UPDATE:  By the end of the day Monday, the Justice Department asked the federal judge in Boston to swiftly nullify the prior preliminary order that was similar to the one at issue in the Supreme Court ruling earlier in the day.  The six-page motion, seeking action by Tuesday afternoon, did not explore fully the fact that the Postal Service has now issued a final order, except to say that if challengers want to contest that final order, they should start a new case.  If not successful with the motion, the Department says it will go quickly to the court of appeals.

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A divided Supreme Court told lower court judges on Monday not to interfere with President Trump’s initial steps to restrict voting by mail in this year’s midterm election, but explicitly left undecided the legality of that effort.  In significant ways, the Court’s 6-to-3 ruling was out of date even before it was issued publicly in mid-afternoon.

The President has ordered the U.S. Postal Service to make a plan to refuse to deliver any mailed ballots if states do not use federally compiled citizenship lists to make sure that no non-citizens cast votes.  The order is one of Trump’s boldest attempts so far to have a major role in how the November election is carried out – a function that the Constitution largely leaves to state governments.

Trump, who votes by mail himself, has long argued that absentee balloting leads to election fraud, especially by allowing non-citizens to vote by that method.   So far, Trump’s order has not fared well.  Two lower courts have already ruled that it is probably unconstitutional.

To carry out the President’s order, the Postal Service would have to take two steps: first, make a plan for other federal  agencies to compile, for each state, a list of citizens who are old enough and thus eligible to vote; and second, put the plan into final form and send it out to the states.

Postal officials took the first, preliminary step on June 2, and that is the only action that the Supreme Court has now allowed.  Last Friday night, August 21, postal officials issued the plan in its final form, saying that they expect to use it for the election this year.

Earlier in the day Monday, the Trump Administration notified the Supreme Court that the postal plan now existed in final form.  However, that fact was entirely missing from the 10-page unsigned majority opinion and from both dissenting opinions, which total 27 pages.

What apparently happened was that the Justices, who have been working on this controversy since it reached the Court on July 27, focused their ruling solely on the Postal Service’s June 2 preliminary actions.

The majority allowed those steps, ruling that the President’s power to give directions to agencies within the Executive Branch that he leads would be disrupted if the courts stepped in prematurely.

Several aspects of what happened Monday are fundamental:

·     The Court has not yet ruled on the final plan’s legality.  The majority stressed that its ruling “does not mean that any measures taken by the government to implement the [President’s] order will necessarily be lawful.  On that score, time will tell.”

·     The Court’s ruling temporarily blocked, at least on a preliminary basis, only one of the two lower-court orders that had ruled against the Postal Service.  Monday’s order came in a case filed by 23 states, arguing that the President and the Postal Service were interfering unconstitutionally in state control of voter eligibility.  The ruling nowhere mentioned a separate lower-court order against the Postal Service in a case filed by the League of Women Voters and other groups that educate voters about election procedures. That order has not yet reached the Supreme Court.

·     Lower courts not directly affected by what the Justices did Monday will now seek to sort out how they may proceed in the wake of that ruling.  A federal judge in Boston who has been centrally involved in reviewing the dispute is expected to react promptly to Monday’s development.

The Court did not identify how each Justice voted Monday, but it would have taken at least five votes to block the lower court order at issue.  Since there were three dissenters (liberal Justices Ketanji Brown Jackson, Elena Kagen and Sonia Sotomayor), it appears that six conservative Justices supported the ruling:  Chief Justice John G. Roberts and Justices Samuel A. Alito Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.