The Supreme Court Recognizes the Danger of Trump’s Election Plan
· The Atlantic
Neither snow, nor rain, nor heat, nor gloom of night, nor Donald Trump will stop the United States Postal Service from delivering mail-in ballots in the coming midterm elections. Tonight, the Supreme Court handed down an emergency ruling blocking the Trump administration from implementing a new policy that would have made mail-in voting so onerous as to be effectively impossible for election officials to administer. The Court’s decision spares those officials from pointless chaos—and voters from potentially widespread disenfranchisement.
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In the United States, election administration is carried out by a patchwork of local officials working state by state across roughly 10,000 different jurisdictions. Usually, USPS’s role in elections is clear: The Postal Service transports mail ballots to voters from state and local election offices; if voters return their ballot by mail, USPS takes care of that too. The nature of this responsibility has evolved in recent years, particularly during the coronavirus pandemic, as many states shifted toward encouraging voting by mail. The Trump administration looked at this system, which has been popular among voters, and decided to cause havoc by imposing new and arduous criteria for election officials to meet before USPS would commit to mailing ballots.
A number of states and several nonprofits, along with the Democratic Party, quickly brought legal challenges. Before the Court resolved the matter tonight, the cases zagged madly among district and appellate courts, then up to the Supreme Court and back down again. Many judges were skeptical both of the legal basis for the rule and of the speed at which the administration was attempting to implement it, with less than two months to go before the elections.
But despite this broad agreement in the lower courts, experts were uncertain how the Supreme Court would handle the case. The Court’s past friendliness toward even the most legally dubious of Trump’s policies cast into doubt whether the justices would stand against his efforts here, especially after the Court rejected an earlier iteration of the challenge on the grounds that it was premature. “The Supreme Court has made law totally unpredictable,” the election-law expert Justin Levitt told me last week, while the country waited for the justices to rule. “In a normal world, there would be a zero percent chance” that the Court would allow the USPS rule to go into effect. Yet, he went on, “we don’t live in a normal world anymore.”
Our world is still not a normal one. But this time, a majority of the justices on the Supreme Court decided not to make it worse. In a terse, unsigned paragraph, the Court declared that the Trump administration had failed both to make its case on the law and to show that a ruling in Trump’s favor would not upend the upcoming elections. Justice Brett Kavanaugh, in a brief concurrence, indicated that the Postal Service’s plan might have had firm legal grounding but that he’d agreed to block the policy because “state and local election officials do not have sufficient time to reasonably implement the rule before the elections.”
That final part of his assessment is obviously correct. USPS’s plan would have required election officials to upload lists of eligible voters through a Postal Service “portal”—yet the government has given no indication that the portal is operational. USPS would also have required election officials to receive Postal Service approval for the design of their ballot envelopes, but officials have already printed their ballot envelopes and do not have the money or time to create new designs. Last week, a Tallahassee, Florida, paper reported that USPS had rejected the envelope designs submitted by Florida’s Leon County on the grounds that the return address was 0.014 inches too close to other text on the envelope—about the thickness of four sheets of paper.
Election administrators prepare to send out ballots far in advance, and if the USPS rule had gone into effect, election officials might have found themselves unable to count on the Postal Service to mail ballots at all. However conservative the Supreme Court is, “there aren’t five votes for abject chaos,” Levitt wrote to me after the ruling.
Still, Justices Samuel Alito and Clarence Thomas, the pair on the Court who most reliably tilt toward Trump, would have allowed the USPS plan to go forward. Alito’s dissent is strikingly unconcerned with the potential risks to the midterms if the Postal Service were to refuse to mail ballots, noting only that 12 states (all Republican-led) have “asserted that compliance at this time is practicable.” (Local election officials in some of those states disagreed with that assessment in their own court filings, but Alito does not address this.) Moreover, the federal government’s interest in detecting “election fraud” is compelling, Alito declares. As for the last-minute dash to shake up the midterms, Alito manages to blame not the government but the plaintiffs, the lower courts, and even his own colleagues on the bench for the litigation that—he claims—delayed USPS from finalizing its rule.
In a blog post, the UCLA law professor and election scholar Rick Hasen deemed Alito’s dissent “disingenuous.” Among other things, USPS continued working on the rule during the course of the litigation over the summer. And even if the Postal Service had finished the planning process earlier in the summer, state and local jurisdictions still might not have had enough time to rework their envelopes to comply.
Fortunately, officials won’t need to scramble to submit envelope designs to USPS to be measured down to fractions of an inch, or upload voter names into a portal that doesn’t exist. Election workers will likely face plenty of challenges in the month and a half before the midterms. Mailing ballots, though, will not be among them.