This matter reached the justices when the Trump administration asked for a temporary pause of a lower court ruling blocking the administration from taking further action to implement the executive order — specifically, the portion of the order requiring the U.S. Postal Service to come up with a system for determining which Americans are eligible to receive absentee ballots to vote by mail.
The unsigned order, issued on the Court’s shadow docket, essentially said the lower court acted too soon in blocking the administration from implementing this executive order, because no one had yet been harmed. The court majority explicitly stated that it was not ruling on the legality of the plan itself.
My view, expressed in a brief filed on behalf of 56 former federal judges, matched the view of three dissenting justices; they thought there was ample evidence to justify blocking the order, as the lower court had done. States are well into preparations for sending absentee ballots, and any uncertainty injected into the process at this juncture is likely to be harmful to our elections and the freedom to vote.
Having said that, the question of whether the executive order is lawful and can ultimately be carried out by the government was not resolved. The rationale that inspired Campaign Legal Center and others to sue the Trump administration in April over this executive order remains intact: There is no basis in law or the Constitution for the president, the Postal Service, or other executive branch agencies to unilaterally change election rules. To start with, our government’s founding document specifically gives the states and Congress that authority. Further, the Postal Service statutes themselves do not allow the agency to do what it is proposing.
What is of utmost importance right now is preventing USPS from implementing its plan to carry out the mandates of the executive order. Shortly after the Supreme Court’s ruling, the agency announced that its “final rule” for complying with the order was in effect. This announcement prompted plaintiffs to urge a federal judge in Massachusetts to block the order, which she did.
Representing a range of clients with a vested interest in protecting states’ authority over our elections, Campaign Legal Center and our partner Democracy Defenders Fund (DDF) are pursuing the same strategy by filing a supplemental complaint to a lawsuit filed in April, urging another federal court to protect voters by declaring the USPS plan unlawful and unconstitutional now that the agency is trying to move forward. With important matters such as these, it is not surprising, and indeed advisable to have more than one lawsuit challenging the underlying policy.
It’s worth dwelling for just a minute on what the Trump administration is compelling the Postal Service to do, a subject detailed in CLC’s lawsuit. Under the rule, the agency would cease to be a common carrier of mail as Congress intended and would instead serve as a gatekeeper for mail voting in federal elections.
The rule essentially puts USPS in charge of deciding which voters will receive absentee ballots, using a completely impractical new system that would need to be set up from scratch with Election Day just a few months away. No state or act of Congress has authorized this procedure, which, because of its design, would likely produce enormous delays and egregious errors, with perfectly legal ballots left on the proverbial mailroom floor.
Consider Maricopa County, Arizona, home to the city of Phoenix, where the initial round of ballots sent to voters for the general election is expected to be more than 2.6 million. The government has claimed it will take “generally less than a minute” to scan each mail-in ballot to verify its legitimacy. At 30 seconds per mail piece, that means 2.5 years to scan Maricopa’s ballots alone!
Finally, it must be said that this executive order and other election interference tactics employed by the administration are being carried out under the flimsiest of justifications as a thinly veiled effort to establish a premise for questioning future election results. Our elections are secure and accurate, and state election officials are perfectly capable of dealing with any problems that may arise. Some of the strongest evidence in support of our current election system is state audits conducted across the country that have repeatedly found minuscule numbers of non-legitimate votes.
