Sixty days before the Nov. 3 midterm, mail ballots are about to land in voters’ mailboxes — and President Trump is fighting to decide which of them actually arrive. This week the Supreme Court lifted a hold on Trump’s March executive order directing the U.S. Postal Service to draw up rules standardizing ballot envelopes and to compile a “Mail-In and Absentee Participation List” for every state. The order instructs that “the USPS shall not transmit mail-in or absentee ballots from any individual unless those individuals have been enrolled.” A coalition of states sued and a federal judge paused the directive. On Monday, the Justices said the pause was premature.
Premature. The unsigned majority opinion in Trump v. California holds that the order “orders the Postal Service to initiate the process of proposing a rule” — and that this directive “imposes no legal requirements on the States (or, for that matter, on anyone outside the Executive Branch).” So judges should stay out of the executive branch’s “internal monologue.” That framing is extraordinary. An executive order that claims the authority to decide which Americans’ ballots the postal service will carry is not monologue. It is a blueprint for selectively delivering the franchise.
The majority insists it “takes no position on the lawfulness of whatever concrete changes might result from Mr. Trump’s order.” On that score, “time will tell.” Time, however, is precisely what voters do not have. The USPS on Friday published its final rule — effective immediately — even though a second injunction, from the same judge in a separate case, currently blocks it. The Administration is asking the Justices to dissolve that injunction too. Whatever the Court says next will arrive in the shadow of ballots already en route.
It is not hard to imagine this plan taking effect before November. It is terrifying to imagine it. The Administration first petitioned the Court on July 27. The main opinion runs ten pages. Justice Sonia Sotomayor’s four-page dissent, joined by Justice Elena Kagan, calls the ruling one that “merely postpones” the reckoning. Justice Ketanji Brown Jackson’s separate 23-page dissent does not postpone anything. It dismantles the order on the merits. “The President does not have any legal authority to require that elections be conducted in accordance with his preferences,” she writes, “or to withhold delivery of mail-in ballots that are not formatted consistent with the President’s wishes.” That sentence should not have required 23 pages. It should have required an immediate stay.
The defenders of the order insist the USPS rule is modest. The voter lists will be “based entirely” on data supplied by the states. The post office will not “change the content” or cross-check against other sources. The files will be “a manifest” meant to “assist election officials and law enforcement to understand who may have been mailed a ballot.” Read those words again. A federal manifest of who has and has not been mailed a ballot, compiled under executive-branch direction, drawn from state data, exempt from cross-checking, built to feed law-enforcement scrutiny. This is not modest. This is the architecture of intimidation dressed in postal-form language.
The rule purports to govern only outbound ballots, not voted ones being returned. The USPS rejects the idea that any ballots are deemed “nonmailable,” saying they will simply require “special handling, akin to other categories.” The example the Postal Service itself offers: “cremated human and animal remains must be transported through specific types of USPS-provided boxes.” Cremated remains. That is the analogy the federal government has chosen for the carriers of American democracy. Read it twice.
The Justices have bought themselves time. They will get more chances to get this right. The question is not whether courts will now “chew over” the rule. The question is whether they will act before voters discover — at the kitchen table, holding an envelope the post office never delivered — what “enrollment” means in the hands of a President who has spent years insisting that mail-in voting is a fraud he intends to defeat. Justice Jackson’s dissent is not “Kafkaesque.” Justice Sotomayor’s warning is not legal theater. They are the only voices in this opinion that took the threat seriously.
We do not trust that the Justices will protect the authority of the states to run their elections. We demand that they protect the voters.