The Supreme Court stops Donald Trump changing voting rules... for now

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1:00of November's midterm elections, something Donald Trump has been trying to do since the start of his second term. Now, the Supreme Court has an inbuilt conservative majority. Donald Trump appointed three of the justices, but now he's furious with his very own appointees because they won't bend to his wishes. This won't be the end, though, of his attempts to change the way Americans vote in elections. And that effort could still have a big impact on the results in November. Welcome to AmeriCast.

1:29americast americast from bbc news whatever you want to talk about abdul keep my wife's name the hell out of your mouth because she's way out of your league the tide is coming and this time we intend to win it all so he doesn't want to do the job he wants to build his ballroom and travel with natalie on their apparently defenseless flying palace gifted by the emir of Qatar. When I'm not around, you're going to be broke. There's not going to be anybody to report on. Nobody gives a damn about anybody else.

2:08Hello, it's Sarah in the BBC's Washington Bureau. And it's Anthony here with Sarah in Washington, D.C. Anthony, we've talked quite a few times on the podcast already, not just about the midterm elections, but the way Donald Trump's been trying to change the rules around them and doing all sorts of things that might, he thinks, benefit his Republican candidates. And there was a big blow to one of his efforts this week. Yeah, it was the Supreme Court. And again, this is what's called the shadow docket. This was a preliminary case. This wasn't one that was argued and merits briefs and all of this.

2:37It was all kind of bubbling up rather quickly. And the Supreme Court decided not to step in and allow the desired changes that Donald Trump and the U.S. Postal Service have proposed to handling mail balloting, too, in the Trump administration's views, make sure that these mail ballots are secure and that actual U.S. citizens are casting them and that they have enough information on them to be delivered. So it sounds like at this point mail voting is going to proceed as it has in recent years. What Donald Trump wanted to do was pretty dramatically alter the way these mail ballots would be handled just a few months before the election.

3:14Yeah, we're less than eight weeks out now, I think. And what I wanted to do, if I understood it correctly, was have all the individual states who actually run their own elections. It's not a federal effort. They were to send lists of voters to the Postal Service. And unless somebody was on that list, they wouldn't receive a postal ballot. And each postal ballot had to have a unique barcode stamped on the envelope. And the argument was there just wasn't time to organize all of this before the elections, not least because the web portal where the states were supposed to upload their voters names wasn't even working.

3:48Yeah, Sarah. So this all goes back to that March executive order that Donald Trump issued directing the post office and other government departments to come up with a plan in order to secure the mail balloting. He's been talking about mail balloting being rife with fraud for years now, although I will add that there hasn't been any tangible evidence of the kind of widespread voter fraud that would affect elections. But he issued this executive order, was challenged in court. But if you remember just not too long ago, the Supreme Court kind of let that order go through and let the post office come up with these these guidelines for handling ballots.

4:26But now other courts stopped those guidelines from going into effect. And this time, the Supreme Court said, yes, too close to the election. It doesn't look like the Trump administration is going to be able to win on the merits of this case. Much too close to the election. Let's just punt this off and let this work through the courts. And so it is a setback for Trump and for his efforts to try to change mail balloting so close to the election. And because they were saying it was happening too close to the elections to be brought in now, And in fact, several states had already sent out some of their postal votes or mail-in ballots.

5:00It left some room for him to come back and try and get this done for the 2028 presidential election, though, didn't it? Basically, if he had started earlier and the states had more time, then it's possible that the court would have ruled that this was OK. Yeah. And they still may rule that it's OK for 2028. I think what the justice is. And this was, I believe, a seven to two decision. You had Alito and Clarence Thomas being the two dissenters to this decision. So you had a few conservatives siding with all of the liberals, three liberals on the court, in order to block this from happening right now.

5:33They did leave the door open for the administration to cross all their T's and dot their I's, to come up with guidelines that follow the Administrative Procedure Act, which governs how an administration can issue new rules. And two years is plenty of time for them to do this again. I think in a perfect world, the Trump administration would want Congress to pass a law that sets all of this out very clearly. That would be much less open to legal challenge. But they do have much more runway to try to change this for a federal election two years from now than one that is happening. As you mentioned, North Carolina ballots are already in people's hands.

6:15And so, you know, changing the rules on how they apply, it was impractical in the extreme. And Donald Trump's argument is that, as you said, that there's a lot of fraud in mail-in voting. And he claims, isn't he, that it's a lot of non-U.S. citizens have somehow managed to get themselves onto the voter rolls and that they use postal votes to cast their votes. And that's illegal. And it would be it's illegal for them to vote. It's illegal for a state official to sign them up. And crucially, there's no evidence that this happens in very big numbers at all. And we've heard some states recently announcing how many non-citizens they've found on their voter rolls, haven't we?

6:51And it's in the hundreds, very low thousands, like 0.1 % of the electorate in those states. But nonetheless, Donald Trump continues to advance this case, doesn't he? That people who are not eligible to vote are doing so. And the other piece of legislation that won't get through now before these November elections, but he will no doubt continue with and try and get through in 2028, is the SAVE Act that he wants Congress to pass. And that's slightly different, isn't it? That's not about just about mail-in ballots. That's about people having to turn up with photographic ID at the polls to be allowed to cast a ballot.

7:28And a lot of states do that already. When I vote in Virginia, I need to have my driver's license to cast a ballot. Now, if I don't, there are alternative provisions that you can do to cast a ballot. But a lot of states now have that. But this would make a uniform national rule. It also would require proof of citizenship in order to register to vote, which is a higher bar for a lot of people. Not every American has a passport that they can show. Not everyone has access to their birth certificate. A lot of people may have different names than are on their birth certificate because they've gotten married or changed their names or for whatever reason.

8:02And so it creates new obstacles, according to critics, to registering to vote, which is a constitutional right. And and so it gets a little a little dice here as far as whether that would infringe on on the Constitution or not. But the first things first, Trump wants to get that passed. And there hasn't been the will in Congress to enact that. And if Democrats win in the midterms, there's not going to be any chance that that gets through. The other thing I should say is that, yes, Donald Trump alleges that there's a lot of fraud in mail balloting, that non-citizens are registering to vote and casting ballots.

8:40All of these states have pretty rigorous systems to verify where these ballots came from, when they're received, how many have been cast. It's not just you can pick up a ballot at your local grocery store, you get one in the mail and you get another one in the mail and vote twice. Each one does have some sort of a barcode. And that's one of the reasons why California takes so long to count all of their ballots, as we've discussed in the past, is because each single one has to be matched to a voter, has to make sure that no one that voter hadn't already cast a ballot in that election to verify the security of all of that.

9:19And so there are systems in place as it is now to ensure the security of this. And I mean, you could have concerns about it, right? I mean, in the mail, things get lost in the mail all the time and ballots could be destroyed or misplaced. So there's a kernel of truth, as with a lot of Trump's claims, there are a kernel of truth about concerns about mail voting, I suppose. But the idea that there's some sort of an election changing level of fraud, there's no evidence of that. No, and he talks all the time about it being corrupt or fraudulent and almost as though it's kind of sinful to cast a mail-in ballot, that you're doing something wrong if you do that.

9:59Unless, of course, you happen to be president of the United States because he himself has done this a couple of times. And just a few weeks ago in a Florida special election, he used a postal vote. And this was his justification when he was asked about it by reporters at a White House cabinet meeting. You mean I used a mail-in ballot? You probably said, yeah, I did. Why did you do that? You know what? Because I'm president of the United States. And because of the fact that I'm president of the United States, I did a mail-in ballot for elections that took place in Florida. Because I felt I should be here instead of being in the beautiful sunshine.

10:33So you were in Palm Beach, sir, the last few weekends. That's right. And I, yeah. And I decided that I was going to vote by mail-in ballot because I couldn't be there. Right there, Donald Trump giving a pretty good justification for why mail voting is sometimes valid, even if the state doesn't have a more expansive mail voting system. Sometimes you just can't make it to a polling place and cast a ballot. Now, there are states like California and Oregon and Utah and Washington and Colorado that almost all the ballots are cast by mail. And that's a little different than absentee voting by mail, which even the SAVE Act would still allow in certain circumstances.

11:11But those states have been doing it for quite some time now. I mean, Oregon and Colorado for decades. And they have a system and it seems to work and there hasn't been any kind of evidence of fraud, despite the Trump administration now for the past year and a half, really giving a close look, trying to find some evidence that there's a problem with this. And there's a perception that Democrats are more likely to vote by mail than Republicans, isn't there? And that partly comes from what happened in 2020, where with the initial vote counts, it looked as though Donald Trump was ahead. And then as more and more of the mail and ballots were counted as they came in, Joe Biden crept ahead and then eventually moved to the position where he won the election.

11:55And so because of that, because it was Democrat votes that were being counted by mail, it's kind of presumed that it's somehow allowing the system benefits them in some way. You can see that that's why it's riled Donald Trump up. But in some of the states you're talking about where the reason for using mail-in ballots is that they're really rural and a lot of voters are just miles and miles away from a polling station. Those are probably Republicans. Yeah, they very well could be. And actually, one of the states and some of the politicians who have objected most to the SAVE Act and these ideas of creating new restrictions on mail balloting is Alaska, which very rural, has been safely Republican in most presidential elections.

12:34But you have people like Lisa Murkowski, the Republican senator of Alaska, saying she was not going to support the SAVE Act because she knows that there are there are people on the hinterlands in Alaska who are not going to be able to get on their plane to fly to the big city to cast a ballot or to register to vote in person and to have all these documents. So there's a practicality concern. And again, what I said before, when it gets down to it, this is a constitutional right. You hear some people say, well, you have to show an ID to get on a plane or to buy booze and things like that. There's no constitutional right to buy a bottle of wine.

13:11There is a constitutional right to be able to vote in American elections. and it's the duty of the government to try to make that as easy and as streamlined as possible. And one of the ways that states have tried to do that, and one of the ways that they've increased voter turnout is by relying on mail balloting because it's a lot easier for people to just cast a ballot than to take off work on a Tuesday and go stand in line sometimes for half an hour, 45 minutes, an hour in some of these places to cast a ballot. it's night and day as far as making it easier to be able to exercise your right. Now, of course, the fear is, and a lot of people say this, they worry that with Donald Trump having railed against mail-in voting so much, partly as he was trying to get these changes through, also as he was advocating the SAVE Act, he did a television address a couple of months ago where he was talking about fraud in elections more broadly, and he was complaining about mail-in ballots.

14:09He complains about them all the time. That even though he hasn't been able to change the rules. What he has done is sow the seeds of doubt about the electoral system and about the potential for fraud in voters' minds so that if the midterm elections don't go his way, he's prepared the ground to come out and say there was cheating, there was fraud, we need to overturn some of these results, investigate what was happening. And so actually, in many ways, as long as we are talking about the potential for fraud with mail-in ballots, that's kind of in Trump's job for him. Right. And because so many of these mail balloting states are democratic, that partisan divide on the system allows Trump to condemn these democratic states.

14:50And when it takes California two weeks to figure out who their members of Congress, elected members of Congress are, that opens the door for Trump to make allegations of voter fraud, which he has done in the past. And even in 2020, which you talked about, it wasn't all mail balloting that was causing this. It was big cities like Milwaukee and Detroit and Philadelphia taking longer to count their ballots, even ones cast in person. And because of these discrepancies in the way ballots are counted and the timing of how ballots are counted, Donald Trump has taken advantage of that in order to cast suspicion on the ways that Democrat votes are counted and the timing for those those votes coming in.

15:35He said, well, it was at midnight or two in the morning. But then at four in the morning, all these ballots from Milwaukee showed up. And that's why he lost Wisconsin, which I mean, yes, that's the way it went. But there are explanations for why it went that way. And there are explanations for why California takes so long to count ballots and there are explanations for all this. But because of this divide on how people vote and how different people in different parties vote, it kind of sets it up for this gaming of the system and what Donald Trump is trying to do. If everyone voted by mail or more Republicans voted by mail, then this would change, I think, the strategy behind what Donald Trump is doing.

16:16Now, let's look what this does to Donald Trump's relationship with some of the justices on the Supreme Court, because he's had a lot of favorable rulings from them, we should say. And even before he came back to the White House, they ruled that he couldn't be found criminally liable. Well, no president could be found criminally liable for anything that they did as they were carrying out their duties as president. That was a very big win for Donald Trump. But they've issued a couple of defeats recently, notably striking down his trade tariffs, saying that he'd used the wrong rules in order to imply them and now on mail-in voting.

16:47And he was very personal, wasn't he, in his attacks on them, not just on the decision, but on the justices themselves when he was railing about this on Truth Social. Yeah, it was a long post, but it's worth reading some of it. He said that these are not the people I interviewed to serve on the United States Supreme Court. So he's talking about justices that he picked and had appointed. He called them merely a shell of their original selves. And then he goes on to reference the terrorist ruling, which still gets under his skin and calls it shockingly bad rulings. And he said that it is a court that will go down as having rendered some of the most destructive, hurtful and damaging decisions in our country's history.

17:28I imagine also in his mind is the one about about birthright citizenship, which really got to him. He said, it is not easy for me to write this criticism of the United States Supreme Court. It will likely cost me dearly for years to come, but I feel it my obligation and duty as president to do so for the America we love. I mean, that is, you have to, I mean, we talk about things that Donald Trump does that are unprecedented or such breaks the norms and traditions to so specifically go after Supreme Court justices and the Supreme Court as an institution, as a separate branch of government. No one, no president has ever talked like this before.

18:08And I don't know if the justices will rule against him more now because he says this. I mean, they like to think that they are independent and above politics, but it definitely will create tension, some awkward moments in the next State of the Union address when some of them have to sit there in the front row and listen to him. Yeah, but thinking of the State of the Union address, is that right that this is completely unprecedented? Because I remember Barack Obama having a go at the Supreme Court justices that were sat right there in front of him as he delivered one of his State of the Union addresses.

18:39And he was upset about the decision they had made that would allow basically more money to flow into American elections, the Citizens United decision. With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. He had a go at them like right there in the Capitol. Yeah, he said it was wrongly decided. And Samuel Alito, one of the justices who was in the majority on that case, shook his head and said no. That seems pretty, pretty tepid criticism compared to what we're hearing from from Donald Trump.

19:21But yeah, there are presidents who have certainly not been happy about Supreme Court decisions in the past and have have chafed at their rulings. But to use this kind of language, I mean, it's Donald Trump. He finds new and interesting ways to go over the top with rhetorical flourishes. Now, his attorney general, Todd Blanche, was out in the sunshine in the Rose Garden yesterday taking questions from reporters. And of course, this decision came up. And it was, you know, is it appropriate for the president to be talking about the Supreme Court this way? And also, would the ruling in any way affect some of the investigations that are ongoing as they're still looking for to try and prove fraud in the 2020 election?

20:03So he was asked about the president's comments at this press conference. The Republicans and Democrats should want free and fair elections. So so while while the Supreme Court did what it did, we're not going to stop the work that we're doing. But we are, of course, going to going to follow the orders of the court. As far as President Trump's truth about the justices, he is very frustrated. And I wasn't at the interviews that he participated in during the last administration when he selected these folks to be on the Supreme Court. He has every right. And indeed, he should communicate his concerns with the Supreme Court whenever he has them.

20:43This isn't the first time that he's done it, and it won't be the last. He's also publicly very appreciative of the Supreme Court when there's decisions that he very much agrees with. That's what a democracy is about. Blanche, they're defending the president somewhat, it sounds like, haltingly at times. I think he understands how remarkable some of the things that Trump said about the Supreme Court are. But his larger point, I mean, he's the attorney general, that they're going to keep investigating, keep prosecuting fraud. And they certainly can keep trying to do that, whether they come up with evidence of fraud in 2020 or fraud in the midterm elections.

21:16That remains to be seen. But but nothing about this Supreme Court decision would keep them from continuing to investigate. It's just setting up new systems to handle balloting that the court has said they can't do right now. Now, there are lots of Trump critics who would tell you this sits with a whole range of other measures that they're worried will have an impact on the midterm elections and presidential elections going forward, that there's a chilling effect across the board where you have already sowed the doubt about fraud in elections, particularly with mail-in ballots, but also insisting that there are lots and lots of non-citizens, illegal immigrants, essentially on the ballot who shouldn't be allowed to be there.

21:58Therefore, you can't trust the results. And they would point to things like ICE being on the streets of American cities, being very rough with the way they've been handling detainees and protesters having a sort of chilling effect as well. And there's a concern about whether or not you're going to see heavy amounts of law enforcement on the streets, whether maybe people who had newly become citizens. They were perfectly entitled to vote, but might be nervous about turning up at a polling station if they thought there was going to be a lot of ICE agents or Department of Homeland Security agents there checking on people's citizenship or something like that.

22:33And we got into a bit of this in the Senate yesterday, didn't we? Yeah. Kash Patel, the director of the Federal Bureau of Investigations, was testifying before the Senate. He was asked by Vermont Senator Peter Welch about this, about whether there would be FBI agents on the scene at polling places. And Patel was pretty direct in saying, yes, there would be. We have an election crimes community coordinator in all 56 field office. So you bet we're going to have them there and manning the post for election interference matters. I thought you weren't going to be sending people to the polls. When did you hear that?

23:06It's just another lie. When you answered Mr. Blumenthal. Nope. So you are sending, you are sending the polls. We have election crisis coordinators manned at all 56 field offices. Election integrity is of paramount importance. This FBI is not going to shy away from that effort. Do you pledge that you will not in any way interfere in the will of the American people when they go to the polls in November? I pledge unequivocally that I will not participate in your charade of lies. Then why are you being such a panderer to President Trump, who's still claiming that he won the 2020 election and who has said the only way Democrats can win in 2026 is if they cheat?

23:54Do you believe that? What I believe in is the rule of law. What I will always believe in is executing the rule of law. Are you done with your campaign ad? Yes, you can hear how controversial an idea that is. There are rules, Anthony, are there not, about how close to polling stations either law enforcement or protesters or other citizens can be. Yeah. And people who are working for the campaign. So if you go to an American polling place, they have kind of a boundary and there's no electioneering that is supposed to happen within that boundary. You're not allowed to hand out pamphlets when you're super close to the polling stations.

24:28Law enforcement is not supposed to be in there except for an emergency. But we'll see how much they push the boundaries of this. If you have INS agents, ICE agents, they're in a show of force. Like you said, we have seen American citizens detained by ICE agents around this country because of suspicion that they are undocumented migrants. And that could have a chilling effect. And I think the Democrats, we've heard from Democrats saying that they are very concerned about the effect this would have. And on the flip side, you hear people like Hash Patel and Donald Trump say that, no, they are just doing this in order to make sure that no non-citizens are going to be able to cast ballots.