We’re just 69 days away from Election Day, but before you comment “nice,” let’s consider yesterday’s Supreme Court order that allows Donald Trump’s administration to continue moving toward a plan to restrict voting by mail — in blue states, of course. In the unsigned "emergency” order, the Court’s six Republican justices said Trump could go ahead and begin implementing a March executive order that directed the US Postal Service to only mail ballots to voters on federally approved lists of citizens. You know, lists that don’t exist yet. It also directed Homeland Security to make a list of citizens so it could punish noncitizen voting, which is extremely rare.
The Court’s order doesn’t address whether Trump can legally do any of that, and the majority cautioned that its order on the procedural question “does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell.”
The order lets the administration go ahead with planning its election fuckery while a lawsuit brought by 23 blue states (and DC) goes forward in a federal court in Massachusetts. Most legal experts we trust point out that Trump shouldn’t have even a ghost of a chance of winning on the merits, because the Constitution plainly leaves election administration up to the states, and includes no role for the executive branch to interfere.
Most legal experts we trust seem to have forgotten the Constitution also once purported to hold all Americans equal before the law, even the president.
And of course Congress — which does have some authority over the conduct of federal elections — has never given the Postal Service any authority over whose ballots can be delivered, either. USPS’s role in elections is to deliver the goddamn mail, nothing more.
On its face, the case against the executive order should be a slam-dunk, but as it has done in so many cases under Trump II, the Court is playing its little game of allowing a plainly unconstitutional executive action to go forward while the case is litigated, with the pretense that all will be well when it’s finally decided.
Fortunately for the midterm elections, there’s a backstop against this order, because in a separate lawsuit against the executive order brought by the League of Women Voters and other voting-rights group, the federal judge in both cases, Judge Indira Talwani, issued a nationwide injunction against the Postal Service carrying out Trump’s restrictions.
Nobody knows how or when any of this will be settled. At the moment, the status quo holds: No changes to election rules have been made. But with the Supreme Court’s latest injection of uncertainty into what will happen before Election Day, that’s not a hell of a lot of comfort. Donald Trump has made clear his desire to broadly disqualify voters who might choose Democrats, regardless of what the Constitution or the courts say. And the Supreme Court is cheerfully saying it isn’t worried if the elections are chaotic.
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In a bizarre bit of logic, the Court decided that because the administration hadn’t yet issued rules to put Trump’s voting restrictions in place when the 23 states filed their lawsuit, the states hadn’t actually suffered any “harm,” and therefore lacked standing. They sued too soon, basically.
“The executive order makes no demand of the states” yet, so Judge Talwani therefore shouldn’t have placed the EO on hold, since at that point she could only “speculate” about the costs and administrative burdens of complying with Postal Service rules that hadn’t been put in place.
In a useful bit of timing, USPS on Friday actually posted its final rules that would implement the order, and as Democracy Docket explains, there’s nothing speculative or hypothetical about the burden the rules would impose on states.
The order directs states to design new envelopes for mail ballots with mandatory barcodes tying the ballot to the voter, submit those envelopes to USPS for approval, and then use them ahead of November’s elections. The printing costs alone will likely run in the millions. Many states start sending mail ballots 45 days ahead of Election Day, in mid-September, which is a few weeks away.
What’s more, as CNN explains, states would have to “upload the names and addresses of every mail-ballot recipient to a Postal Service portal before the ballots are sent to voters.” Any ballots not loaded to the portal would be rejected by USPS and sent back to election officials, and if states refuse to comply, USPS simply wouldn’t deliver ballots for federal elections. That’s a burden, all right, especially on the eight states (and DC) that conduct almost all elections by mail. One, Utah, consistently votes Republican, and another, Nevada, trends blue but elected Republican Joe Lombardo governor last cycle.
Why yes, it has mostly been blue states that have so far refused to comply with a separate Justice Department demand that they turn over their full voter rolls, including sensitive identifying information, so DOJ can try to purge voters it thinks might not be citizens (based on bogus data). But several Republican-led states, like Vermont, Utah, Nevada, and Georgia, are also fighting that fuckery too.
Norm Eisen, the lawyer representing the blue states, wrote on Bluesky that the USPS rules wiped away the Court’s concerns that the injunction was premature, saying “Now we HAVE a final rule & we will litigate it. I'm as confident in our arguments here as in any of our cases!”
In one potentially hopeful detail, the USPS rule says the agency will “not take actions to implement the rule specifically for the 2026 election” unless the Supreme Court rules for the administration. But hey, maybe USPS will decide it doesn’t have to keep that promise.
In another of her series of “Hey, we all see what these fuckers are doing, right?” dissents (page 15 of the order PDF) Justice Ketanji Brown Jackson suggested that even as a narrow procedural ruling, the majority’s order ignores normal Court precedents, saying the ruling “violates well-established precedents concerning this Court’s equitable discretion and needlessly injects chaos and uncertainty into the upcoming midterm elections.”
Jackson also decried “the Court’s lack of situational awareness” about what the administration is up to (again): “Taking its eye off the ball, the majority misses the Government’s actual objective: to secure our imprimatur for its effort to foment chaos ahead of the November elections.”
The majority decision, Jackson wrote,
“needlessly injects chaos and uncertainty into the upcoming midterm elections. It also lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges.”
She also warned that the supposedly narrow ruling leaves open the possibility that “the Government (which controls the timing of proposed and final rules) can easily game the system.”
The Court’s order also insisted, without explanation, that the executive branch would suffer “irreparable harm” if it couldn’t get to work rigging the midterm vote. Jackson wasn’t having any of that, either, pointing out that “The President is only conceivably harmed by an injunction barring executive action if that court order is preventing him from doing something the law permits him to do.”
As she noted, the government didn’t even bother presenting an argument that the president has any authority to order changes to how federal elections are conducted. Maybe the administration will get around to that as the case moves forward.
So to get back to our headline question: How worried should you be about this shadow docket ruling? In a normal version of the USA, which we have not got, there’d be no question at all that Trump’s scheme is unconstitutional. Presidents have fuck-all to do with how elections work, and they can’t arbitrarily change the rules, especially not this close to national elections.
We do not live in the normal USA anymore, though. So you should be worried some, because even if the Massachusetts federal court ultimately quashes Trump’s executive order and the Supremes agree, they’ve opened the door to all sorts of fuckery in the meantime. As Wonkette alum Lisa Needham says at Public Notice, “the Court’s right-wingers continue to swallow the Trump administration’s laughable lies about what they are doing, lies that contradict both their own public statements and the dictates of logic.”
There’s still Judge Talwani’s injunction in the League of Women Voters case, blocking USPS from implementing Trump’s desired limits on who can vote by mail. On top of that, there’s the so-called “Purcell principle,” which says that courts can’t make changes to election rules too close to Election Day. Again, some of the radicals on the current court “are ruthlessly inconsistent in when they do and don’t apply Purcell—leading to the worry that an injunction [Wonkette’s italics] against the USPS Final Rule might be deemed ‘too close to the election,’ and stayed under Purcell,” as if the USPS rule itself weren’t a hugely disruptive departure from existing election rules.
Our advice: Don’t panic, but don’t be complacent. Be ready to take to the streets and to deluge your electeds with outrage if the Court lets Trump invalidate mail-in ballots (in blue states), because massive public disapproval has been one of the only things to constrain these lawless fascists.
OPEN THREAD.
[AP / NYT (gift link) / Democracy Docket / Public Notice / Law Dork / Order in Trump v. California]
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I've removed the Dolly Parton obituary. I thought it was really smart and well-educated on her career and genre, and I thought it appropriately placed her at the very top of American life culturally, personally, artistically. It did though leave out some of her most important attributes, and made her sound ungenerous, which is dumb.
It was bad editing on my part not to send it back to address that lapse; I was too hurried trying to post what I found to be a really deep exploration of her career. I thought it was excellent in that respect, and I'm really truly sorry it pissed everyone off.
It was my fault.
I have found the beast of the Forest Hill Park fishing pond. A big snapping turtle,
(although someone said it could be a soft shell turtle) whichever it is still a beast. I saw this thing in the water, couldn't tell what it was then the head popped up.
https://substack.com/@ziggywiggy/note/c-322439173?utm_source=notes-share-action&r=2knfuc