SCOTUS Delivers First Stage Win for Trump on Mail-In Ballots

The Supreme Court on Monday, August 24, delivered a win for President Donald Trump in his ongoing efforts to strengthen election integrity. In a 6-3 ruling, the court lifted an injunction that had prevented the US Postal Service from complying with the administration’s order on mail-in ballots. The ruling clears the way for the USPS to check ballots against a DHS-provided list of citizens; however, it does not unblock the piece of the order that would allow USPS ballot-envelope design and tracking rules to take effect — that remains frozen under a separate, still-unresolved injunction. While this is nowhere near the end of the road for the matter, it is certainly a decisive first step.

Improperly Sued

Earlier this year, the White House issued an executive order on “Ensuring Citizenship Verification” in federal elections. The order included three main points. First, it directed the secretary of Homeland Security to compile a list for each state that includes the names of all citizens who will be at least 18 years old at the time of the election. Second, it called for prioritizing investigations of those who issue federal ballots to ineligible voters. And third, it instructed the USPS to “initiate a proposed rulemaking,” including that “outbound ballot envelopes… contain a unique barcode to facilitate tracking.”

Free with the Daily Briefing 85Essays Unravel the Constitution

Join Free & Read

Soon after the EO was issued, a number of states (and the District of Columbia) launched a suit claiming that sections two and three were “unconstitutional.” In the case – called Trump v. California - the government countered that no injury was being caused and that the plaintiffs lacked standing to actually sue.

SCOTUS largely agreed that the lower court did not have such jurisdiction, and also on the issue of “ripeness.” The court writes that case law:

"[F]orbids federal courts to adjudicate disputes that are 'dependent on contingent future events that may not occur as anticipated, or indeed may not occur at all.'"

No Obligation

Notably, the court pointed out that the executive order imposes no obligation on the states to actually do anything, thereby undercutting the plaintiffs’ standing. The ruling makes plain that the order is one from the chief executive to a subordinate (in this case, the secretary of Homeland Security).

The issue here is that any injury is only a potential for the future and not a foregone conclusion. SCOTUS highlights that the lower court seemingly tried to “avoid this straightforward analysis by misreading the Order.”

The USPS released its proposed list of provisions in accordance with Trump’s EO, but as the High Court order recognizes, at the time the suit was filed, these rules were not final or binding. As such, the unsigned SCOTUS ruling explained, “It is not a proposed rule, let alone a final rule. And it imposes no legal requirements on the States.” The court continued:

“The States cannot preemptively concretize their injury by expending funds before the Postal Service finalizes a rule. Spending money to hedge against a ‘speculative threat’ does not constitute an Article III injury.”

Mail-In Ballot Battles Ahead

The administration’s effort to ensure only citizens are delivered mail-in ballots prior to November’s midterm elections will almost certainly face a number of further legal challenges. Indeed, a concurrent injunction brought on behalf of the League of Women Voters is still outstanding. Whether such actions ultimately succeed is far from a foregone conclusion.

As the deadline to start sending out ballots draws near, we can expect to see obfuscation, lawsuits, and perhaps more than a smattering of “misreadings” of directives. Ultimately, as per the US Constitution, the states control elections, but they don’t necessarily control the apparatus that allows them to happen.