The Supreme Court, taking a major step to bar the Trump Administration from making voting harder this year, gave tens of millions of Americans firm assurance on Monday night that they will be able to cast their ballots by mail if that is their choice or their need.
The 7-2 decision refused to interfere with a Boston federal judge’s sweeping ruling that the U.S. Postal Service did not have the legal authority to impose the limits on this year’s congressional elections that President Trump wanted. Those restrictions could have applied to about 60 million voters, many of whom are minorities or live too far from a polling station.
Monday’s unsigned, three-sentence order said the Trump Administration and the Postal Service would not be able to legally justify the restrictions when the Massachusetts case continues to unfold in lower courts. The order also said the question of fairness in that controversy was on the voters’ side.
Although this was not a final ruling against the new postal rules, the practical effect of the order – this close to the November 3 election – is that those rules almost certainly will not apply anywhere in the nation. The proximity of the balloting led one of the Justices who voted with the majority – Brett M. Kavanaugh – to say that he went along with the order because states would not have time to arrange to obey the rules. He also said that the Postal Service probably did have the authority to write the rules.
None of the other six Justices in the majority took that position, joining together in a clear-cut if temporary decision favoring voters’ mail-in rights.
Justice Samuel A. Alito, Jr., joined by Justice Clarence Thomas, issued an eight-page dissenting opinion, fully siding with the Administration and the Postal Service in the dispute.
The Monday evening action was the second by the Court in the past four days to thwart attempts by President Trump and his political followers to alter voting rights as part of a wide-ranging campaign to claim a major role for the federal government to administer elections, even though the Constitution assigns that basic duty to state governments, even for congressional elections.
Last Thursday, the Justices blocked an attempt by the President and Republican Party’s leaders to use new voting-district maps in Missouri that almost certainly would have allowed the GOP to pick up a House seat that Democrats have won. Instead, Missouri must use an older map that probably will assure that the Democrats win two of the state’s eight House seats.
The Missouri controversy was part of the President’s attempt to change the shape of election districts in many states to help Republicans protect their thin majority in the House in a year when the political fortunes of Democrats seem highly favorable.
The President’s effort to change mail-in balloting procedures stems from his long-held belief that this right is abused, especially that it allows non-citizens to vote illegally. Although non-citizen voting has never been shown to be a significant problem, Trump has insisted that it exists widely and results in “election fraud.”
Under a presidential order issued in March, the Postal Service was attempting – for the first time in history – to move deeply into the process of elections by issuing major controls on absentee voting. The rules would have imposed these requirements:
· States would have to give every voter who seeks an absentee ballot a specially marked envelope that includes a personally-assigned barcode that would enable postal officials to decide whether that person is a citizen.
· The ballots, once cast, would have to be compared against a government-compiled list of citizens of voting age, to check to see if each voter is qualified to cast an absentee vote.
· If a state submitted any batch of cast absentee ballots in which even one did not satisfy the citizenship test, the entire batch would not be delivered to election offices and thus those votes would not be counted.
The federal judge in Boston – and, more recently, a federal judge in Washington, D.C. – issued temporary rulings that Congress had not given the Postal Service the authority to adopt such rules. Both judges rejected the argument by postal officials and the Trump Administration that the rules were only about mail delivery, not about regulation of elections.
Both judges had issued nationwide orders against enforcing the rules. Those orders, however, are not final, although they will definitely remain effective through this year’s elections. Further review of the postal rules will continue in the lower courts, and could return to the Supreme Court, but only as they might apply to future elections.
The brevity of the new order issued by the six Justices suggested that the dispute was not a difficult one for them to decide, at least on a temporary basis.
Voting in the majority, although not listed on the order, were Chief Justice John G. Roberts and Justices Amy Coney Barrett, Neil M. Gorsuch, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor. Justice Kavanaugh was counted as part of the majority even though he did not support the parts of the unsigned opinion that temporarily rejected the Postal Service’s power to issue the rules.
