The Supreme Court’s Mail Voting Ruling Is Manufactured Chaos

Here’s what you should know.

Michael Waldman, Brennan Center for Justice

A year ago we warned that Donald Trump had a concerted strategy to undermine the midterm elections.

Here’s news you can use: That effort is failing so far. For every move, there’s a countermove from voting rights groups, local and state governments, and more. In November, we should be able to have elections that are free, fair, and secure. But it will take a lot of work between now and then.

We saw that for sure when the Supreme Court made headlines and sowed confusion, but it did not change much. Here’s what you should know.

Earlier this year, Trump signed an executive order to upend mail voting. That is the way 1 in 3 Americans vote. Trump purported to order the US Postal Service to refuse to deliver lawfully cast ballots unless the voter is on a list—which doesn’t exist yet—created by each state and sent to the post office for checking against mail ballots. It’s absurd. And, no surprise, it’s illegal.

Trump’s executive order is not in effect. Mail voting continues as before. There have been no changes to the Postal Service practices. BUT that is subject to change, possibly quick and abrupt.

Earlier this summer, in a lawsuit brought by 23 states, a federal court blocked the executive order in part of the country. The judge also blocked the order nationwide in a lawsuit the Brennan Center and others brought on behalf of the League of Women Voters of Massachusetts.

On August 24, the US Supreme Court jumped into the states’ case. It issued an unsigned order holding that the states did not yet have legal standing to sue. In particular, it concluded the states had not suffered an injury, because the Postal Service had not implemented the policy. In other words, the trial court had ruled too early.

This made big news, understandably, but those headlines confused matters a bit.

This was a procedural vote that let the Trump administration continue working on its plan to have the Postal Service decide who receives a ballot.

As the court itself explained, “The Court’s disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful.”

And in fact, late last Friday, under pressure from the administration, the Postal Service published a “Final Rule” to implement Trump’s scheme. The agency explained that it had the power to set rules for mail ballot delivery because ballots are like “animal remains” or “replica explosives” and deserve special treatment.

Both the states’ case and the case brought by the Brennan Center and other voting rights groups remain ongoing. The Supreme Court’s Monday ruling is not the final word. Our attorneys are assessing next steps, and things will no doubt move quickly in this complex legal back-and-forth.

But a few things are as true today as they were before the court’s order.

This executive order is still illegal and unconstitutional. The Constitution’s Elections Clause is clear, as courts have ruled over and over: States run elections. Congress has a legitimate role in passing national legislation and can override states. You know who has no role in elections, under the Constitution? The president.

And the Supreme Court? This is the “shadow docket” at work. Rather than letting the legal process unfold, the justices jumped into the litigation to help Trump. Justices like Samuel Alito bristle at the ominous phrase “shadow docket” and complain it should be called an “emergency” order instead. Here, the only “emergency” would be that Trump could not move forward with his push to restrict voting, just weeks before an election.

It’s hard to avoid noticing that, while the order is unsigned, it was backed by the Republican-appointed justices. Democratic-appointed Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson wrote dissents. Trump has repeatedly said, as he wrote in June about the SAVE Act, that without voting restrictions, “The Republican Party will never win another Election.” The Supreme Court, already at record lows in public trust, will further bleed credibility if it is seen as a partisan electoral actor.

And as for voters—what should we know?

This legal fracas is happening so close to the election that, however it turns out, it is highly unlikely that changes will affect voting this year. Federal law requires that the first mail ballots be sent to military voters starting September 4. We cannot let chaos engulf our elections.

All of which means that, in one sense, this is a lot of noise and manufactured chaos. Trump’s executive order is not in effect. Mail voting continues as before. There have been no changes to the Postal Service practices.

You know who knows that? Someone who voted by mail this month from his house in Mar-a-Lago: Donald Trump.

His campaign to undermine the midterm elections is losing. The only way it wins is if people stay home.

© 2023 Brennan Center for Justice

Michael Waldman is President of the Brennan Center for Justice at NYU School of Law, a nonpartisan law and policy institute that focuses on improving the systems of democracy and justice.