The Hard Part of the Mail-In Ballots Decision Trades Short-Term Chaos for a Long-Term Setback for Trump

As I noted in my first post on today’s decision in Alabama v. California — which gives the background of what follows here — the Supreme Court was on fairly solid ground in throwing out of court the challenges to Section 2 of Donald Trump’s mail-in ballot executive order. But the challenge to Section 3(b) raises more serious issues. The key element of that section directs the Postal Service to refuse to deliver ballots for federal elections mailed by people not verified by DHS as citizens. In order to ensure that everyone eligible under state law to vote can do so, once the USPS has issued regulations (which it has not, due in part to injunctions, and might not in time for the election), states will need to print envelopes for those ballots. Those envelopes need to comply with USPS rules. And the states can’t comply because the rules don’t exist yet.

This is what I was talking about in terms of the Court preferring to resolve legal questions as opposed to cleaning up messes. For now, the mess remains. But sometimes, prudent judgments keep courts from playing Pontius Pilate with cases that arrive on their doorsteps. In order to properly assess what the Court did, it’s useful to review some longstanding gripes with the state of election law.

There’s a classic scene in the Marx Brothers film Duck Soup in which Groucho’s character, Rufus T. Firefly, manipulates the rules of timing to prevent ever discussing an issue:

Rufus T. Firefly: And now, members of the cabinet…
[pounds gavel]
Rufus T. Firefly: we’ll take up old business.
Cabinet Member: I wish to discuss the tariff.
Rufus T. Firefly: Sit down, that’s new business. No old business? Very well…
[pounds gavel]
Rufus T. Firefly: we’ll take up new business.
Cabinet Member: Now, about that tariff…
Rufus T. Firefly: Too late, that’s old business already. Sit down.

I’ve been critical for some time now — as have been some of the Court’s conservatives — of the Court ducking election-law disputes by constantly declaring them either premature to bring in advance, or too late or moot to bring later. That hesitancy has gored the ox of both sides at different times. There’s an air of that here, because the states are concerned that by the time they can bring a case against the USPS rules, it will be too late to print envelopes that comply with them.

On the other hand, Justice Ketanji Brown Jackson’s lone dissent (if you’re following the patterns, she yet again wrote something so incendiary that Sotomayor and Kagan wouldn’t join it, and neither did she join their dissent), invokes the specter of the Purcell v. Gonzalez (2006) principle, by which the Court won’t step in to enjoin election rules close to the voting. Because a late challenge would be too late under Purcell, she argues, it should be decided now. But she misses a crucial point. While Purcell is a rule of judicial prudence and restraint, it’s also a rule of federalism, because it traditionally appears when someone is suing (as in Purcell) to claim that a state voting rule conflicts with federal law or the Constitution. But would Purcell bar a suit against the Postal Service, close to the election, for trying to displace existing state election law with a new federal rule? That seems far from clear.

The Court ruled that all of this is still speculative so long as we have no USPS rule, and that states suffer no injury simply from assuming that they will have to adjust their behavior for what the Postal Service may do. “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,” the Court wrote: “On that score, time will tell.” As with its disposition of Section 2, this is a short-term on-paper win for Trump, but may make it even harder for him to actually do anything that binds the states in the fall, when they can reasonably argue that a late-arriving USPS dictate cannot possibly be complied with.

Of course, one lesson of this is that it diminishes the power of federal law for Trump to propound orders beyond his powers, then defend them in court on the narrowest procedural argument about their practical impotence. But that’s another mess that it isn’t the Court’s job to clean up.