I just saw the news that SCOTUS has denied Trump’s appeal of the nationwide injunction that prevents the U.S. Postal Service from implementing his Executive Order. The idea was to have them create a bunch of standards and rules AND a database with voter’s identities and use, or rather abuse the new process to throw out ballots Trump thinks will be against him/the GOP. I’ll admit given how much the six Federalist Society GROOMED Justices usually give Trump what he wants enough of them said no, the lower court order would stand and the injunction would stay in place. It should have been a unanimous decision but wasn’t. More importantly Kavanaugh and Alito wrote opinions (Thomas joined in Alito’s dissent) stating that the EO would likely stand on the legal ‘merits.’ Huh?
There’s a short article from Politico that only takes a minute to read as it outlines the bare bones of what happened. For now it’s clear that Trump is out of time and whatever he might get out of the courts and SCOTUS in the future the new Trump friendly rules won’t be used in this years midterms. That’s a relief but this is after all Trump we are talking about and he’ll probably try again. Before November. And lose again. What matters is that two Justices, the aforementioned Kavanaugh and Alito/Thomas pretty much told him to keep at it. Could it be they fear that the 2028 election will give Democrats the trifecta (the WH, the Senate and the House) the GOP currently holds? If that happens attempts to increase the number of Justices will ramp up, although unless the filibuster is killed legislation will never reach a Democratic President’s desk. That’s another and a longer discussion.
For the moment SCOTUS has slammed the door on THIS year:
The Supreme Court has rejected the Trump administration’s attempt to force states to take part in a new system to control the delivery of mail-in ballots in the looming midterm elections.
In a ruling Monday, the justices left in place a lower-court ruling that blocked the Postal Service from implementing the new requirements in the coming weeks due to the potential that millions of voters could be disenfranchised by not having their ballots delivered.
Included in the blocked out text is a copy of SCOTUS’ ruling but it might be difficult to pick out so here is a direct link. If you’re okay with reading legalese I urge you to read the entire thing including and especially Alito’s lengthy dissent. But let’s start with the good news from today’s opinion:
The application for stay presented to JUSTICE J ACKSONand by her referred to the Court is denied. The Governmentis unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction. And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.
Short and to the point. Kavanaugh wrote a ‘concurring’ opinion which to me is as much a dissent as it is agreeing with the majority. The majority opinions states the government is unlike to succeed on the merits of it’s challenge. Yet Kavanaugh’s opinion is a case of talking out of both sides of his butt. He writes:
In my view, based on the briefing the Court has received at this interim stage, there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority. See 39 U. S. C. §401(2). But applying the rule in the 2026 elections would be arbitrary and capricious in violation of the Administrative Procedure Act because state and local election officials do not have sufficient time to reasonably implement the rule before the elections. See 39U. S. C. §3001(m); 5 U. S. C. §706(2)(A). For that reason, I concur in the denial of the application for a stay.
You see what he did there? Right off the bat he disagreed with the majority ruling Trump couldn’t win on the merits. His ‘concurrence’ is because it’s too late in the cycle to go implementing Trump’s EO. Still, it’s clear he told Trump (and others) keep at it because 2028 will be here before you know it.
As for Alito, he (and Thomas) went on a tear with a pages long dissent that also claims Trump’s case to lift the injunction would succeed on the merits:
The Court incorrectly denies the Government’s application for a stay of a universal injunction that bars implementation of a final rule concerning election ballot mail. Some of the plaintiffs lack standing, while the remainder are pursuing a claim that this Court has recently called a “ ‘Hail Mary pass’ ” that “ ‘rarely succeeds.’ ” NRC v. Texas, 605U. S. 665, 681–682 (2025). The Government has made the showings necessary for a stay so I respectfully dissent.
I DIS-respectfully say Alito’s comment ‘respectfully dissent’ is bullshit. He was probably howling at the moon, with Thomas howling backup. The dissent is over eight pages long and even if you don’t like reading legal stuff you should give it a try. The dissent covers some of the litigation history, and goes into some pretty creative territory attempting to justify how an Executive Order that violates both two parts of the Constitution and federal statues would ‘succeed on the merits. The Election Clause of the Constitution (Article I, Section 4, Clause 1) states “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Take note of the words “the manner.” Cornell’s Legal Information Institute explains:
Known as the Elections Clause, Article I, Section 4, Clause 1 provides for Congress and state legislatures to regulate the “Times, Places and Manner of holding elections for Senators and Representatives.” 1 Under the Elections Clause, each state establishes how it will hold congressional elections, subject to Congress adopting or altering the state requirements (except as to the place of choosing Senators).2 The Elections Clause’s “Times, Places and Manner” encompasses “a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.”
In plain language each state can determine whether people can vote absentee/by mail and the procedures for doing so. Most state allow it and some mail out ballots to every voter who can then fill it out and mail it in, or vote in person. The point is the Constitution empowers the states to determine ‘the manner’ in which they will hold elections.
As for the Post Office Article 1 Section 8 of the Constitution gives Congress the authority “to establish Post Offices and post Roads,” including the power to control land for the “post roads” to carry the mail, and the buildings needed to maintain a mail delivery system.” The clause is rooted in the Articles of Confederation but history teaches us Congress wasted no time in establishing a postal system with the Postal Act of 1792. What’s important is that the Constitution grants Congress the power to make the laws regarding the operations of the Post Office – NOT the President.
Basically, if Trump wants Congress to be able to create rules regarding state’s mail-in ballots he needs legislation from Congress spelling out what he wants. Even if that were to happen however there’s the Elections Clause that gives STATES the power to decide how to run their elections. For all his bluster and bullshit Alito’s dissent which unlike Kavanaugh’s digs into the weeds doesn’t offer a credible legal and Constitutional means for resolving this.
I must shamefully admit not having read Trump’s much ballyhooed SAVE Act but I’m pretty sure it contains provisions that would do at least some of what Trump tried to do with his EO. Trump hates, just hates mail-in voting unless of course HE wants to utilize it which he has a history of doing. I’m sure he’s okay with certain other people being able to take advantage of mail-in voting’s convenience. But not you or me!
In the end we have one of those good news/bad news missives from SCOTUS. They shot Trump down on this issue this year for this election. However they also invited future attempts and Alito (and Thomas) went to some lengths to provide a blueprint on what future attempts to limit mail-in voting might pass muster down the road.
