after a federal appeals court blocked and enjoined key parts of Trump’s executive order restricting mail-in voting, Trump turned to the Supreme Court, once again, for help in rigging the midterms. Solicitor General John Sauer filed an emergency application for a stay of that injunction, claiming the appellate court prematurely ‘interfered with’ Trump’s righteous efforts to ‘promote election integrity.’
The Constitution vests control over federal elections with the states, reserving a secondary role for Congress, and an even more attenuated role for the executive branch. Under Article I, Section 2 and the 10th Amendment, states—not the president— determine who is eligible to vote.
The executive branch, by Constitutional design, has a limited role in federal elections. The founders built an intentionally decentralized structure because they knew that giving control over federal elections to the executive branch would be letting the fox guard the henhouse. This particular fox, modeling the rationale behind the design without understanding it, has been relentless in trying to eat the hens.
Trump’s unprecedented election-rigging efforts
After Trump lost the 2020 election, he got caught on tape pressing government officials in Georgia to “find” an extra 11,000-plus votes. Since his return to office, Trump has continued his unprecedented election rigging scheme through a series of actions intended to wrest control of federal elections away from the states. Ignoring the Constitution’s clear, limiting mandates, Trump has tried to arrogate control over federal elections to himself by:
- Bullying the Senate to pass the SAVE Act, already passed by the House, which would prevent more than 21 million Americans without a current passport or birth certificate from voting.
- Threatening to imprison Democratic elections officials who refuse to turn over confidential voter rolls.
- Demanding that red states gerrymander to eliminate black voting majorities, to defeat democrat candidates with former strong leads in Texas, Florida, Missouri, Tennessee, Louisiana, and Alabama.
- Threatening to station armed, masked ICE agents at polling places to intimidate women and minority voters.
- Raiding election offices in Fulton County, Georgia, and seizing reams of sensitive voting records.
- Ordering the US Post Office not to deliver mail in ballots to addressees he doesn't approve.
Aside from these overtly illegal actions, Trump's oligarchs are spending hundreds of millions to elect candidates who won't tax their wealth, and won't enforce corporate, financial, AI, and environmental regulations they dislike. Trump’s political action committee has raised over four hundred million dollars since the 2024 election. Meanwhile, Republican super PACs have nearly twice as much cash on hand as their Democratic equivalents, and the world’s richest man, Elon Musk, is at it again. Undeterred by a felony probable cause finding of election bribery, Musk has emerged as one of the single largest individual donors backing Republican candidates in the upcoming midterms. He has donated $90 million to date, with far more expected.
Trump’s EO to weaponize the U.S. Post Office
The midterms are less than 100 days out. Poll after poll on the congressional generic ballot shows Democrats with an advantage, but only a slight one. Republicans’ prolific gerrymandering, coupled with their oligarch-juiced fundraising advantage, and Trump’s relentless attack on free and fair elections, outlined above, is turning what should be a blue tsunami into a reddish purple rain.
The administration’s chief legal argument now pending before the Supreme Court, as presented Monday, is that the underlying suit against Trump’s EO on mail-in voting is premature or unripe. The administration argues that Trump’s EO is merely “internal policy guidance” to agencies, and it is up to them how they implement it, therefore no harm is present, and there’s no standing to challenge it. Trump’s emergency application argues that, the injunction is premature because Trump’s Order “merely sets forth general policy guidance, leaving substantial discretion to agencies about how to implement the Order while admonishing them that they may do so only consistent with applicable law.”
Trump, doing everything he can to spread skepticism about a federal election he’s about to lose, is reaching for massive voter disruption right before the November midterms. Claiming before the Supreme Court that agencies can “only act consistent with applicable law” under his EO is a legal punt designed to run out the clock; what actions are ‘consistent with applicable law’ depends on who is doing the interpreting. Under the administration’s argument, Trump’s anti-mail-in voting EO won’t be ‘ripe’ for review until after states have begun implementing Trump’s directive and the USPS has stopped delivering ballots. By then, the election will be underway, and it will be too late for voters to do anything about it.
Ruling for Trump on his EO would be a major departure from recent Supreme Court precedent confirming that states, not the president, get to control elections, but skeptics will note that this emergency application is pending on the shadow docket, where rationale and precedent are quite often subordinated to partisan results.
Sabrina Haake is a political analyst and 25+ year federal trial attorney specializing in 1st and 14th A defense. She writes the free Substack, The Haake Take.
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