The U.S. Supreme Court has blocked part of a Trump administration effort to interfere with the midterm elections by instituting last-minute complicated rules governing mail-in balloting.
The Sept. 14 ruling upheld a lower court decision preventing the U.S. Postal Service from implementing portions of an executive order requiring states to compile and verify lists of eligible voters and to use specifically designed envelopes and ballots for mail-in voting.
The high court’s ruling stems from State of California v. Donald Trump, which claimed the changes demanded by the president’s order violate the separation of powers, elections and anti-commandeering clauses of the U.S. Constitution. District Judge Indira Talwani in Boston issued a temporary restraining order in the case in June.
Indira Talwani (Photo by Alex Wong/Getty Images)
But the U.S. Supreme Court ruled Aug. 24 that the states had sued prematurely since the policy had yet to be implemented and therefore had caused no actual harm. The justices allowed the administration to proceed with its plan by allowing the Department of Homeland Security to begin compiling voter lists.
“The court’s disposition of this application does not mean that any measure taken by the government to implement the order will necessarily be lawful,” the conservative majority wrote then. “On that score, time will tell. But the order itself does not harm the states, so the district court lacked jurisdiction to bar the government from trying to implement it.”
Talwani came back three days later with an order pausing specific aspects of the president’s executive order, including a new postal service rule requiring states to use special envelopes and ballots for mail-in voting and to upload voter identities into an online database.
The administration appealed to the Supreme Court Sept. 3, seeking to overturn that injunction. The states countered that rejecting Talwani’s latest order would be “an unmitigated disaster” given that the election is less than 60 days away.
“Each step of this process is fraught with an extreme risk of error. And even if state and local officials were somehow able to implement the new rule perfectly, there is a high risk of technical breakdown, ineptitude and delay on the part of USPS,” the states said in a court filing.
The process would be chaotic because it hasn’t been thoroughly tested, a group of local and state elections officials said in a friend-of-the-court brief.
“Normally, these types of changes would go through significant end-to-end testing,” said the group that included Republican secretaries of state from Georgia, Kentucky and Kansas.
The preparation “necessary to implement the rule in a manner that ensures workability and does not disrupt other ongoing processes that are crucial to a smooth election (such as preparing and proofing ballots, testing equipment, finalizing voter rolls, and training poll workers) cannot be responsibly accomplished in the time that remains. … Attempting to implement the rule now will almost certainly lead to mistakes, delays and confusion for both voters and election officials.”
Justice Brett Kavanaugh agreed with that reasoning in his brief concurrence with the majority opinion. The rule may be legal, but implementing it at this point would be unlawful “because state and local election officials do not have sufficient time to reasonably implement the rule before the elections,” he said.
Samuel Alito
Justice Samuel Alito dissented, arguing the plaintiffs lacked standing to sue the government and that the entire challenge is a “‘Hail Mary’ pass that ‘rarely succeeds.’” Justice Clarence Thomas joined Alito’s dissent.
Trump condemned the ruling, the court, mail-in balloting and liberals in a rambling social media post: “Republicans just got another bad decision from the United States Supreme Court, one that the Court System took forever to give, and then blamed it, in part, on no time left to implement a solution to our totally CORRUPT and out of control Mail-In voting ‘disaster,’ which is a laughing stock all over the World, and where we are the only country that has to endure such a Nation Destroying SCAM.”
The president failed to mention that he has participated in mail-in voting himself. Politico reported that Palm Beach County, Fla., voting records show Trump requested a ballot by mail in July and submitted it in August.
Trump lauded Alito and Thomas, “legends both,” for their dissent but blasted the rest of the court as the dupes of “Dumocrats” in his Truth Social post.
“The Court’s inability and unwillingness to do the right thing for our Country will go down, in a very negative way, in the annals of History. This Supreme Court is bullied and cajoled by the Radical Left into making decisions that have set America back at least a hundred years.”
Trump also took a swipe at the justices he appointed to the court during his first term: Neil Gorsuch, Amy Coney Barrett and Kavanaugh.
“These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves, a Court that is costing the United States Trillions of Dollars with shockingly bad rulings that are of such magnitude that it won’t be easily possible for our Country to recover or heal.”
The League of Women Voters, which led a coalition of voting rights group in a separate lawsuit against the postal service rule, lauded the ruling in part because ballots already have been distributed in some states.
“The decision means that all 50 states can continue to use their existing processes for mail voting, which have proven for decades to be safe, secure, and reliable,” the group said.
The latest Supreme Court decision is a win for the rule of law, according to an American Civil Liberties Union attorney who helped represent the League of Women Voters’ action.
“This decision proves what we know to be true: The president does not run our elections, the U.S. Postal Service does not get to decide whose ballot counts, and voters — not the White House — will decide November’s elections,” said Sophia Lin Lakin, director of the ACLU Voting Rights Project.
Democracy Forward submitted a friend-of-the-court brief urging the justices to consider the vital role mail-in voting plays for victims of domestic and sexual violence: “Voting is a way that survivors can reclaim their power and autonomy — not just by instilling a sense of regained control, but also by providing a pathway for survivors to advocate for their rights and the rights of other victims of abuse.”
“Today’s decision from the Supreme Court affirms what we have been saying all along: The president has no authority to misuse the postal service to invalidate votes,” said Democracy Forward President Skye Perryman. “No court has endorsed the administration’s attempt to interfere with elections.”
Related:
Fewer Americans believe midterm elections will be fair
Trump appeals to Supreme Court to control voter database
Groups seek to prevent Trump from sending armed agents to polling places
Supreme Court’s majority won’t preempt Trump’s mail ballot threats