The Supreme Court sided with the President today. What did the justices actually decide?
They decided a question about timing. The states sued back in April, and the Court said they got to court too early. That’s the whole holding. The majority went out of its way to say this doesn’t mean anything the administration does to carry out this order will be legal. Their words were, time will tell. Three justices dissented. So this is a procedural win for the President, and I’d be careful about calling it more than that.
Does this mean the Postal Service can start turning away mail ballots?
No, and this is the part getting lost today. There are two lawsuits over this order, both in front of Judge Indira Talwani in Boston. She blocked the order in both of them. Today’s ruling touches only one, the case brought by the states. The second case, brought by the League of Women Voters and individual voters, is still blocked. And the Postal Service’s new rule says in its own text that it won’t take effect while that block is in place. So nothing changes today. Voters should request and return their ballots exactly the way they always have.
Remind us what this order actually does.
Three pieces. (1) tells Homeland Security to build lists of confirmed citizens in every state and send them to election officials. (2) It tells the Attorney General to prioritize prosecuting state and local election officials who hand ballots to ineligible voters. And the biggest one, it (3) tells the Postal Service to write a rule holding back mail ballots for any voter a state hasn’t put on a list submitted to the federal government.
The states’ objection is constitutional. Article One gives the job of running federal elections to the states and to Congress. Not to the President. Justice Ketanji Brown Jackson describes what this order would do as a shift from a state-run process to one where the federal government decides who gets a ballot and whose vote counts.
Why did the states lose?
The majority looked at this order and essentially said it’s a memo from the President to his own staff. It tells federal agencies what to do. It doesn’t order the states to do anything. And if nobody’s been ordered to do anything, the majority said, nobody’s been injured yet, so there’s no case.
Justice Jackson’s response is the sharpest thing in the opinion. She says, imagine the President sent a purely internal memo telling the Postal Service not to deliver ballots in states he doesn’t like. Nobody would say those states can’t sue. Calling something internal doesn’t make it harmless.
And Justice Sonia Sotomayor points out the government argued both sides of the clock. It told the Court this was all too uncertain to challenge, while telling the Court it urgently needed to move before November. Her line is that the government can’t have it both ways.
So what happens now?
Watch Boston, not Washington. Judge Talwani has signaled she’s likely to block the Postal Service’s new rule as well. The government’s response is due at eight tomorrow morning, and she could rule the same day. That’s the case that decides whether anything actually changes before November third.
And there’s a trap waiting. There’s a longstanding principle that courts shouldn’t change voting rules close to an election. So if she blocks the rule this week, the administration’s next argument is that it’s too late. Justice Jackson flagged exactly that. Her point is these claims are too early one day and risk being too late the next, and the Court won’t say when the right moment is.
In other words, Goldilocks has nothing on the Supreme Court.
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