Dem
51
Ties
1
GOP
48
SCOTUS strikes again, with yet another unsigned order; this one addressing Donald Trump's executive order that requires states to submit lists of voters, and instructs the USPS to block the delivery of absentee ballots to people in those states that do not comply.
Before we get into the details, it's important to understand what the Supreme Court's order did NOT do. U.S. District Judge for the District of Massachusetts Indira Talwani has imposed a nationwide injunction prohibiting the USPS from implementing Trump's XO, in response to a case brought by the League of Women Voters (LWV). That injunction is still in place and is currently being appealed by twelve Republican states.
The Supreme Court's order addressed an injunction in a separate case, also in front of Talwani, brought by California and other "blue" states challenging the legality of Trump's XO to control and limit mail-in voting. In that case, Talwani had also enjoined the XO but only as to the 23 plaintiff states. It is that injunction, and that injunction only, that the Supreme Court overturned yesterday, on purely procedural grounds.
Talwani's now-dead injunction addressed Sections 2 and 3 of the XO. Section 2 directs DHS to create a nationwide "citizenship" database from state voter rolls and other federal agencies. Section 3 directs the USPS to refuse to deliver mail-in ballots in states that don't provide voter rolls to DHS. On August 21, the USPS issued a "final rule" to implement Section 3, arguably in violation of Talwani's injunction in the LWV case. But in supplementary information published as part of the "final rule," the postal service specifically acknowledges the injunctions in both the California and LWV cases and states that it "will not take actions to implement the rule specifically for the 2026 elections unless and until the government obtains relief from those injunctions." Note the plural "injunctions." So far, Trump has obtained relief from only one injunction in the California case.
Further, as readers may recall, Trump appealed the California case to the First Circuit Court of Appeal and lost there, which is what prompted him to seek emergency relief from the Supreme Court. The Republicans' appeal of the LWV case has yet to be heard in the appeals court.
Given all this, the basis for the Supreme Court's decision, such as it is, is largely irrelevant. It really shouldn't change anything on the ground at this point. But we're a full-service operation, so we'll report that the Court justified its decision on standing and ripeness grounds. In other words, the Court majority claims that the case was brought too soon, which is laughable given the USPS' issuance of what it calls a "final rule" with an effective date of August 21. The Court majority once again hands Trump a victory without actually ruling on whether anything he's doing is legal. And it most certainly is not.
Note, incidentally, that because the order is unsigned, it's not entirely clear which justices were in the majority. However, Associate Justices Elena Kagan and Sonia Sotomayor joined together in a blistering dissent. Associate Justice Ketanji Brown Jackson wrote her own, even more blistering, dissent in which she decreed that the Trump XO "needlessly injects chaos" into the election process, and that yesterday's SCOTUS ruling "also 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." In other words, it wasn't the three liberals in the majority. So, that leaves at least five of the six conservatives, and possibly all six. Some outlets are reporting it was 6-3, but we can find no support for that assertion. Again, since it is unsigned, it's not clear who was in the majority.
To add another wrinkle here, everyone seems to have forgotten about the injunction prohibiting DHS from expanding the SAVE database to include state voter rolls and private information from other federal agencies. It doesn't appear that DHS has appealed that ruling and, instead, has complied with the court's order. So, it's unclear how the USPS can implement this rule when there is no database for states to coordinate with, or for the postal service to check mail-in ballots against.
Meanwhile, also keep an eye on the NAACP's case against the USPS, in which U.S. District Judge for D.C. Emmet Sullivan also enjoined Section 3 of the XO. That injunction was stayed pending appeal in the D.C. Circuit Court of Appeals and that appeal is ongoing. And there are other suits coming, possibly as early as today. Gov. Gavin Newsom (D-CA) promised that would be the case after yesterday's SCOTUS news broke.
Oh, and there are just 74 days left before Election Day and ballots are being prepared as we speak. And early voting by mail will be underway in four states (Minnesota, South Dakota, Vermont and Virginia) by September 19 (a little over 3 weeks from now) and in a fifth state (Illinois) by September 24. By October 7, another nine states will have joined the list. The XO actually applies to the delivery of absentee ballots to recipients, not the delivery of the completed absentee ballots back to the states. Usually, delivery of absentee ballots begins a week before the early-submission deadline. That means that ballots, at least in some states, will be in the mail in just a couple of weeks. So, even if the Trump administration were to triumph on all legal fronts, all the way up to the Supreme Court, by the end of this week (a timeline that is very, very, very unlikely), there just isn't time to implement a major change in USPS procedures prior to this year's midterms.
Finally, for amusement's sake, let's also talk about the possibility of malicious compliance. The XO says that states have to submit lists of voters. It does not say those lists have to be... electronic. Imagine, say, California protecting its voters' access to absentee ballots by delivering a printout, on paper, of the state's voter rolls. If the Golden State listed 50 people per page (and that would be a lot, given all the info demanded by Trump), that would be about 500,000 pages. If the White House/USPS can't make use of that information in a timely manner, or at all, that's not California's problem, since it would be in compliance.
The bottom line is that Talwani's nationwide injunction is still in place and the USPS has stated that it will not implement any new rules "unless and until" relief is obtained from that injunction. It is certainly possible that, once all the dust settles, Trump will get his way here. The extent to which at least five right-wing Supremes bent themselves into pretzels yesterday to sustain Trump, in even a small way, is not promising. But that dust won't settle before Election Day 2026, and is only a potential issue for Election Day 2028. (L & Z)