Messy Fight Over Mail Voting

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2:12Richard Briffault:This is Bloomberg Law with June Grosso from Bloomberg Radio. Nearly one in three voters across the country votes by mail. But President Donald Trump has been railing against mail-in voting for years, saying without proof that it leads to fraud. Mail-in ballots are corrupt. mail-in ballots, you can never have a real democracy with mail-in ballots. And we, as a Republican Party, are going to do everything possible that we get rid of mail-in ballots. Well, now the Supreme Court's six Republican appointees have given Trump a win on his executive order restricting mail voting. They didn't find it legal, but they didn't find it illegal either.

3:01Instead, they kicked the can down the road and allowed Trump to go forward with using the Postal Service to limit the distribution of mail ballots in the November midterms. A renewed challenge to the executive order is almost certain in the coming days, and time is running out to make any changes in the nation's voting procedures. Joining me is an expert in elections law, Professor Richard Ruffalt of Columbia Law School. Rich, what does this decision signify? I mean, what does it actually mean?

3:35Richard Briffault:That's actually hard to decide. It could be a little or it could be a lot, frankly. The court basically overturned a lower court order staying the president's executive order, directing the Postal Service to come up with new rules and restrictions on mail-in ballots, and also directing the Department of Homeland Security to come up with a list of U.S. citizens eligible to vote. All the court did was say that the lower court's action was premature. The lawsuit was brought by 23 states and the District of Columbia saying that in order to comply with any new rule governing mail ballots, they would have to start spending money and start preparing, and that would be expensive and burdensome to them.

4:23Richard Briffault:And so they had a right to sue. The lower court agreed with that. As to the Court of Appeals, the Supreme Court said, no, that's not right. It's not right. That is, it's not clear whether or not the Postal Service would issue an order and what the order would do. Ironically, Friday night, the Postal Service actually issued that order, issued a final rule which would impose all sorts of new requirements on state mail-in ballots. But the Supreme Court on Monday, following the Friday ruling by the Postal Service, said the original suit nonetheless was not right because it was speculative. It wasn't clear what the Postal Service would do.

5:00Richard Briffault:The suit was targeted at the executive order, which only was telling the Postal Service to do something. There was no Postal Service ruling to challenge. So the Supreme Court basically eliminated the injunction that the 23 states in D.C. had obtained against the Postal Service from implementing the executive order. There is, however, a separate case in which there's also an injunction that was brought by the League of Women Voters on behalf of voters who'd be impacted by this, which actually would affect all 50 states. That injunction is still in place, at least it was as of first thing this morning.

5:34Richard Briffault:And in any event, now that the Postal Service has issued what's called a final rule, presumably all the parties will be back in court, including the legal women voters in the ACLU, which still have the other injunction, and try and convert the injunction against implementing a rule to an injunction against the rule itself. And so that's where we are. The Supreme Court basically said this matter of standing the state sued too soon. It was a six to three decision, as so many of them are. The majority was very clear to say that this is not a ruling on the merits of any postal service requirements on mail ballots.

6:12Richard Briffault:Literally, the opinion says time will tell. This is a victory for the Trump administration in that they are allowed to go forward and put out there a rule. But it just really kicks the can down the road in terms of whether and when we will get a ruling on the validity of the Postal Service's rule, which will impose new requirements and limitations on state mail-in ballots. Why even issue that opinion? And why not say, you know, under the Constitution, states and Congress determine voting procedures, not the White House or a federal agency like the post office? I mean, isn't that a glaring problem here?

6:55Richard Briffault:I mean, the why is an unanswerable question. I mean, again, technically, technically, technically, the court is dealing almost with a matter of civil procedure, of the timing by the states or the timing of any plaintiff when they want to challenge a presidential order. And the opinion is written solely in terms of the timing of the suit. And as we know, in many cases, the Supreme Court has sometimes said that suits are brought too late if something is too close to an election. This time, the Supreme Court has said the suit was brought too early. Well, it is now timely. And now that the Postal Service has issued its final rule on what the envelope should look like, the existence of barcodes and potentially, you know, who can receive these mail-in ballots.

7:39Richard Briffault:Now that there is actually a final rule, presumably the problem of rightness or standing goes away. And presumably there'll be a lower court decision pretty quickly. And this will probably move through the court system pretty quickly. And my guess is, well, who knows? I mean, oddly, this case actually sat in the Supreme Court for almost a month. The lower court's injunction was issued some time ago. The Court of Appeals sustained it. Justice Department brought their appeal to the Supreme Court in late July for more than three weeks. Now we are roughly 70 days from Election Day. By my count, it's probably 10 weeks.

8:18Richard Briffault:It will be extremely burdensome, if even possible, for the states to comply. Some states start mailing out their mail-in ballots right after Labor Day. There's also the federal law dealing with uniformed and overseas voters, servicemen and women who are stationed overseas who have to get their ballots by mid-September, by 45 days before the election. So the timing is very, very tight. Leaving aside the merits of where does the Postal Service get the power, the authority to do this. You know, it is a victory for the Trump administration. It does move them one step closer to being able to regulate mail-in ballots, but it's only one step, and it's a relatively small step.

9:02Richard Briffault:The big steps are ahead of us. Is it suspicious that they waited so long to issue this decision that just kicks it down the road? In her dissent, Katanji Brown-Jackson warned that the administration might be trying to game the system. I don't know if it's suspicious. It's weird. It's almost like, why are they even bothering now that there's a rule out there? I mean, I think what many scholars and observers are concerned about is a kind of a catch-22 happening, that the Supreme Court says it was too early for the states to sue because it wasn't clear that it was going to be a rule. And now that there is a rule, it's too late.

9:38Richard Briffault:Invoking something that was the Purcell principle, which is that federal courts don't get involved in challenges to election rules when it's too close to an election. And that would be the ultimate irony here is if it was too soon to sue before August 22nd and too late to sue afterwards. But hopefully we will not be in that situation. I mean, one argument that the plaintiffs will now have, and it's going to be both states and I think voting rights organizations, is that given the court's decision yesterday, they could not have sued any earlier. So at least there's no argument that they delayed.

10:15Richard Briffault:Sometimes the concern when suits are brought close to an election is that the plaintiffs waited too long. That's often not the case, but that's the argument that sometimes has been raised by the courts. Here, you couldn't possibly make that argument. Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work. It's designed to help you move from a chaotic starting point to a reviewable first version.

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12:52Richard Briffault:I think it's quite possible. I think for them, the question is going to have to be, what is the authority that the Postal Service has to regulate who the states can mail in ballots to. Some of it is there are new requirements as to what the envelopes have to look like and to have barcodes. And there, I mean, to what extent can they regulate the ballots, the ballot format that the states use? And to what extent does the Postal Service have legal authority to do that? And the briefs, the Justice Department sort of said that the Postal Service has imposed special envelopes for the mailing of, and get this, human and animal cremains.

13:33Richard Briffault:They're ever being shipped. There are special requirements for that and for things known as inert or replica explosives. And the idea that a ballot presents the same kinds of issues as human and animal cremains or remains and inert explosives is kind of mind-boggling. I mean, in some ways, I think the question they're going to have to face first is, does the Postal Service have the authority to do any of this? And then we're getting into the burdensomeness and the timing of it. I mean, you know, whether there's fraud or not, it sort of goes back to, in some ways, one of the issues with respect to birthright citizenship, and at the very least, Justice Kavanaugh's concurring opinion that whether or not the Constitution is relevant here, the president didn't have the authority to do this by executive order.

14:19Richard Briffault:At the very least, the court would have to look at what is the authority of the Postal Service has to adopt rules like this. Then we get into the constitutional questions of to what extent does that interfere with the state's constitutional role in running elections? And beyond that, to what extent, given the timing, is this going to interfere with the rights of voters to be able to cast ballots under state law? So there's a whole lot of questions that are going to have to be addressed. And this opinion touches on none of that. We've talked so many times about, you know, how much time it takes the states to get things going for elections.

14:52And it just seems like there is no possible way there is enough time to revamp the procedures in time for the midterms. It seems like it's going to just cause incredible chaos. It just seems...

15:07Richard Briffault:In some ways, it's actually worse than that, because the states are significant actors. It's local governments that actually do most of this, city and county boards of elections. There's thousands of them across the country with totally different levels of resources and funding. If they're going to have to start creating special envelopes and compiling certain lists and doing things at this late stage, it's going to be very difficult. I mean, a state might be able to do this, but the elections at the granular level are really being run by county and city boards of elections. And for some of them, for smaller ones, it's going to be incredibly burdensome.

15:44Richard Briffault:I mean, it's hard to imagine that it's actually doable at this late stage. So, Rich, part of this is that the Department of Homeland Security is now going to compile a list of citizens in each state who can vote. But the Justice Department has actually been suing the states to try to get their voter rolls. Where is DHS going to get the names for its list of citizens? This seems like another dangerous area. How are they going to form that list? Right. There is no central list of citizens and they will look to various sources, but there are errors and inconsistencies in all the sources and you have to put them all together.

16:27Richard Briffault:It's also a moving target. I mean, people become naturalized every day. New people become citizens and people move. And in many states, you are eligible to register to vote up to 30 days before the election. And a few states don't have registration requirements at all or have same day registration. So although the idea here is to have something 60 days, there'll be new people eligible almost every day. And once you're registered, you should be entitled to vote by mail if the state allows it. So it's just hard to see how this works, even if it's constitutional or even if there's a statutory authorization, which I've got my doubts about.

17:07Richard Briffault:It's just hard to see how this is going to work in practice and certainly how it's going to work this time. And it's conceivable that if this all goes forward, maybe something could be worked out a year from now. I mean, remember, people think in terms of 26 and 28, but of course, there are elections all the time. There are special elections, you know, there are vacancy elections. You know, it's just hard to see how this can get done in any reasonable amount of time. But also, this means if you do it from the executive branch in the Postal Service, another president comes in and says, I don't want to do it that way.

17:39I'm going to issue an executive order that we do it this way.

17:42Richard Briffault:I mean, that's another possibility is to, right. President was trying to get the SAVE Act passed and never got passed. And he's treating this as an end run around Congress. It's not clear he can do that. I mean, voting is largely a state run matter, but also these issues are big enough that they seem to be major questions that ought to be resolved by Congress first and not just by a president. As you point out, one president could do it one way, another president could do it another way. this is a big deal and it should get the buy-in of Congress, which it has not gotten. Presumably, this will quickly flip over into a direct challenge to the Postal Service rule.

18:18Richard Briffault:I'm sure, I mean, that this will very, very, very quickly turn into a case on the merits. I mean, the Justice Department was not litigating this on the merits. The brief in the Supreme Court was mostly on rightness and standing. So we don't really have a ruling on the merits of the legality and the constitutionality of the personal service. This may change by the minute. Thanks so much, Rich. That's Professor Richard Brafald of Columbia Law School. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law.

19:02And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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