Justice Brett Kavanaugh penned a one-paragraph concurrence in which he agreed with the decision to deny the government’s request. He suggested that, in his view, the Postal Service might have the power to issue the rule. But even if it does, he continued, election officials “do not have sufficient time to reasonably implement the rule before” the November elections.
Justice Samuel Alito dissented from the court’s ruling, in an opinion joined by Justice Clarence Thomas. He argued that some of the challengers in the dispute do not have a legal right to sue, known as standing, “while the remainder are pursuing a claim that this Court has recently called a ‘Hail Mary pass’ that ‘rarely succeeds.’”
The court’s order comes less than two months before the midterm elections in November. At least two states – North Carolina and Alabama – have already begun to send out ballots by mail.
As part of his administration’s broader effort to combat alleged voter fraud, President Donald Trump in March signed an executive order that directed federal agencies to take a series of steps on mail-in voting. For example, it required the Department of Homeland Security to send each state a list of the adult U.S. citizens in that state at least 60 days before a federal election and instructed the U.S. attorney general to investigate and prosecute state officials who allow people who are not eligible to vote to cast ballots.
A group of 23 states, led by California, and the District of Columbia went to federal court in Massachusetts to challenge the government’s efforts to implement the executive order. They argued that the order clashes with provisions in the Constitution that give states the power to determine voter eligibility and to set the “Times, Places, and Manner” of holding congressional elections.
U.S. District Judge Indira Talwani agreed. In an order on June 25, she temporarily prohibited the federal government from implementing parts of Trump’s executive order on or before the upcoming November elections in California, the states joining the lawsuit, or D.C.
On Aug. 24, the Supreme Court put Talwani’s order on hold, allowing the Trump administration to begin implementing the executive order. The majority explained that the states’ challenge had come too soon because the order had not yet been carried out – and, therefore, the states had not suffered the kind of injury that would allow their lawsuit to go forward.
Three days later, Talwani issued a new order that prohibited the Trump administration, for 14 days, from requiring states to comply with several provisions of a new rule issued by the U.S. Postal Service to implement Trump’s executive order – for example, imposing requirements for the design of the envelopes used to mail ballots and for the submission of voter data into a USPS portal.
The Trump administration returned to the Supreme Court on Sept. 3, asking the justices to pause Talwani’s second order. U.S. Solicitor General D. John Sauer withdrew that request three days later, after Talwani issued a preliminary injunction, which replaced her Aug. 27 temporary restraining order and barred the Trump administration from requiring states to comply with provisions of the USPS rule indefinitely while the litigation continues.
Sauer instead filed a new request with the Supreme Court, seeking to block Talwani’s preliminary injunction. He argued that Talwani’s “continuing prejudgment of the rule is baseless,” and her rationale is “simplistic,” and he rejected any suggestion “that the Postal Service is trying to federalize the rules for mail-in voting.” Instead, he wrote, “the Postal Service’s final rule imposes only modest envelope-design and addressee-information requirements for federal-election ballots sent via U.S. Mail.” Without a stay of Talwani’s order, Sauer continued, states will be able to mail out ballots that do not comply with the new rule.
California and the other states countered that “USPS’ unprecedented experiment with our Nation’s most cherished franchise—the right to vote—is unlawful.” And they suggested that the effects of a stay could lead to “chaos,” with some states unable to comply with the rule by the November elections, “meaning that millions of voters would be unable to vote by mail and some would not be able to vote at all.” Moreover, they added, “even if state and local officials were somehow able to implement the new rule perfectly, there is a high risk of technical breakdown, ineptitude, and delay on the part of USPS.”
A “friend of the court” brief filed by state and local election officials – including Republican secretaries of state from Kentucky, North and South Dakota, Georgia, New Hampshire, and Kansas – echoed this caution. They told the court that “[a]ttempting to implement the Rule now will almost certainly lead to mistakes, delays, and confusion for both voters and election officials.”
A brief filed on Wednesday by the League of Women Voters and other civic groups, which had filed their own challenge to one part of the rule, also urged the court to leave Talwani’s preliminary injunction in place. The groups told the justices that “Congress charged the Postal Service with delivering the mail nationwide, subject to a scheme of narrow exceptions for specified categories of material that Congress itself—not USPS—has deemed ‘nonmailable’ and subject to rules of general application such as sufficient postage. Mail ballots fall outside those congressionally prescribed exceptions.”
In an order issued on Monday night, the court indicated that the “Government is unlikely to succeed on the merits of its challenge to” Talwani’s order – a key factor in determining whether to grant the relief that the government was seeking. “And the equitable factors applicable for obtaining emergency relief from this Court” – such as whether the government will be permanently harmed if Talwani’s order is not put on hold – “do not favor a stay,” the court added.
In dissent, Alito contended that the Trump administration “has made the showings necessary for a stay.” First, he reasoned, the civic groups challenging the rule had relied on “cryptic filings” to assert their right to sue. But they must “make specific allegations establishing that at least one identified member had suffered or would suffer harm,” Alito stated, and provide that member’s name.
As for the states, Alito continued, the dispute boils down to “whether the Postal Service has statutory authority to promulgate the rule.” In this case, Alito asserted, the challengers must meet a high bar, but they cannot do so, because the USPS “has broad authority to regulate the mail.”
Alito agreed with the Trump administration that it would suffer permanent harm if Talwani’s order is not put on hold while the litigation continues, because it would not be able to implement the rule in time for the November elections even if her injunction is ultimately reversed. “[T]he Government,” Alito emphasized, “has a strong interest in enforcing the rule.”
By contrast, although Alito made clear that he took “th[e] problem” of “the practical effects of implementing the rule close to the midterm elections” “very seriously,” he concluded that “it is not enough to convince me to deny the application.” Some states, he noted, support the rule and say that they can comply with it during the November elections. Moreover, he suggested, the challengers and the courts “bear a substantial share of the blame” for the delay in the implementation of the rule.
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