Bonus 241: The Mail-In Voting Applications
What the Supreme Court was asked to do on Monday is narrower than much of the coverage suggests, and a grant of relief would be far less significant than it will outwardly appear to be.
Fourteen weeks before the midterms, the Trump administration has asked the Supreme Court to let the federal government take over a piece of how 23 states and the District of Columbia run their elections. That’s at least one superficial summary of the emergency application the Department of Justice filed on Monday in Trump v. California (the 35th emergency application of the second Trump administration), and it’s how much of the coverage has framed the dispute. Unfortunately, that wildly overstates what the justices were actually asked to do—both in Monday’s application and in a related application filed by a dozen red states on Wednesday. The reality is messier—and, for now, far less apocalyptic.
The underlying question in these cases is indeed a massively important one: whether President Trump had the power, as he purported to exercise back in March, to order the U.S. Postal Service to refuse to deliver mail-in ballots to anyone not on a federal citizenship list built and maintained by the Department of Homeland Security and the Social Security Administration (a list that will fail to account for countless citizens who are legally registered to vote in states that allow mail-in voting—including those who live in states that have refused to cooperate with administration demands for their voter rolls).
At least for now, though, the dispute in front of the Supreme Court involves who can challenge Trump’s order and when—not whether the order is legally valid on its face. Thus, even if the Supreme Court grants either or both of the applications filed this week, all it will be doing is putting off resolution of the merits (and, depending upon what the government does, perhaps only for a matter of weeks).
For reasons I explain below the fold, my own view is that such a move would still be problematic in its own right. Either the Trump administration is going to take meaningful steps to implement this executive order before the election (at which point, the standing and ripeness issues necessarily go away) or it isn’t (in which case, it’s impossible to see how the federal government is suffering the kind of irreparable harm that is supposed to be necessary to obtain emergency relief from the Supreme Court). The key point for present purposes is that, whatever headlines it may generate, even a full grant of relief in Trump v. California would almost certainly leave the federal government’s authority to interfere with mail-in voting unresolved—not settled in Trump’s favor.
For those who aren’t paid subscribers, we’ll be back with our regular coverage of the Supreme Court on Monday. For those who are, please read on.
