The Supreme Court on Monday upheld a federal court order blocking the U.S. Postal Service from imposing new restrictions on mail voting through the midterm election. It’s a major victory for voters, who can now cast their mail ballots with confidence this fall. It’s also another significant defeat for the Trump administration’s coordinated attempts to take over the election process and undermine public confidence in our democratic system.
In March, the president issued an executive order directing the USPS to refuse to deliver mail ballots unless voters appeared on a newly created list and their ballots met certain new specifications. If implemented, this would have sown chaos and disenfranchised huge numbers of Americans, about one-third of whom vote by mail. The order exceeded the president’s constitutional authority, just as his previous executive order on elections did. Several courts have now blocked both orders.
The Constitution gives authority over elections to the states and Congress, not the president. The Constitution also gives Congress, not the president, power over the Postal Service, and Congress has never authorized the USPS to withhold election mail or set election rules.
A coalition of nonpartisan voter service and civic organizations filed a lawsuit to block the executive order on mail voting, one of five cases brought across the country. The plaintiffs include the League of Women Voters of Massachusetts, League of Women Voters, Association of Americans Resident Overseas, U.S. Vote Foundation, OCA – Asian Pacific American Advocates, and Delta Sigma Theta Sorority. The Brennan Center represents these groups with co-counsel American Civil Liberties Union, ACLU of Massachusetts, Legal Defense Fund, Asian Americans Advancing Justice | AAJC, and LatinoJustice PRLDEF.
In one of the cases, a federal district court blocked the order. But on August 24, the Supreme Court concluded that the court had acted prematurely because the USPS had not yet issued a final rule to implement the order at the time the case was filed. However, the USPS had issued its final rule on August 21, so we went back to court and on September 4 secured a new preliminary injunction that stopped the USPS from implementing its final rule. The federal government then asked the Supreme Court to pause that order during an appeal.
On September 14, the Supreme Court issued a three-sentence, unsigned order that leaves the preliminary injunction in place. The Court concluded, “The Government is unlikely to succeed on the merits of its challenge.” Justice Brett Kavanaugh concurred separately. He wrongly posited that the USPS likely had the statutory authority to issue its rule, but he ultimately concluded that applying the rule this year would be unlawful because “state and local election officials do not have sufficient time to reasonably implement the rule before the elections.” Only Justices Samuel Alito and Clarence Thomas dissented.
