KBJ Warns of “Kafkaesque Nightmare” After Pro-Trump Supreme Court Ruling on Mail Voting. We’ll Know Soon Enough.
Slate · L · trust 42/100
Last March, Donald Trump issued another one of his executive orders trying to assert control over how the United States conducts its elections. On Monday, after a long delay, the Supreme Court let Trump take a small step forward toward implementing its rules, over the objections of the three Democrat-appointed justices. One of those rules would bar the United States Postal Service from delivering mail ballots from states that don’t jump through certain Trump-approved hoops. But for both legal and practical reasons, it is still increasingly unlikely that these rules actually can be put in place before November’s midterms, even if they are found to be legal.
Supreme Court procedures and rulings can be technical and hard to understand, but this case is a doozy. So to simplify a bit, the executive order directed USPS to issue rules that would bar the agency from accepting a state’s mail-in ballots unless the state used certain envelopes with tracked markings on them and unless the state produced for USPS a list of citizens eligible to vote. A second part of the executive order directs DHS to create its own lists, which would be made available to the states. And a third part threatens DOJ prosecutions for any election official that knowingly allows noncitizens to get ballots (which is already illegal).
While everyone was waiting for USPS and DHS to finalize rules that would put all of this into effect for November, 23 states and Washington D.C. got a federal court injunction preventing USPS and DHS from putting out their final rules. They argued that these rules are unconstitutional because the president has no power over how states run their elections. The states pointed to the changes they would have to make now in anticipation of a possible final rule. The trial court issued an injunction barring any final rule from being applied to the plaintiff states for November’s elections.
Separately, voting rights groups went to the court and asked for a nationwide injunction barring the USPS rule. The trial judge issued that injunction more recently, finding that these groups too have been injured by having to take steps to assist voters for November’s elections.
After failing at the appeals court in the 23-state case, the federal government went to the Supreme Court on July 27 asking it to put the lower court’s order on hold, arguing that the injuries were speculative because the agencies had not yet issued a rule. The government did not defend the expected rules on the merits; they only raised the technical arguments about the cases being premature. The Supreme Court sat on the government’s request for an inordinately long period of time, so just this past Friday night the USPS issued its final rule, which did pretty much what the Trump executive order told USPS to do. The plaintiffs’ fears turned out to be well-founded.
In Monday’s Supreme Court ruling, the court held that the district court was wrong in the 23-state case, because the injuries were premature and too speculative given that USPS and DHS had not issued final rules. It said the case was not ripe and the states did not have sufficient standing until the rules issued.
The court’s opinion and dissents were no doubt in substantially final form by Friday, and in the late Monday per curiam order the court did not even acknowledge that USPS issued a rule. That was strange. Nor did the court mention that separate nationwide order against USPS. And it went out of its way to say that it was not ruling on the merits of the president’s authority to issue these rules. Its order “does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell.”
Justices Sonia Sotomayor, joined by Justice Elena Kagan, dissented, arguing that the states were injured enough by having to take precautions in case the final rule would issue (again, the rule has since been issued). Justice Jackson wrote a longer dissent for herself, going into more detail about the states’ injuries. She also accused the majority of missing “the Government’s actual objective: to secure our imprimatur for its effort to foment chaos ahead of the November elections.” She noted that the ruling is already causing chaos, and is in tension with other court cases under the so-called Purcell principle cautioning against last-minute election changes that burden election administrators and voters.
“[The ruling] lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges. The Court has held for a while now that even valid election-related legal claims can come too late,” Jackson wrote. “Today’s revelation is that such claims can also come too early— never mind that an election is looming and related harms are presently occurring. Never mind, too, that the Government (which controls the timing of proposed and final rules) can easily game the system.”
The prescience of this warning remains to be seen, but in the meantime, the nationwide order against USPS remains in place. Critically, though, that ruling too was issued before USPS put out its final rule. Which means it would be subject to a similar ripeness argument and presumably fail at the Supreme Court.
I expect the district court in short order to now issue a new ruling on the merits of the USPS rule, and conclude that it exceeds the executive branch’s authority. The 23 states will go back too for a new injunction and they are likely to get it. That’s important because their injuries are more immediately concrete than those of the voting rights groups.
If the trial court rules again as I expect, the government will no doubt go to the appeals court again seeking relief—although this time it will have to argue on the merits that the president does have this authority over elections. Failing relief there, this case will be back before SCOTUS in a matter of days…
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