SUPREMES SIDE WITH TRUMP ADMINISTRATION IN VOTING CASE
John Hinderacker, Powerline
Yesterday, the Supreme Court issued a per curiam order staying a district court order that had blocked the Trump administration from implementing an election security measure. The case is Department of Homeland Security v. League of Women Voters. (As always, I encourage our readers to read the Court’s opinions for themselves. They are not impenetrable, and you don’t have to be a lawyer to follow them.)
The program in question arose from an executive order by President Trump that expanded the scope of the Systematic Alien Verification for Entitlements program, enacted in 1986. Historically, that program has provided an avenue for federal, state, and local government agencies to verify the citizenship and immigration status of noncitizens applying for public benefits. Trump expanded the program by executive order last year, directing the Department of Homeland Security to put systems in place to allow state and local officials to verify the citizenship status of registered voters or persons registering to vote, and directing the Social Security Administration to make its records available to DHS for that purpose.
The Court described the impact of Trump’s executive order:
The modified program differed from the original in two key respects. First, it incorporated checks against additional records—including social security numbers (SSNs)—maintained by SSA. Second, it allowed state and local authorities to conduct bulk searches of multiple individuals at once.
The issue in the case was whether Trump’s order violated privacy provisions of the Social Security Act or the Privacy Act of 1974. The Court’s 6-3 majority held that Trump’s order was authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996:
The first, section 1373(a), provides:
“Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the [DHS] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
Like so many recent cases, this one came to the Court in a preliminary stage, so the Court held that the administration is likely to ultimately prevail on the merits, stayed the anti-Trump order that had been issued by the district court, and sent the case back to the district court for further proceedings.
The Court’s decision received quite a bit of attention, perhaps out of proportion to its practical import. Here are a few observations about it:
District court judges loyal to the Democratic Party have tried to interfere with virtually everything the Trump administration does, especially when it relates to illegal immigration. It is easy for plaintiffs recruited by the Democratic Party or other left-wing groups to judge-shop to get their cases in front of such judges.
These Democratic Party judges consistently enter orders barring the administration from implementing the policy in question. The cases then reach the appellate courts, sometimes the Supreme Court, in that posture. The Trump administration has won most of these cases, but the purpose of delay is always achieved, to some degree. The Supreme Court has had no choice but to get involved, lest partisan judges completely hamstring the administration with bogus legal rulings.
This case has gotten quite a bit of attention, but I don’t think it will have much impact, at least as regards the 2026 elections. This is true for two reasons, one of which was acknowledged in the Court’s per curiam opinion:
The plaintiff organizations argue that the Federal Government will not suffer irreparable harm because federal law currently prohibits state and local election authorities from clearing their voter rolls in the weeks leading up to federal elections. The organizations point to the National Voter Registration Act (NVRA), 52 U. S. C. §20507(c)(2)(A), which provides that “[a] State shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.”2 To be sure, that moratorium limits the potential impact of staying the District Court’s order in this case. Still, all agree that the order prevents the Federal Government from using the modified SAVE program to conduct individualized inquiries, which are permitted under federal law during this period. The District Court’s order thus inhibits the Federal Government’s efforts to assist state and local agencies in the proper administration of the midterm elections.
The second reason why the order won’t have much impact is that the modified SAVE system simply authorizes federal agencies to cooperate with state and local agencies who seek assistance in verifying the citizenship status of voters. But voter fraud occurs mostly in blue states and localities, and it happens because government authorities in those states (Democrats) want it to happen. So I doubt there will be many requests coming in from the jurisdictions where most fraud occurs.
Finally, the Supreme Court’s three political justices–Kagan, Sotomayor and Jackson–dissented from the per curiam opinion. This is a consistent pattern, pretty much every time any interest of the Democratic Party is at stake. In this case, as in quite a few others, the dissent was written by Justice Jackson. To be fair, however, and contrary to her reputation, Jackson’s dissent in this case is not stupid. I don’t think it is ultimately persuasive, but she makes a decent argument, enabled by the fact that the multiple statutes at issue in this case are drafted, as is generally the case, with less than mathematical precision.
