Published Aug 24, 2026 · SFist.com
California and a group of other states have lost one skirmish with the Trump administration on the Supreme Court’s shadow docket regarding ballots by mail, with the court essentially saying the states can’t sue because they haven’t been harmed yet.
President Trump issued an executive order in March directing the Department of Homeland Security to compile a list for each state of who in that state is eligible to vote, and directing the Justice Department to prioritize the prosecution of state election officials who send mail-in ballots to ineligible individuals.
Trump was, of course, trying to fix a nonexistent problem and sow further distrust in US election ahead of what’s likely to be a midterm season that will be disastrous for Republicans. And a Boston-based federal judge, US Judge Indira Talwani, issued an injunction in June to stop Trump’s order from taking effect, saying that Trump had overstepped in infringing on the states’ constitutional powers to organize and administer elections.
Separately, Judge Talwani issued another injunction in August that blocks the US Postal Service from implementing the demands of Trump’s order, saying that with less than 90 days before the November election, the administration could not begin changing the rules for how elections are run.
On Monday, the Supreme Court issued an unsigned ruling responding only to the first injunction, and the Justice Department’s request that it be stayed. The court’s conservative majority said, essentially, that the states lack standing to prevent a subordinate agency to the president from carrying out his order, because they can not document harm — the harm they cite is merely theoretical until DHS actually begins issuing its own voter rolls, if, for instance, they don’t match states’ own records of eligible voting adults.
“The Executive Order makes no demand of the States, so staying the District Court’s injunction will not concretely harm them,” the majority says. “That is why this suit was not justiciable in the first place.”
The majority adds, “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. On that score, time will tell.”
Justices Kagan and Sotomayor joined in a dissent penned by Sotomayor, in which the justice says that “today’s decision merely postpones adjudication of those challenges” by the states, which are sure to come.
Justice Ketanji Brown Jackson, as has become her style, penned her own more vociferous dissent, saying today’s ruling “needlessly injects chaos and uncertainty into the upcoming midterm elections.” And, she adds that while the court has previously ruled against election challenges that come too late, “today’s revelation is that such claims can also come too early — never mind that an election is looming and related harms are presently occurring.”
A further challenge from the federal court in Massachusetts may arrive as soon as tomorrow, CNN reports.
“The ruling is a win for Trump for the moment, but it doesn’t fully clear the way for his effort to limit mail-in ballots to go into effect,” says CNN Supreme Court analyst Steve Vladeck.
Today’s win for Trump comes less than two months after a loss at the Supreme Court on this same issue. The court ruled 5-4 in June on the issue of late-arriving mail-in ballots, saying that they can and should be counted based on state rules regarding postmarks, so long as the ballots are cast by Election Day. Chief Justice John Roberts and Justice Amy Coney Barrett joined the three liberals in that majority, in a show of support for the legality of voting by mail.
Related: Tens of Thousands of June Mail-In Ballots Tossed, Many Due to USPS’s New Postmark Policy
