I apologize in advance for writing a stream-of-consciousness post in a hurry (and for the errors that may result), but I want to provide a (short) bit of context for the headlines folks are seeing about the Supreme Court’s Monday afternoon ruling in Trump v. California, in which the Court (over dissents from the the three Democratic appointees) granted President Trump’s application to stay a district court injunction that was blocking two parts (sections 2 and 3) of his March executive order purporting to impose limits on mail-in voting. (For background and links to the relevant earlier developments, see this earlier bonus post, from which I’ve removed the paywall.)
To understand what’s going on, I’m going to try to tee this up as a progression of eight different points:
First, the executive order at issue has two different sets of provisions under challenge. Section 2 of the EO is directed toward DHS, and deals with the sharing of “citizenship lists” between the federal government and states. Section 3 (the really troubling part) is directed toward the U.S. Postal Service, and is the part that, if fully implemented, would allow the USPS to refuse to deliver mail-in ballots from individuals who don’t appear on state-provided lists (which necessarily assumes both that states will provide them and that the lists are accurate). So keep these two different sections in mind.
Second, there are two different cases at the forefront of challenges to the executive order, both pending before Judge Talwani in the District of Massachusetts. One is California v. Trump (a challenge by blue states); the other is League of Women Voters of Massachusetts v. Trump (a challenge by private organizations/voters). Critically, Judge Talwani has issued injunctions against the executive order in both cases. But Monday’s Supreme Court ruling applies only to one of them—the one brought by the states. For unimportant procedural reasons, the League of Women Voters case moved a bit slower, and Judge Talwani’s injunction in that case remains in effect. Even though the Solicitor General had asked the Supreme Court to reach out and pour cold water on that injunction, too, I don’t see anything in the 10-page majority opinion that speaks to the validity of that injunction one way or the other.
Third, late Friday night, the U.S. Postal Service (finally) released the “Final Rule” that was supposed to be published by the end of July that purports to implement Trump’s executive order. It’s that rule, not the executive order itself, that would be the basis for the USPS messing with mail-in ballots come October and November. The rule itself acknowledges the injunctions in both the California and League of Women Voters cases, and provides it won’t go into effect so long as those injunctions remain in force (as one of them still does). And in the League of Women Voters case, Judge Talwani has already indicated that she is inclined to block that rule, too—for the same reasons she enjoined the executive order. That ruling may come as soon as tomorrow—which is when any opposition to such a ruling from the government is due at 8:00 a.m. ET. (The rule is currently set to be “published” in the Federal Register on Wednesday.)
Fourth, and just to be as clear as possible about this, it’s the still-to-come litigation over the USPS Final Rule that’s going to be critical here. In a moment, I’ll get to how the majority opinion from the Supreme Court may and may not influence the trajectory of the League of Women Voters case, but until and unless the injunction of the executive order in that case, or a subsequent TRO or injunction of the USPS Final Rule itself, is vacated by the First Circuit or the Supreme Court, the status quo (that is to say, no mail-in ballot mischief) will persist. The USPS Final Rule itself can’t go into effect until the League of Women Voters injunction is frozen.
Fifth, and turning to the Supreme Court’s actual ruling, the core of the majority opinion is that the blue states brought their challenge too soon. My own view is that both of the dissenting opinions (one by Justice Sotomayor, joined by Justice Kagan; and one by Justice Jackson) already had the better of this argument before the USPS issued its Final Rule last Friday. But to suggest today that these cases are premature is, to use a technical word, bollocks. It’s not going to matter, because the League of Women Voters case will almost certainly be “ripe.” But it’s still a ridiculous rationalization by the Court that I’ll try to write more about later this week.
Sixth, the “ripeness” part of the opinion likely won’t matter much in the League of Women Voters case. Neither will the standing analysis, since voters dealing with a USPS Final Rule are, in numerous material respects, differently situated from blue states challenging the executive order on its face. The part of the majority opinion that may carry over is its discussion of “irreparable harm.” Justice Jackson, as usual, is right about how the majority is once again perverting that concept (as I noted just this morning in discussing the Chief Justice’s “administrative stay” in the ballroom case). But the majority’s wrongheaded irreparable harm analysis will surely apply to a challenge to the USPS Final Rule, too. That should mean that the inevitable emergency application in the League of Women Voters case comes down to the underlying legality of the USPS Final Rule (which would be bad for Trump), except that…
Seventh, the shadow looming over all of this is the “Purcell principle,” the idea that, as election day draws nigh, federal courts should stay their hand rather than issue coercive orders changing the rules for when and how people vote. Purcell is the source of significant controversy and criticism, almost all of it deserved. Among the charges are that (some of) the justices are ruthlessly inconsistent in when they do and don’t apply Purcell—leading to the worry that an injunction against the USPS Final Rule might be deemed “too close to the election,” and stayed under Purcell. That’s a genuine concern, and given the Court’s own repeated transgressions of the Purcell principle earlier this term in Texas, Louisiana, and Alabama, to hide behind it to allow the USPS Final Rule to go into effect would be as indefensible and anti-democratic a ruling as the Court has handed down in a very long time. That brings me to…
Eighth, there’s still a lot to play for in these cases. My own view is that the Court should have denied the stay, especially with respect to section 3, for the reasons the unanimous First Circuit panel articulated in California (Judge Dunlap dissented only as to section 2). But even with tonight’s stay, section 3 remains blocked; the USPS Final Rule remains frozen; and the real question is going to be what happens with the (seemingly inevitable) TRO or injunction against the USPS Final Rule that’s still to come in the League of Women Voters case.
All of this is to say, yikes, but also, stay tuned. And if you’re not already a subscriber, I hope you’ll consider signing up for more posts like this (and also ones written with a bit more … preparation).
Remember, the Purcell principle is only in place when democrats are in charge like when Alabama had to draw another Dem seat and the court said was too late in like February 2022.
thanks for the quick update/summary