By Erwin Chemerinsky / LA Times Commentary / August 26, 2026
The Supreme Court’s ruling on Monday allowing President Trump’s executive order on mail voting to go forward is stunningly insensitive to the context: Trump is trying to exercise control over elections when he has absolutely no authority to do so. In one sense, the justices decided nothing, simply saying it was too soon for federal courts to get involved. But in a more important way, the court could have and should have put an emphatic end to the president’s efforts to try to regulate voting operations that are legally the domain of state governments.
The context for the Supreme Court’s ruling is Trump’s repeated assertion that noncitizens are illegally voting in the United States. However, many studies done on this topic have come to the same conclusion: Instances of noncitizens voting are extremely rare.
One study from 2017, by the Brennan Center for Justice, looked at 42 jurisdictions across which more than 23.5 million votes were cast, and found only 30 instances in which there were investigations into noncitizens voting — or 0.0001% of ballots cast.
Utah did an exhaustive review of its entire voter list from April 2025 through January 2026. After looking at more than 2 million registered voters, it found only one instance of a noncitizen registering to vote and zero instances of a noncitizen actually voting. In Georgia, a 2024 audit of its 8.2 million registered voters found only 20 noncitizens who had registered.
In 2025, Trump issued an executive order requiring that states verify a person’s citizenship in order for the individual to register to vote. A federal district court quickly enjoined this order, explaining that the president has no authority whatsoever over voter registration.
Trump then turned to Congress and urged it to pass the SAVE Act, which would require that individuals provide proof of citizenship when registering and show photo identification at the time of voting. It would require voters submitting absentee mail-in ballots to provide a photocopy of their ID. And the bill would mandate that states share voter registration data with the federal government, which most states have refused to do. It would also create personal criminal liability for election officials who violate the law.
Although the House of Representatives passed a version of the SAVE Act in February, it has died in the Senate, where there is no chance of getting the 60 votes needed to end a filibuster and pass the bill. Undaunted, the Trump administration drafted Executive Order 14399, which does three things. It orders the secretary of Homeland Security to create and send citizenship lists to each state. It requires the U.S. attorney general “to prioritize the investigation and, as appropriate, the prosecution of state and local officials or any others” who issue ballots to ineligible voters. And it orders the U.S. Postal Service to engage in proposed rulemaking to restrict the delivery of absentee ballots.
A federal district court issued a preliminary injunction against this executive order as an unconstitutional effort by the president to control the states’ election processes. The federal court of appeals upheld the preliminary injunction. But in Trump vs. California, the Supreme Court, in a 6-3 ruling on its emergency docket, reversed the lower courts and allowed the executive order to remain in place, for now.
The court’s ruling was entirely procedural, saying this is not the right way or time to challenge this executive order. The justices explained that no one was hurt by the Department of Homeland Security compiling a list of citizens who are eligible to vote or by the president instructing the Justice Department to prosecute election officials who allow ineligible voters to cast ballots.
The court also said that the U.S. Postal Service had not yet issued regulations so it was too soon to challenge them, and explained that it “is not a proposed rule, let alone a final rule.” The court ended its opinion by clarifying that its ruling does not mean that it will find the executive order to be lawful, just that it cannot review it now.
But the problem with this analysis is that it ignores the context that Trump is attempting to do something he has no constitutional authority to do. The very title of the executive order, “Ensuring Citizenship Verification and Integrity in Federal Elections,” makes clear that Trump’s purpose is to try to force by executive order what he could not get Congress to pass. As Justice Ketanji Brown Jackson said in her dissent, the executive order “involves the President, whom the Constitution vests with no express authority over elections, undertaking a substantial and unfunded overhaul of election practices.”
The court’s ruling is especially disingenuous because on Friday, the Postal Service did promulgate regulations limiting the use of the mail for delivering absentee ballots. The case is now very much ripe for review. With the midterm elections now less than three months away, delaying ruling on the executive order only creates confusion as to what rules will be followed.
This is why the Supreme Court should have upheld the preliminary injunction stopping Trump’s executive order. As Jackson powerfully said at the conclusion of her dissent: “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, 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.”
Erwin Chemerinsky is the dean of the UC Berkeley Law School.
