President Donald Trump’s plan to kneecap mail-voting practices in November’s midterms ran aground on Monday evening after the Supreme Court blocked the postal system from enforcing it in a 7-2 vote.
The court’s short, unsigned order prevents the United States Postal Service or other agencies from enacting last-minute requirements for mail-in ballots under a new rule it issued last month. Under the rule, postal officials would refuse to deliver any ballots to voters unless they were registered in new, untested systems that USPS was developing on the fly. Roughly one in three Americans voted by mail in the 2024 elections. In some states, elections are exclusively conducted by mail.
State and local election officials across the country had warned of widespread chaos and potential mass disenfranchisement if the USPS rule went into effect. Most states have already begun printing ballots and return envelopes, they claimed, and they lack the time or resources to start the process over. The new rules also amounted to a federal takeover of state election processes, subordinating a significant portion of U.S. voting infrastructure to a federal agency for the first time in American history.
This should have been a 9-0 defeat for the Trump administration. While the court ultimately stopped the plan, it is alarming that three justices thought there was some legal merit to the USPS rule and that two justices all but wholeheartedly endorsed it.
The court’s order is only three sentences long. One of them is a standard boilerplate description of the application’s fate. The remaining two lines could hardly be less illuminating. “The Government is unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction,” the court wrote. “And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.”
That’s it. The court didn’t even include any citations; I normally excise them from quotations for readers’ convenience, but I didn’t need to do so this time. Compare that brevity with the court’s order last month when it first heard a challenge to the executive order. In that instance, the court wrote an unsigned ten-page opinion where it detailed its reasoning at length.
The court’s earlier opinion strongly criticized the lawsuit in that case on standing and procedural grounds, suggesting that the states and other plaintiffs had no right to challenge “internal deliberations” of the executive branch. This was a fairly ironic statement when Trump was publicly posting about his desire to “get rid of MAIL-IN BALLOTS” on his personal social-media website. Everybody knew exactly what was going on.
Despite this, the justices left open the possibility that it might rule in the states’ favor the next time around, and so they did. It would have been stunning if they didn’t. California and its fellow plaintiffs made sure to frame their case on the justices’ terms. They not so subtly invoked the major-questions doctrine, which the conservative justices have used to defang policymaking via broadly written statutes by Democratic presidents.
“Never before has USPS attempted to interfere with elections in this way, let alone a fast-approaching election,” California told the court in a brief filed last week. “And nothing in federal law authorizes USPS to refuse to deliver ballots. To the contrary, Congress has exhaustively enumerated the types of materials that USPS can lawfully refuse to deliver. Ballots are not among them.”
Their citations pointed to cases where the conservative majority struck down Biden’s student-debt relief plan, his COVID-19 testing mandate, and the Obama administration’s power-plant emissions rules. “The rule challenged here arguably has greater political significance than the subject of any of the court’s prior major-questions cases,” the states noted.
That satisfied one prong of the court’s test for upholding the lower court’s injunction. The second prong is slightly more nebulous. When a court “balances the equities,” it effectively looks at who will be harmed more by the absence of an injunction. Sometimes this can be a difficult question where judges must slice through layers of competing public interests before deciding whether to grant an injunction or not.
In this case, however, the equities heavily favored the states. “Whatever else may be said of USPS’ new rule, it would wreak havoc on States and their voters if it takes effect at this late point—when some states, including North Carolina and Wisconsin, have already begun to mail out ballots,” the states noted, citing an election-related precedent from 2020. “This Court has repeatedly refused to allow far less disruptive changes to take effect on ‘[the] eve of an election.’”
Justice Brett Kavanaugh wrote a one-paragraph concurring opinion where he tried to triangulate some kind of middle ground between the two sides. He concluded that there was “at least a fair prospect” that the Postal Service’s rule fell within its “statutory authority,” which would be a major boost to the Trump administration. This is an exceedingly forgiving standard for the White House and is hardly surprising from Kavanaugh, who might be the court’s most enthusiastic supporter of executive power.
At the same time, the justice concluded that it would be “arbitrary and capricious” under the Administrative Procedure Act to enforce the rule now. State and local election officials, he reasoned, “do not have sufficient time to reasonably implement the rule before the elections.” Despite his reference to the APA standard, this is functionally no different from holding that the equities favor the states.
In short, while Kavanaugh wasn’t willing to allow the USPS to take effect in the 2026 election, he signaled that he might be open to it for the 2028 election. Kavanaugh loves to do this sort of thing in concurring opinions for reasons known only to him. In Trump v. Barbara, he managed to conclude that Trump was largely right about the Citizenship Clause but that Congress had enacted birthright citizenship by statute—a position neither advanced nor desired by any side in the case.
Kavanaugh’s attempts to please everyone were ultimately preferable to the view advanced by the only two dissenting justices. The real stunner comes from Alito’s dissent, which was joined in full by Justice Clarence Thomas. It is an unambiguous embrace of the president’s ability to seize control of state election processes for spurious reasons and personal political gain.
A quick note on the vote count: It takes at least a majority of five votes to do anything on the court other than grant a petition for review, which requires only four votes. I described this case as a 7-2 decision based on the publicly disclosed dissents by Alito and Thomas. But the Supreme Court’s rules do not require justices to say how they vote in shadow-docket cases. As a result, it is theoretically possible that as many as two other justices voted with Alito and Thomas, but did not publicly announce it.
I have inconsistently credited or not credited this possibility in my past writing. These vote totals would become public knowledge when a now-sitting justice’s papers are opened for historians and journalists. Past justices have sometimes made their papers available to the public as soon as after their own death. Earlier this month, however, The New York Times reported that the justices have reached a secret “consensus” in 2016 about future releases of their papers. This consensus may render these papers—and thus the vote totals—unknowable until every other justice involved has died, even if they have all retired from the court.
As a result, the vote totals in this case (and any future ones) will likely not become public within my expected lifespan. Going forward, I will assume that no justice has privately dissented from an outcome on the court’s emergency or administrative docket if at least one justice has publicly dissented from it. There is no journalistic value in suggesting that some of the justices might have secret positions or beliefs without supporting evidence. Members of the Supreme Court are free to request corrections if I incorrectly describe how they voted in a specific case or outcome, and I will be more than happy to amend my work accordingly.
On the first prong of the court’s test, Alito gives extraordinary deference to the executive branch’s ability to regulate elections based on broad grants of congressional authority. He argued that Congress imbued “In sum, the plaintiff States’ statutory claim is based on a contestable reading of a broadly drawn statute empowering the Postal Service to regulate the mail,” he concluded.
On the second prong, where the court must balance each side’s interests, Alito swings even harder towards Trump. “As for the equities, the government has a strong interest in enforcing the rule, and implementing it will also ‘enhance the visibility of Federal Ballot Mail’ in order to better detect election fraud,” he wrote. Trump and many other Republicans have asserted for decades that there is widespread fraud in U.S. elections. There is no evidence whatsoever to support this conspiracy theory.
A presidential commission assembled by Trump during his first term found no evidence to support Trump’s false claims that more than 3 million illegal ballots were cast in the 2016 presidential election, which he won. Investigations launched by the Justice and Homeland Security Departments at Trump’s behest during his first and second terms also found no evidence that elections were compromised. State and local investigators have occasionally found instances of voter impersonation or non-citizens voting in federal elections, but the number of legitimate cases is in the dozens, compared to the billions of ballots cast this century.
Unfortunately, Alito appears to be among those who believe in the conspiracy theory as well. In 2021, he authored the majority opinion in Brnovich v. Democratic National Committee, which involved a lawsuit against two Arizona voting restrictions. The 6-3 ruling substantially narrowed Section 2 of the Voting Rights Act for challenging state elections laws that are facially neutral but racially discriminatory in impact. Though he claims to be a textualist, Alito invented multiple exceptions to the VRA’s provisions out of whole cloth, including one that allows states to evade VRA lawsuits if they claim to be acting to prevent voter fraud.
“One strong and entirely legitimate state interest is the prevention of fraud,” Alito wrote. “Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight. Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.”
If modern American history had examples of significant or systemic voting fraud, Alito’s position might be easier to defend. But the utter absence of any evidence that voting fraud is a factor in American elections is damning. Both then and now, Alito has used the illusory threat of voter fraud to justify concrete restrictions on Americans’ ability to vote. He and his associates are using a fake risk to election integrity to impose real ones.
“On the other side of the balance, the plaintiff States invoke the practical effects of implementing the rule close to the midterm elections,” Alito explained. “I take that problem very seriously, but it is not enough to convince me to deny the application.” If nothing else, his candor is refreshing. He dismisses the broad, bipartisan concerns about the USPS rule’s potential for mass disenfranchisement by noting that some states still support the rule—likely because it would not affect them—and because California et al. “bear a substantial share of the blame for the rule’s timing” by fighting it in court all summer.
He even takes a shot at his fellow justices and lower-court judges for their own alleged share of the blame. “Indeed, this Court spent from late July to the end of August drafting nearly 40 pages of opinions, including two dissents, despite the government’s public notice that it would not publish a final rule while subject to the injunctions, and its representation that it had a strong interest in issuing its rule in early-to mid-August to allow time to implement it,” he complained.
That jab only makes sense if one accepts that the concerns of disruption are valid, or else there would be no reason to blame them on his colleagues. Everything, in short, must bend to one president’s whims to seriously disrupt American elections for his own gain. In Alito and Thomas’s view, it apparently does not matter if he’s fighting a fake problem or if our representative system of government. The states, the lower courts, and the justices themselves must bend the knee. Thankfully for the republic, the other seven justices are not quite so supine.
