President Trump’s March executive order seizes control of mail ballots from the states. The Supreme Court just let him keep it.
The Elections Clause of the Constitution — Article I, Section 4, Clause 1 — assigns the Times, Places, and Manner of holding federal elections to the states, subject to Congress’s override. State constitutions in all fifty states assign ballot administration to state and local officials. The President appears nowhere in that arrangement. He has no enumerated authority over the franchise. Trump’s March order nevertheless directs the United States Postal Service to maintain a “Mail-In and Absentee Participation List” — a federal manifest of voters to whom USPS may transmit a ballot. “The USPS shall not transmit mail-in or absentee ballots from any individual,” the order commands, “unless those individuals have been enrolled.” Enrolled on a list the executive branch controls, populated with state data the executive branch is now empowered to scrutinize, format, and gate.
The states that run their own elections sued. A federal district judge enjoined the order. The Administration asked the Justices on July 27 to lift the stay. On Monday, in Trump v. California, an unsigned majority obliged. The unsigned opinion is ten pages. A four-page dissent by Justice Sonia Sotomayor, joined by Justice Elena Kagan, says the decision “merely postpones” the case. A twenty-three-page separate dissent by Justice Ketanji Brown Jackson dives into the merits. Read her pages. “The President does not have any legal authority,” she writes, “to require that elections be conducted in accordance with his preferences, or to withhold delivery of mail-in ballots that are not formatted consistent with the President’s wishes.” That is the case. The President has no such authority. The Court had the votes to say so on Monday. It chose not to.
Read the unsigned opinion. The lower court’s intervention, the majority explains, was “premature.” The order, the majority continues, “orders the Postal Service to initiate the process of proposing a rule” and “imposes no legal requirements on the States (or, for that matter, on anyone outside the Executive Branch).” The job of judges, the Court suggests, is not to intervene in the executive branch’s internal monologue. This is the language of permission. An executive order whose entire purpose is to set the terms under which Americans can vote by mail does impose legal requirements — on USPS, on every state that maintains a voter roll, on every voter whose name might or might not appear on a federal manifest. Calling the order a process that “imposes no legal requirements” is exactly the sort of technical rescue that lets a constitutional injury run out the clock.
And the Court is candid about what it is doing. It “takes no position on the lawfulness of whatever concrete changes might result from Mr. Trump’s order,” the unsigned opinion says. “On that score, time will tell.” Time will tell. Time is telling. Time has been telling since March. What it has told us is that this administration intends to use every lever at its disposal, including the postal system that delivers ballots, to choose the electorate it prefers.
Mail ballots for the midterms are scheduled to start going out to voters as soon as next week, sixty days before the November 3 election. The USPS published its final rule on Friday, effective immediately. It is currently blocked only by a second injunction from the same federal judge who has seen through this scheme from the start. The Administration is asking the Justices to dissolve that injunction too. The case will be back. The only question is how many ballots will be in the mail, or will not be, before the Court finally says what it should have said in July.
Do not be reassured by the Postal Service’s protestations of modesty. The rule, the agency insists, is gentle. The voter lists will be “based entirely” on data from the states. USPS “will not change the content.” The files are merely “a manifest” to “assist election officials and law enforcement to understand who may have been mailed a ballot.” Apply that language to any other federal program and hear how it sounds. A federal manifest, drawn up by the executive branch, of who is permitted to receive a ballot — built on state data the executive branch is now empowered to scrutinize, format, and gate. That is not modesty. That is the skeleton of selective disenfranchisement, with the joints still showing.
The rule applies only to outbound ballots, USPS adds, not to voted ballots being returned. The ballot a voter never receives silences that voter as effectively as the ballot a voter mails back and watches vanish. If the federal government controls who gets a ballot in the first place, it controls who participates. The rest is bookkeeping.
Then comes the analogy. USPS, defending its proposed treatment of certain ballots as nonmailable and in need of “special handling,” offers this comparison: “For example, cremated human and animal remains must be transported through specific types of USPS-provided boxes.” Read that sentence twice. A federal agency is comparing the handling of American voters’ ballots to the handling of cremated remains, and asking the country to find the comparison comforting. It is not comforting. It is contemptuous. It tells you what the executive branch thinks of the franchise it has been handed.
The states that sued were right to sue. The federal judge who enjoined the order was right to enjoin it. Justices Sotomayor and Kagan were right to dissent. Justice Jackson was right to dissent at length, and to do what the majority refused to do — name the situation for what it is. The only parties in this story who have been wrong, at every stage, are the President who issued the order and the Justices who declined to stop it.
We are told to trust that the courts will protect the authority of the states to run their own elections. We have watched them decline to do so for the better part of a year. The protection of that authority is not something to be trusted into existence. It is something to be defended — by every state election official who refuses to surrender voter data into a federal manifest designed to ration the franchise, by every voter who returns a ballot in the next sixty days, and by every court that is asked, between now and November, to choose between procedure and democracy.
The clock is ticking. The Court had its chance. Now the rest of us have ours.