The U.S. Supreme Court on Friday temporarily cleared the Trump administration to use a retooled federal database to help states verify the citizenship of registered voters. The action comes 39 days before the November 3 midterm elections.
The order lifts a lower-court block that had frozen the tool since June. It allows the administration to make the system available to states again.
DHS won in a short, unsigned Supreme Court order issued without oral argument. The order pauses the lower-court injunction so DHS can offer states a modified version of SAVE, the Systematic Alien Verification for Entitlements program, while the government’s appeal goes forward.
The order does not decide whether the expanded system is lawful.
With access to the tool now restored, the two sides disagree sharply about what it will do. Government lawyers say it can identify noncitizens improperly listed on voter rolls in the 27 states that use SAVE for that purpose.
The risk is that Social Security records can lag behind a person’s actual citizenship status, particularly for naturalized citizens. The League of Women Voters, the Electronic Privacy Information Center and other challengers say that lag could incorrectly flag eligible voters, who would then have to prove their citizenship.
That risk prompted a federal judge in Washington to block the retooled system in June.
On summary judgment, the judge found that DHS and the Social Security Administration linked SAVE to Social Security records, added citizenship information for U.S.-born Americans and let users run bulk searches. She vacated the program. And ruled those changes violated the Social Security Act, the Privacy Act and the Administrative Procedure Act. The D.C. Circuit left that ruling in place while the appeal proceeded.
The Court said the approaching midterms required quick action on the government’s emergency application, ahead of full briefing and argument. It wrote that the injunction “inhibits the Federal Government’s efforts to assist state and local agencies in the proper administration of the midterm elections.”
In practice, the decision means DHS can now answer state inquiries with the new SAVE checks. The majority said a 1996 immigration law likely requires that result.
The law says Washington cannot block states from sharing citizenship information with DHS, and it says DHS has to answer when state and local agencies ask about citizenship.
Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, dissented and warned that the Court had the harms backward:
“the harm caused by burdening or disenfranchising even a few lawful voters outweighs the nonexistent harm that the Government experiences when it is prevented from taking an action that it likely lacks the authority to take.”
This stay does not allow systematic voter-roll purges before the election. Federal law generally bars large-scale removals within 90 days of a federal election. But states may still use the modified SAVE system for individualized checks.
For now, election officials have a tool they did not have last week, and voters have a new check they could face at the polls.
The broader fight over whether the expanded system complies with federal privacy and Social Security laws is still pending in the D.C. Circuit..
