It was inevitable that we would reach this point. After a string of humiliating defeats in court, the Department of Justice asked the Supreme Court in an emergency appeal yesterday afternoon to let it seize control of mail voting ahead of the midterms. Because the Court term ended in early July, this case will be considered on the so-called shadow docket.

 

On March 31, 2026, Donald Trump signed a sweeping executive order asserting presidential power over the conduct of the midterm elections. That order — titled "Ensuring Citizenship Verification and Integrity in Federal Elections" — directs the Department of Homeland Security to compile a "State Citizenship List" of people the administration claims are eligible to vote.

 

The order also directs the Postal Service to write a rule barring it from delivering absentee ballots to anyone not on a separate, state-submitted list of approved voters — a list states would have to hand over to USPS at least 60 days before a federal election.

 

Backing up this effort is a directive to the Justice Department to prioritize investigating and prosecuting anyone involved in printing, producing, shipping or distributing ballots to voters deemed ineligible — a category broad enough to target state and local election officials and postal workers. It also threatens to cut off federal funding to any state that doesn't comply.

 

Like Trump's prior efforts to claim powers over federal elections that he does not have, this one was blocked by a federal court. A group of 23 Democratic-led states sued and won. After the First Circuit upheld that victory, the DOJ went to the Supreme Court.

 

Notably, this is not Trump's first attempt to use a national database to try to coerce states into removing voters from the rolls. Last year, he signed an executive order that directed DHS to compare state voter rolls against federal immigration databases, ordered federal agencies to give state officials access to citizenship-verification systems, and threatened to cut off funding to states that didn't comply.

 

I sued to block that order on behalf of the Democratic Party and won. The DOJ has appealed that defeat to the D.C. Circuit.

 

Then there are the 30 states DOJ has sued for access to their unredacted voter files. My law firm intervened to defend voters and voting organizations in those cases as well. DOJ is 0-17 in the cases that have been decided — including 0-8 in cases decided by judges nominated by Trump. We are undefeated.

 

Trump and his allies have a history of picking a particular tactic each cycle to undermine elections. And, collectively, these cases reflect a plan of attack for 2026.

 

The 2020 election was marked by Trump's relentless attacks on mail-in voting in the middle of a pandemic. I litigated against him and his allies both before Election Day and afterward over the rules for counting and discarding mail-in ballots.

 

In advance of the 2022 midterms, Republicans turned to the states, enacting sweeping voter suppression laws to aid their chances. Georgia's SB 202, Florida's SB 90 and Texas's SB 1 were among the best known of these, but there were many others. In each instance, my team and I sued to mitigate the harmful effects of these anti-voting laws for the midterm elections.

 

In 2024, Trump focused on giving Republican election deniers more authority to contest the certification of elections. And for those in positions of power, he gave them the authority to refuse certification if Joe Biden or Kamala Harris had prevailed.

 

For 2026, the Republican game plan is clear: gather data from state and federal governments to create a nationwide voter file. Then use it to disqualify lawful voters who lean toward Democratic candidates.

 

That is why the DOJ is suing states to access their unredacted voter rolls. It is why each of his anti-voting executive orders focuses on national and state voter databases. Most importantly, it is why the DOJ filed its emergency application in the Supreme Court.

 

The DOJ's strategy in the high court is to focus on standing rather than the merits of Trump's executive order. Essentially, the DOJ wants the Court to reject the states' case because nothing concretely bad has happened yet — the DHS has not yet sent states their lists, the Postal Service hasn't finalized its rule, and no one has been prosecuted.

 

In the DOJ's telling, none of these things may ever happen. Perhaps DHS will ignore Trump's directive, maybe the Postal Service will deliver everyone's ballots, it's possible federal prosecutors won't conduct investigations.

 

It is a remarkably cynical legal strategy. But cynicism is what fuels this administration. It is infused in virtually every argument it makes in public and in court.

 

By now, most lower courts have figured out the games DOJ lawyers are willing to play. They have grown impatient with the shell games intended to hide the administration's motives and shield its actions from judicial scrutiny.

 

That is why the DOJ keeps losing cases; it is why they lost this case; and it is why the Supreme Court should summarily dismiss the DOJ's appeal in this instance.

 

Election Day is still months away, but democracy is on the Supreme Court’s shadow docket. Let us hope the high court realizes the stakes, recognizes the games, and sides with free and fair elections.

 

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