Supreme Court's conservative majority revives Trump's citizenship database for voter-roll checks, 6 to 3

The Supreme Court on Friday cleared the way for the Trump administration to resume operating its revamped citizenship-verification database, handing the White House a pre-election victory in its long-running campaign to squeeze noncitizens off state voter rolls. The vote was 6 to 3, split along ideological lines. The ruling lands 39 days before the November 3 midterms.

The decision reversed a block that U.S. District Judge Sparkle L. Sooknanan had imposed in a June 22 order, which found that the Department of Homeland Security "knowingly trampled on the privacy rights of American citizens" by expanding the Systematic Alien Verification for Entitlements program, known as SAVE, without completing required Privacy Act procedures. Judge Sooknanan had blocked the use of the tool, finding it violated Americans' privacy rights and could result in voters being wrongly removed from the rolls. A federal appeals court let her order stand.

The Trump administration went directly to the Supreme Court. The justices, divided 6 to 3 on ideological lines with conservatives in the majority, granted an emergency request filed by the government after lower courts ruled that the Trump administration's changes to the database were likely unlawful. The majority's opinion was unsigned.

What the majority said

The Supreme Court majority found that a 1996 law explicitly allows DHS to get information about citizenship and immigration from other federal agencies. The federal government also has "an obligation to respond" to states seeking to verify citizenship. "The order below prevents the Federal Government from using the program it believes is best suited to the task," the majority wrote in the unsigned order.

In siding with the Trump administration, the court's majority wrote that the lower court order that halted the expanded SAVE prevents the federal government "from using the modified SAVE program to conduct individualized inquiries, which are permitted under federal law during this [90-day] period." The government had argued the older version of the system was too slow to be useful in the run-up to the election.

The modified SAVE program pulls in Social Security Administration records alongside DHS immigration files. The older system undermines the goal of voter-roll maintenance and works too slowly for use during the midterms, government lawyers argued. States' use of the SAVE program is voluntary.

Jackson's dissent

The pushback from the court's three Democratic appointees was pointed. Justice Ketanji Brown Jackson, in a dissent joined by Justices Sonia Sotomayor and Elena Kagan, wrote that the majority opinion "focuses only on the harms the Government will purportedly suffer absent a stay, disregarding the harms that the modified SAVE system has caused, and will likely continue to cause, to lawful voters."

Jackson wrote about the "majority's omission of any consideration of the harms that might occur if the modified SAVE system is allowed to continue operating. The District Court highlighted such harms, noting the risk that States might cancel the voter registrations of at least some recently naturalized citizens or force such persons to provide proof of citizenship before voting."

Jackson conceded the immediate damage before November 3 is probably contained. She wrote that "if there is a bright side to today's opinion ... it is that the ruling will likely have minimal short-term impact, as States will at most conduct individualized voter-roll maintenance using the modified SAVE system ahead of the November elections." But she added: "In my view, however, 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."

She also went after the procedure. Jackson warned, "without full briefing or oral argument, this Court now grants one, rendering questionable interim rulings about two statutory provisions it has never before interpreted." She said DHS had rolled out the updated SAVE system without completing procedures outlined in the Privacy Act. This echoes a broader critique Jackson has recently aired publicly: in a recent public appearance, Jackson said the high court's use of the emergency docket was "problematic" and called for more restraint from her colleagues when using it.

Real-world accuracy questions

The accuracy of the expanded database is not a hypothetical concern. A recent press release from the Texas secretary of state revealed that of 2,724 voters initially flagged by SAVE as potential noncitizens, some 20 percent were later found to be citizens who were reinstated. The same release said the office referred 117 cases identified by SAVE, or 4.2 percent of those flagged, for investigation for possible noncitizen voting.

Errors with the SAVE database are most likely to impact naturalized U.S. citizens, rather than people who were born in the U.S., as the federal records used in the SAVE database may not have been updated to reflect that the voter's citizenship status has changed. NPR previously reported that earlier iterations of SAVE-based purge efforts resulted in confirmed citizens being removed from rolls.

Limited but real midterm window

The ruling does not open the door to mass voter purges before November. The court noted in its unsigned ruling that the National Voter Registration Act bars the broad purging of voter rolls in the weeks leading up to an election, which "limits the potential impact" of the decision this year. States can still make individualized queries about voters.

Put another way: Friday's decision allows the Trump administration's modified SAVE system to continue operating while appeals continue, meaning that states can make inquiries again. However, the court noted that federal law generally bars states from conducting voter roll purges within 90 days of a federal election, meaning the short-term impact of the stay is potentially minimal, but its impact could be felt more so long term.

Plaintiffs' reaction

The coalition of organizations that challenged the SAVE overhaul last year, which includes the League of Women Voters and the Electronic Privacy Information Center, put out a statement on Friday that said litigation in the case is ongoing. "Today's decision is profoundly disappointing, as it puts millions of Americans at risk of being unlawfully targeted by the administration's unreliable voter purge database weeks before the midterm elections," the statement reads. The groups said they will continue to press the case on the merits before the lower courts.

Where this fits

The effort to create a national voter list is among numerous steps Trump has taken during his second term to try to overhaul the way elections are run. Most of those steps have been blocked by various courts, in part because the Constitution gives states and Congress the authority to set election rules, but provides no such power to the president.

The SAVE ruling is the second time in two weeks the court has weighed in on election administration. In mid-September, the Supreme Court rejected a bid from Trump to restrict mail ballot procedures before the midterms. That decision went against the administration, 7 to 2. Friday's ruling goes the other way.

Research shows that noncitizen voting, which is already illegal and punishable as a potential felony that could lead to deportation, is exceptionally rare. The administration has not produced evidence of systematic noncitizen voting, but has argued that even the possibility justifies aggressive verification.

Over at the Capitol on Thursday, the Senate rejected a resolution to block President Donald Trump from ordering further strikes on Iran, even as Republicans voice growing concern about the war ahead of the midterm elections. The measure failed on a 49-to-50 vote after passing the House in July. Four Republicans, Senators Rand Paul of Kentucky, Susan Collins of Maine, Lisa Murkowski of Alaska, and Thom Tillis of North Carolina, defied Trump and joined Democrats in voting for it. That vote, covered separately, underscores how much of the week's Washington action has converged on two fronts: the courts and the war.

What to Watch

• The underlying SAVE litigation continues before lower courts. The Supreme Court's emergency stay is not a final ruling on the merits, so a full decision on whether the expanded database violated the Social Security Act or the Privacy Act is still ahead.
• Watch which Republican-led states move first to query the SAVE system before November 3. Texas has already been the most active user; other battleground states with competitive Senate or House races could follow.
• Justice Jackson's public criticism of the emergency docket, combined with her sharp written dissent Friday, is increasingly shaping the terms of debate over how the court uses its "shadow docket." That argument will almost certainly be raised in the next round of election-related emergency applications.
• Congress.gov shows the Senate Intelligence Committee is scheduled to meet September 29. Any classified briefing on the Iran situation, following this week's abrupt military planning reports and the failed war powers vote, could put new pressure on members heading into October recess.

Sources: NBC News (Lawrence Hurley and Jane C. Timm) | NPR | ABC News / Associated Press | Roll Call | Forbes | The Washington Sun | KPBS / NPR | Newsweek | The Washington Post