The court’s short, unsigned order prevents the United States Postal Service or other agencies from enacting last-minute requirements for mail-in ballots under a new rule it issued last month. Under the rule, postal officials would refuse to deliver any ballots to voters unless they were registered in new, untested systems that USPS was developing on the fly. Roughly one in three Americans voted by mail in the 2024 elections. In some states, elections are exclusively conducted by mail.
This should have been a 9-0 defeat for the Trump administration. While the court ultimately stopped the plan, it is alarming that three justices thought there was some legal merit to the USPS rule and that two justices all but wholeheartedly endorsed it.
That’s it. The court didn’t even include any citations; I normally excise them from quotations for readers’ convenience, but I didn’t need to do so this time. Compare that brevity with the court’s order last month when it first heard a challenge to the executive order. In that instance, the court wrote an unsigned ten-page opinion where it detailed its reasoning at length.
Despite this, the justices left open the possibility that it might rule in the states’ favor the next time around, and so they did. It would have been stunning if they didn’t. California and its fellow plaintiffs made sure to frame their case on the justices’ terms. They not so subtly invoked the major-questions doctrine, which the conservative justices have used to defang policymaking via broadly written statutes by Democratic presidents.
Their citations pointed to cases where the conservative majority struck down Biden’s student-debt relief plan, his COVID-19 testing mandate, and the Obama administration’s power-plant emissions rules. “The rule challenged here arguably has greater political significance than the subject of any of the court’s prior major-questions cases,” the states noted.
In this case, however, the equities heavily favored the states. “Whatever else may be said of USPS’ new rule, it would wreak havoc on States and their voters if it takes effect at this late point—when some states, including North Carolina and Wisconsin, have already begun to mail out ballots,” the states noted, citing an election-related precedent from 2020. “This Court has repeatedly refused to allow far less disruptive changes to take effect on ‘[the] eve of an election.’”
At the same time, the justice concluded that it would be “arbitrary and capricious” under the Administrative Procedure Act to enforce the rule now. State and local election officials, he reasoned, “do not have sufficient time to reasonably implement the rule before the elections.” Despite his reference to the APA standard, this is functionally no different from holding that the equities favor the states.
Kavanaugh’s attempts to please everyone were ultimately preferable to the view advanced by the only two dissenting justices. The real stunner comes from Alito’s dissent, which was joined in full by Justice Clarence Thomas. It is an unambiguous embrace of the president’s ability to seize control of state election processes for spurious reasons and personal political gain.
I have inconsistently credited or not credited this possibility in my past writing. These vote totals would become public knowledge when a now-sitting justice’s papers are opened for historians and journalists. Past justices have sometimes made their papers available to the public as soon as after their own death. Earlier this month, however, The New York Times reported that the justices have reached a secret “consensus” in 2016 about future releases of their papers. This consensus may render these papers—and thus the vote totals—unknowable until every other justice involved has died, even if they have all retired from the court.
On the first prong of the court’s test, Alito gives extraordinary deference to the executive branch’s ability to regulate elections based on broad grants of congressional authority. He argued that Congress imbued “In sum, the plaintiff States’ statutory claim is based on a contestable reading of a broadly drawn statute empowering the Postal Service to regulate the mail,” he concluded.
A presidential commission assembled by Trump during his first term found no evidence to support Trump’s false claims that more than 3 million illegal ballots were cast in the 2016 presidential election, which he won. Investigations launched by the Justice and Homeland Security Departments at Trump’s behest during his first and second terms also found no evidence that elections were compromised. State and local investigators have occasionally found instances of voter impersonation or non-citizens voting in federal elections, but the number of legitimate cases is in the dozens, compared to the billions of ballots cast this century.
“One strong and entirely legitimate state interest is the prevention of fraud,” Alito wrote. “Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight. Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.”
“On the other side of the balance, the plaintiff States invoke the practical effects of implementing the rule close to the midterm elections,” Alito explained. “I take that problem very seriously, but it is not enough to convince me to deny the application.” If nothing else, his candor is refreshing. He dismisses the broad, bipartisan concerns about the USPS rule’s potential for mass disenfranchisement by noting that some states still support the rule—likely because it would not affect them—and because California et al. “bear a substantial share of the blame for the rule’s timing” by fighting it in court all summer.
That jab only makes sense if one accepts that the concerns of disruption are valid, or else there would be no reason to blame them on his colleagues. Everything, in short, must bend to one president’s whims to seriously disrupt American elections for his own gain. In Alito and Thomas’s view, it apparently does not matter if he’s fighting a fake problem or if our representative system of government. The states, the lower courts, and the justices themselves must bend the knee. Thankfully for the republic, the other seven justices are not quite so supine.
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