Supreme Court Justice Ketanji Brown Jackson sharply rebuked her colleagues' decision allowing the Trump administration to move forward with parts of its mail-voting executive order, warning that the ruling could create election chaos and leave states trapped between filing legal challenges too early or too late.
"This ruling violates well-established precedents concerning this Court's equitable discretion and needlessly injects chaos and uncertainty into the upcoming midterm elections," the court's junior liberal justice wrote in a 23-page dissent Monday.
Jackson said the decision "lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges."
The court granted the Trump administration's request to stay a lower-court injunction that had blocked implementation of portions of President Donald Trump's March executive order in 23 Democratic-led states and the District of Columbia.
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The unsigned majority opinion did not decide whether the executive order itself is lawful. Instead, the court concluded that the administration was likely to prevail on its argument that the states' challenge was premature because they had not yet suffered a sufficiently concrete injury.
"The Court's disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful," the majority wrote. "On that score, time will tell."
Jackson took aim at that reasoning, arguing that the states were already confronting election-planning costs, threats of prosecution and uncertainty over possible changes to mail-ballot procedures.
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She accused the majority of embracing what she called a "Catch-Me-If-You-Can approach" that could make it difficult for states to determine when an election-related challenge is ripe for judicial review.
The court has previously warned against courts changing election rules too close to Election Day. Jackson argued Monday's decision creates the opposite problem by telling states that some challenges can also come too early.
"The Court does a disservice to all concerned by distorting Article III standing and ripeness principles to issue a ruling that contributes to pre-election chaos instead of quashing it," she wrote.
Jackson also accused the majority of a "lack of situational awareness," arguing that the administration was seeking emergency relief while simultaneously maintaining that the consequences of the executive order remained uncertain.
Trump's March 31 executive order directs the Department of Homeland Security to take steps toward compiling state-specific lists of U.S. citizens and instructs the attorney general to prioritize certain investigations and prosecutions involving allegedly ineligible voters.
The order also directs the U.S. Postal Service to pursue rules governing mail-in and absentee ballots, including ballot-envelope requirements, tracking barcodes and state-specific voter lists.
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The Postal Service outlined plans last week for implementing portions of the order, according to The Associated Press, though the approaching election calendar could limit how much can take effect before November. North Carolina is scheduled to begin sending ballots to military and overseas voters Sept. 4, with other states following soon afterward.
Justice Sonia Sotomayor filed a separate dissent joined by Justice Elena Kagan, arguing that the states already faced sufficiently concrete and imminent injuries to bring their challenge.
The litigation will continue in the lower courts. The Supreme Court's order stays the Massachusetts injunction while the administration's appeal proceeds in the U.S. Court of Appeals for the First Circuit and potentially returns to the Supreme Court.
Jackson closed her dissent by calling the case "not a close call," and arguing that allowing the administration to proceed risked confusion and last-minute disruption ahead of the midterms.
"When the Government's obvious goal is to interfere with the Plaintiff States' practices and prerogatives in a manner that the Constitution does not authorize," Jackson wrote, "it is both a serious legal error and a grave misuse of our equitable emergency powers to let the Executive proceed even one step further."
The Associated Press contributed to this report.
