The D.C. Circuit today affirmed a lower court’s refusal to halt the implementation of President Trump’s EO on mail-in voting. The ruling would allow the Administration to move forward with its implementation of the EO.
But at the same time, the decision comes just days after the Second Circuit declined to stay a different lower court opinion that halted the implementation. The Administration asked the Supreme Court to intervene in that case just yesterday.
Both cases test whether the issue is ripe for judicial review, given that the Administration hasn’t yet implemented the EO.
The two cases leave the EO in limbo, at least in the plaintiff states in the Second Circuit.
The cases test President Trump’s March 31, 2026, EO on mail-in voting. The plaintiffs in the cases argued that the EO’s Sections 2, 3, and 5 exceeded the President’s authority, violated the Elections and Electors Clauses, and violated the Tenth Amendment’s anti-commandeering principle.
Section 2 of the EO directs DHS to compile a list of U.S. citizens and transmit the list to the states. It also provides for investigation and prosecution of state officials who issue or distribute ballots to individuals not eligible to vote. Section 3 directs the U.S. Postal Service to issue regulations governing the design of envelopes for mail-in voting and requiring all ballot mail to be mailed in such envelopes. Section 5 orders the Attorney General and department heads “to deter and address noncompliance” by “state and local election officials” and “public or private entities engaged in” ballot printing or distribution.
The problem with the challenges, according to the Administration and the D.C. Circuit, is that the Administration hasn’t yet implemented the EO, and so we don’t know exactly how the Administration will implement it and exactly what harms it might cause. Without better information about implementation and harms, the reasoning goes, courts can’t judge its lawfulness.
That said, the D.C. Circuit expressed some mixed feelings on the merits. On the one hand, it wrote that the “Plaintiffs have identified a number of serious questions concerning the lawfulness of proposed actions if implemented on the threshold of the upcoming federal election.” (Emphasis in original.) On the other, it said,
Given the Executive Order’s repeated commands for agency action to conform to the law, this court cannot assume that the agencies will impose such late-breaking disruption on the States’ conduct of the 2026 election.