Suprem Court Mail-In Ballots Decision a Long-Term Setback for Trump

As I noted in my first post on today’s decision in Alabama v. California — which gives the background of what follows here — the Supreme Court was on fairly solid ground in throwing out of court the challenges to Section 2 of Donald Trump’s mail-in ballot executive order. But the challenge to Section 3(b) raises more serious issues. The key element of that section directs the Postal Service to refuse to deliver ballots for federal elections mailed by people not verified by DHS as citizens. In order to ensure that everyone eligible under state law to vote can do so, once the USPS has issued regulations (which it has not, due in part to injunctions, and might not in time for the election), states will need to print envelopes for those ballots. Those envelopes need to comply with USPS rules. And the states can’t comply because the rules don’t exist yet.

This is what I was talking about in terms of the Court preferring to resolve legal questions as opposed to cleaning up messes. For now, the mess remains. But sometimes, prudent judgments keep courts from playing Pontius Pilate with cases that arrive on their doorsteps. In order to properly assess what the Court did, it’s useful to review some longstanding gripes with the state of election law.

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Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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As I noted in my first post on today’s decision in Alabama v. California — which gives the background of what follows here — the Supreme Court was on fairly solid ground in throwing out of court the challenges to Section 2 of Donald Trump’s mail-in ballot executive order. But the challenge to Section 3(b) raises more serious issues. The key element of that section directs the Postal Service to refuse to deliver ballots for federal elections mailed by people not verified by DHS as citizens. In order to ensure that everyone eligible under state law to vote can do so, once the USPS has issued regulations (which it has not, due in part to injunctions, and might not in time for the election), states will need to print envelopes for those ballots. Those envelopes need to comply with USPS rules. And the states can’t comply because the rules don’t exist yet.

This is what I was talking about in terms of the Court preferring to resolve legal questions as opposed to cleaning up messes. For now, the mess remains. But sometimes, prudent judgments keep courts from playing Pontius Pilate with cases that arrive on their doorsteps. In order to properly assess what the Court did, it’s useful to review some longstanding gripes with the state of election law.