Mail ballots for the November 3 election are scheduled to start going out to voters in some states as soon as next week, 60 days before the midterms. On Monday the Supreme Court handed President Trump a procedural victory in his effort to put the U.S. Postal Service in charge of which ballots travel. The unsigned opinion in Trump v. California reads the March directive as a bureaucratic shrug. It is not a bureaucratic shrug. It is the executive branch telling states which of their citizens get to vote, and under what paperwork.
His language was not ambiguous. “The USPS shall not transmit mail-in or absentee ballots from any individual unless those individuals have been enrolled,” Mr. Trump wrote in the March order. That is not internal procedure. A group of states sued and obtained an injunction from a federal judge who understood exactly what was happening. That judge was early, which is what judges are supposed to be when a presidential order reaches for control of how Americans vote.
The unsigned majority opinion — there is no named author, in keeping with the Court’s shadow-docket practice for orders of this kind — concedes that the order “orders the Postal Service to initiate the process of proposing a rule.” It then waves the order away as imposing “no legal requirements on the States (or, for that matter, on anyone outside the Executive Branch).” That is a generous reading, and a dangerous one. The Postal Service is not a therapist working out its feelings in private. It is the agency that delivers — or refuses to deliver — every mailed ballot in the country. An order to begin rulemaking that will determine which ballots the agency will accept is, in any honest reading, an order with legal consequences for states and for voters. Process is what gets you to the result.
The Court insists it is leaving the merits for another day: “On that score, time will tell.” Time is the one thing voters and states do not have. The USPS published its final rule on Friday, effective immediately — though it is currently blocked by a second injunction from the same judge in a separate case, which the Administration has asked the Justices to dissolve as well. Whatever window the majority imagined it was preserving is shrinking by the hour, and the country is sliding toward November with an open White House attempt to put election administration under executive control.
Three Justices saw the order for what it was. Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote in a four-page dissent that the majority’s decision “merely postpones” the reckoning. They are right, and the postponement only helps a President who has every reason to run the clock until ballots are already in transit. Justice Ketanji Brown Jackson went further. In a separate twenty-three-page dissent she did what the unsigned opinion would not: she wrote the case. “The President does not have any legal authority to require that elections be conducted in accordance with his preferences,” Jackson wrote, “or to withhold delivery of mail-in ballots that are not formatted consistent with the President’s wishes.” That sentence is the case. The majority should have written it.
The Administration’s defenders point to the final rule and insist the panic is overblown. The voter lists will be “based entirely” on data supplied by the states, the USPS says. The post office “will not change the content” and “will not cross-check” against other sources. The files will be “a manifest” to help election officials and law enforcement “understand who may have been mailed a ballot.” That is the language of administrative restraint, not administrative restraint itself. A federal manifest of every mail ballot sent in every federal election, built to a President’s specification and housed inside a federal agency that has spent the year preparing for the President’s preferences, is not modest. It is a new federal instrument sitting on top of state-run elections. A manifest of every outbound ballot, in the hands of a President who has spent months attacking mail voting, is not benign bookkeeping. It is the infrastructure of selective enforcement. “Based entirely on data from the states” is a meaningless reassurance when the President has already declared that ballots not formatted to his liking will not be transmitted.
Read the rule’s own distinctions twice. It applies only to outbound ballots — the unvoted envelopes going to voters — not to voted ballots coming back. The federal government reserves for itself a say over which ballots get mailed out, while insisting it has nothing to say about which ballots get counted. The USPS also resists the word “nonmailable,” preferring “special handling,” and helpfully compares ballots to cremated human and animal remains that must be transported in specific USPS-provided boxes. The analogy is meant to be reassuring. It is not. A ballot is not a corpse. It is a citizen’s vote, and treating it as suspect freight is precisely the framing this Administration wants.
The opinion is ten pages. Justice Sotomayor’s dissent is four. Justice Jackson’s is twenty-three. The Administration first asked the Justices for help on July 27. The bulk of the legal work in this Court has been the work of explaining why the order is dangerous. The unsigned majority opinion is a procedural dodge dressed up as deference. The Justices had time. They used it to dodge.
The lower courts now have to do the work the Supreme Court would not. The Constitution does not give the President any role in running federal elections. When this case comes back to the Justices, they should not look away a second time, and they should remember what Justice Jackson wrote.