The Supreme Court is helping Donald Trump build a postal disenfranchisement machine.
The unsigned opinion in Trump v. California lifted a hold that had been entered by a federal judge, but the Justices were explicit that they were taking no position on the substance of what the President is trying to do. “On that score, time will tell.” That is the only honest answer a court can give when the executive branch claims authority it does not possess.
Mr. Trump’s March order told the USPS to draft rules standardizing ballot envelopes and to compile a “Mail-In and Absentee Participation List” for every state. The order was blunt: “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 obtained an injunction. That injunction was not premature. It was the federal judiciary doing exactly what it is supposed to do when a President tries to seize control of how Americans vote.
The Court agreed only that the directive orders the Postal Service to “initiate the process of proposing a rule” and “imposes no legal requirements on the States.” Fine. But the President’s lawyers are now asking the Justices to dissolve a second injunction — the one blocking the final rule that the USPS published on Friday, the rule that took effect immediately and would actually govern how ballots are handled. The Administration first asked the Court for help on July 27, more than three weeks ago. The majority opinion runs to 10 pages. Justice Ketanji Brown Jackson’s separate dissent runs to 23. Time will tell, but the next chapter of this case is already on the docket.
The dissenters were right. Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote that the majority’s decision “merely postpones” the reckoning. Justice Jackson, in her separate opinion, cut to the heart of the matter: “The President does not have any legal authority 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.” If the word she reportedly used elsewhere in the opinion was Kafkaesque, she earned it. A federal agency threatening to slow-walk or quarantine ballots that do not match the President’s preferred template is the kind of bureaucratic machinery that disenfranchises voters without ever needing to be called a ban. Twenty-three pages was not too long. It was the price of forcing a reluctant majority to confront the constitutional question it would rather defer.
Consider what the rule actually does. The Postal Service will compile a federal list of every voter who has been mailed a ballot. The Administration calls this a “manifest” — a benign shipping term — and says it is meant to “assist election officials and law enforcement to understand who may have been mailed a ballot.” The lists will be “based entirely” on data from the states, we are told, and the Postal Service “will not change the content” or cross-check it against other sources. Read those assurances again. A federal roster of who has received a ballot, maintained by an executive agency that answers to the President, is not a manifest. It is a voter file. The Tenth Amendment does not dissolve because a useful word was borrowed from logistics.
The rule also claims to apply only to outbound ballots, not to voted ballots being returned. The Administration compares the “special handling” to how USPS ships “cremated human and animal remains” in specific boxes. Remains are nonmailable. The Administration insists these ballots are not nonmailable — they are merely subject to “special handling.” But what does special handling mean when the agency has been ordered by the President to ensure ballots conform to his preferred format? It means delay. It means ballots returned to sender. It means voters who did everything right discovering, after the fact, that their vote will not count. The reassuring vocabulary of postal operations cannot paper over the constitutional injury.
Mail ballots for the November 3 midterm are scheduled to begin going out as soon as next week, 60 days before the election. There is no time for a leisurely judicial process to unravel this. The Supreme Court should take this case on the merits, and soon, and put an end to a Postal Service rule that has no business existing. The states must run their own elections. The President does not get a postal veto over how Americans cast their ballots.