Trump Loses on Mail Ballots & Kennedy Center

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1:27Richard Briffault:That's unstoppable energy.

1:33Richard Briffault:This is Bloomberg Law with June Grosso from Bloomberg Radio. The Supreme Court has refused to allow the Postal Service to enforce new restrictions on mail-in ballots for the midterms. The justice's decision on Monday night came after North Carolina and Alabama already began mailing thousands of ballots to voters, and after election officials warned that late-breaking changes would inject chaos into the elections. The court held that the Trump administration was unlikely to win the merits of its challenge to a lower court's injunction, and that officials failed to show they had a stronger case for immediately reviving the rules ahead of the midterms.

2:19It was a brief unsigned order, with Justice Brett Kavanaugh writing a concurrence and Justices Samuel Alito and Clarence Thomas dissenting. President Donald Trump denounced the decision in a social media post, calling it a horrible, highly political ruling, but praising Alito and Thomas as legends. My guest is an expert in election law, Richard Rafald, a professor at Columbia Law School. So this is an unsigned three-sentence order. Tell us what the justices decided.

2:54Richard Briffault:The majority rejected the government's effort to lift the stay that the district court in Massachusetts had imposed on the postal services implementing its new mail ballot regulation. As you know, driven by the president, the Postal Service has proposed to adopt new and very restrictive rules, very burdensome rules on the use of mail-in ballots that were supposed to take effect for this current midterm election. Various groups of states and voting groups, including the League of Women Voters, tried to block that process. The Supreme Court ultimately said they came too early. The Postal Service should be allowed to finish its rulemaking.

3:35Richard Briffault:As soon as they issued the rule, the same groups went back to court. The district court in Massachusetts issued a first-day temporary restraining order and then a preliminary injunction, which was sustained by the First Circuit, the appeals court that oversees Massachusetts. It's partly on the theory that they're really on the merits. The law could not be sustained, that it was inconsistent. It was really beyond the authority of the Postal Service to do anything like this. And also on the equities, on the fairness, that it's so close to the election that it would be highly unlikely the Postal Service could effectively and efficiently implement this rule in less than 60 days before the election.

4:16Richard Briffault:And as a result, it would result in the denial of the vote to potentially millions of people. And so that's where things stood. The administration brought this matter to the Supreme Court last week, I think right after, right around Labor Day. The court's order basically very briefly said deny the administration's effort to undo the stay in a brief, very short opinion, but in a brief phrase of the court's opinion suggesting that they thought that even on the merits, the government would lose. They didn't give a reason. They didn't give a justification. They didn't say whether it was a statutory problem or an administrative procedure problem or a constitutional problem, all of which had been raised in the litigation.

4:58Richard Briffault:Arguments had been raised that the Postal Service didn't go through a proper process, that it was beyond the scope of its authority under the statutes, and that as a matter of federalism and of the right to vote, this would be unconstitutional. Basically, three different levels of arguments have been raised. The courts just said that on the merits, the case against it was strong, but that in any event, as a matter of equity, given the closeness to the election, they would not lift the stay. There was a brief concurring opinion by Justice Kavanaugh saying he thought there was a plausible case on the merits for the Postal Service rule, but that he agreed that it would be, in his language, arbitrary and capricious to allow that rule to go forward, given that it's so close to the election.

5:40I was surprised that there was any dissent. The states said that they couldn't get this done in time, and ballots have already gone out in two states.

5:49Richard Briffault:It just shows you how in the tank for the Trump administration, Alito and Thomas are. I agree with you. There was both on the merits and Kavanaugh's focus on the equities. It would be impossible. Alito had a kind of a snarking line that the reason it would be so hard is because the states had fought this for so long that it delayed the Postal Service's ability to get the rule out. But as some of the briefing noted on this matter, the Postal Service still has not opened the portal that it would be necessary for the states to send their ballots or their ballot envelopes to, which the Postal Service said we would have to review what you're doing before we can handle them.

6:27Richard Briffault:They hadn't even opened the portal that would allow them to do that reviewing. So as of, I mean, now there's no rush, but as of close of business yesterday, at that point, we were within, what, seven weeks of the election? It would have been impossible. And indeed, some of the states had already begun to send their ballots out. And if the Supreme Court had decided this issue on the merits when it first came to them, instead of taking the off-ramp of a procedural issue, it wouldn't be this late. Alito also blamed the Supreme Court for taking so long on the earlier case. I mean, I think he was digging at his colleagues for taking until late August to dismissing the challenge by the states opposed to this.

7:10Richard Briffault:And so he basically says the court wasn't responsible for this and the states were responsible. And it was a kind of that still doesn't get around the fact that it would have been impossible for this for the states to comply. And millions of voters would have been unable to vote by mail. Millions of registered lawful citizen voters would have been unable to vote. So it's really quite a kind of a shocking opinion. And this isn't the end. This is going back to a lower court. I think it's the end for 2026. Basically, I think there's no way that the new postal regulations can be in effect for 2026.

7:44Richard Briffault:It is not the end of a proposal. My guess is there will need to be a full-fledged trial now. I mean, all of these, all of the action until now has been on an emergency basis. I think that there will need to be a full-fledged trial going forward. I mean, on the assumption that now the Postal Service in the states would have until basically until 2028. Although, I mean, it's not just for federal elections. I think. So presumably there'll be elections in 2020, but it'll have some time. And then presumably this may be back in the Supreme Court on the merits, although the court signaled it was very brief, but they seem to signal on the merits, although without saying what about the merits, they found troublesome.

8:24Richard Briffault:They seem to signal on the merits that they were not likely to support this, but you don't know. There's at least three justices who have a signal they are willing to support some kind of Postal Service regulation. And we don't know of the six who did not write, how many of them would be willing to go forward if there was more time. We just don't know that. You know, the signaling support for the Postal Service, how did they get around the constitutional provisions about elections and allowing the Postal Service to impose these rules? You know, there are a bunch of questions. And, you know, one question is, are these election rules or postal rules.

9:02Richard Briffault:I mean, I think these are clearly going to impact how an election is run, but one argument might be they're postal service rules. A second question that was relevant to this and Alito spent some time on is, you know, what's the procedural vehicle for challenging this? Because the postal service is, for the most part, is not under the Administrative Procedure Act. The Postal Reorganization Law provided special procedures for challenging new postal rules and going through a postal regulatory commission, which was sidestepped in all this because Judge Talwani in Massachusetts basically said this was so beyond the scope of what the postal service is allowed to do.

9:38Richard Briffault:It was ultra-virus, totally outside their authority, that the courts could hear that. Alito basically said, we hardly ever do that. And that was a good part of his argument was that this was kind of procedurally irregular. That question may get more attention later. But I think a lot of this has gone very quickly. And I do think now we'll have a slower, more deliberate rule. I mean, there's, you know, I think there's a serious question before we even get to the constitutional question of the federal government of the states is whether this falls within the Congress's grant of authority. I mean, Congress does have the power under the elections clause of the Constitution to change the rules, to write the rules for how federal elections are run, not state elections, but federal elections in Iran.

10:19Richard Briffault:And Congress could authorize something like this. And since the SAVE Act, which didn't pass, would have done something like that, that would have been the way to do this. The question is, has Congress given the Postal Service the authority to do this? And that just strikes me, if there was ever a use for the major questions doctrine, that's this. But in any event, the legislation that the Postal Service has been given to write rules for mail, for carrying mail, I think that there's just no basis in their current authority. So I think, you know, if you look at it, I think before we even get to the constitutional question, I think the statutory question is really real and would have to ultimately be addressed by the Supreme Court, which is maybe they were hinting at that.

11:01Richard Briffault:Maybe they were hinting at problems with the process by which the Postal Service did this. It was very cryptic, but it did use the word, you know, merits, as well as the timing issue in terms of rejecting the Postal service rule. So many times on the shadow docket, you get brief opinions or no opinions. But here, why do you think they didn't give a more fulsome explanation? Could there be justices besides the three that we know about who have problems with the challenger's position here? It's certainly possible. It's certainly possible. And also, you know, as a matter of kind of small-sea judicial conservatism.

11:38Richard Briffault:There are hard issues there. And I think a full-fledged opinion would have taken longer. And I think it was important to resolve this issue as quickly as possible. Once we got past Labor Day, it seemed just incredibly unlikely that they would allow this rule to go forward this year. Just the timing issues were in Super Bowl. And I think even you see that in Kavanaugh's opinion. But, you know, although I think many of us think that the case against Postal Service intervention here is incredibly strong, you know, there are arguments on the other side that the government was raising. And we may ultimately get a full-fledged opinion on this in another year.

12:14Richard Briffault:But, you know, there's very little case law on the powers of the Postal Service and on its rulemaking authority. It's also possible, you know, even if the Democrats do well in the elections, wouldn't I imagine Congress trying to adopt legislation barring this rule, Although it's unlikely to get past the precedent. But yeah, I think the arguments that the Postal Service just lacks statutory authority for this are just really powerful and probably need to be more fully addressed than in a quick opinion. I think the court was right to try and get this out and done as fast as possible. And now that this is over, we wait for the next election controversy.

12:49Thanks so much, Rich. That's Professor Richard Brafalt of Columbia Law School. Coming up next on the Bloomberg Law Show, President Trump threatens to stop efforts to repair the Kennedy Center unless his name is added to the building. I'm June Grosso, and you're listening to Bloomberg. 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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15:53President Trump's fight to get his name on the Kennedy Center continued today in court and at a meeting of the center's board of directors. This afternoon, a federal judge ruled for a second time that Trump's name cannot be added to the building, rebuking the board of directors for trying to circumvent an earlier order. Federal Judge Christopher Cooper said, simply put, the board cannot install memorials for President Trump or anyone or anything else at the Kennedy Center without Congress's blessing. After the judge's decision, the board, which was handpicked by Trump, voted to close the Kennedy Center for renovations.

16:37But Trump posted that the Justice Department will appeal the decision and, quote, If the ruling is a negative one, which it should not be, and is not overturned by the U.S. Supreme Court, the reconstruction and the renovation of the Kennedy Center will not take place. Joining me is Bloomberg Law reporter Suzanne Moniak, who has been covering the Kennedy Center controversy since the beginning. Start with what is the state of play right now. Tell us what the latest is on the Kennedy Center.

17:09Suzanne Monyak:The latest is that the Kennedy Center's board, whose members have been handpicked by President Donald Trump, are not going to be allowed to put his name back on the exterior of the building. This is the second attempt that they've made to do this. The first was to rename the center for him. This is now a stated effort to acknowledge Trump's contributions to the performing arts venue. But again, they'd wanted to acknowledge it in lettering on the outside of the building. And a judge today has said, no, they cannot do that. The board had suggested various phrases that could be used to show Trump's contribution to the Kennedy Center.

17:45And the judge just said that no way, there's no way that he's going to be allowed to add his name to the building.

17:53Suzanne Monyak:That's right. Judge Casey Cooper here in D.C. made clear that the federal law that created the Kennedy Center as a memorial to assassinated President John F. Kennedy, It does not allow the building to have any other public memorials for other people. So not only can it not be fully renamed, there can't be any other memorial for a different person as part of the institution. They also wanted to rename the plaza there for Trump. That's right. There were a couple of different pieces to the attempted renaming. On this latest attempt, they had wanted to say that essentially introduced some kind of recognition of, you know, Trump's contributions to renovations in the building.

18:33Suzanne Monyak:They had also wanted to add a second line once they reached a hundred million dollar fundraising goal, indicating that it was endowed by the Trump Kennedy Fund. And thirdly, they wanted to rename the grounds of the Kennedy Center facility, the Donald J. Trump Plaza. And so what happened here today is that the D.C. judge blocked one in three of those. Number two, acknowledging a fundraising goal in the future from the endowment, he's not ruled on yet. But only because he said that that issue is premature right now, given that zero dollars have been raised, according to the government's representations in court.

19:09Suzanne Monyak:So that may be decided at a later date. I wouldn't expect the judge to necessarily allow it. He already indicated that he saw it as legally dubious in today's decision. What does the board say the state of the Kennedy Center is? The board has said that the Kennedy Center is currently headed toward certain fiscal collapse, quote, and materials circulated ahead of a meeting that happened today as well after today's court decision. And the facility has not been having performances ahead of an anticipated closure of the center for renovations. And that's because the Kennedy Center's board has now been voting kind of separate but related to the renaming attempts.

19:45Suzanne Monyak:The board is also trying to close the facility for two years for what they're saying are needed repairs for the safety of the facility. Judge Cooper here in D.C. has previously blocked the board from closing the facility after finding that a vote earlier this year that the board just didn't rely on enough information, that they relied on a one sided presentation. And so he blocked the outcome of that vote trying to close the facility. But the board voted again in August to do so and again today. So the next steps on that aspect of the case are that the government's going to be moving to undo that part of the court's earlier ruling blocking the closure so they can close it again.

20:21Suzanne Monyak:So, you know, we'll see further proceedings on that issue, too. And how many times has the judge said they couldn't close it? In May, the judge said issued a temporary order saying that they can't close it. But he did very explicitly leave room in that decision for the board to come back to consider maybe a more fulsome presentation of information. And should they decide to close it again, they could come back to court. And so that's where we're at now. They have decided to close it again based on what they will, I'm sure, represent is a more fulsome amount of information. We haven't heard from the plaintiffs yet.

20:51Suzanne Monyak:That's Representative Joyce Beatty, a Democratic congresswoman from Ohio, who's an ex officio trustee of the Kennedy Center. But I wouldn't be surprised if we were to hear that the challengers are, again, arguing that they see this as pretextual. Again, that was indicated at today's hearing. Before today, there was a threat that if they didn't allow his name to be on the building, that he wouldn't help with fundraising efforts. There's been a few threats of those kind regarding the impact of not allowing Trump to put his name on the building. Essentially, the position of the Kennedy Center Board has been that it's necessary, you know, Trump's prestige and his prominence is required for the building to be able to fundraise and without his help, they'll never be able to avoid financial insolvency.

21:38Suzanne Monyak:Latest in court, we saw a warning that perhaps the Kennedy Center could be headed toward bankruptcy and that having Trump's name would be enough to save it because Trump would be unlikely to do so if he were not appropriately recognized. This actually came up at today's court hearing. The judge asked the Justice Department lawyer point blank, can a public charitable trust like the Kennedy Center actually declare bankruptcy. And the government lawyer replied that he was not prepared to answer that question. So unclear if that is actually going to be happening. But certainly there is concern raised by the Kennedy Center board about the institution's finances.

22:16Suzanne Monyak:And of course, as we discussed, they haven't been holding performances for a long time. And so those concerns, you know, may not be unfounded. I mean, did the judge bring up the fact that the reason the Kennedy Center is in this situation is because Trump took it over and suddenly artists didn't want to appear there and lots of people didn't want to go there. That's certainly the challenger's position, that this is a self-inflicted injury and that, you know, they've argued that the Kennedy Center's board, which is led by President Donald Trump as the chair, that they have been the ones to be driving this institution into the ground.

22:47Suzanne Monyak:The board sees it differently. The judge himself isn't one to show too many of his cards at these hearings. So we've yet to hear from the judge explicitly on that one. So when they say they want to close the Kennedy Center, is it for renovations or just to sit there? Well, no, they have said that they want to close it for renovations. They've made the case that they believe that closing it is necessary for full renovations to be done safely. That's sort of what's at dispute here on the closure vote back earlier this year. The judge had found when they voted at the beginning of the year to close it for renovations that they just really hadn't considered other options, like say partially closing it during repairs.

23:25Suzanne Monyak:Maybe you do repairs on part of the building and keep the other half open, or what if we only closed it for a shorter period of time for certain repairs? Just other options that one could do outside of a full-scale two-year closure. So in theory, they are supposed to have considered those other options now for this latest vote. And I believe that they said they had. They've brought on a third-party consulting group and submitted some reports on that. The other side here, lawyers for Representative Beatty have disputed some of that evidence, and they're really pushing to see more discovery in this case because they want to see, you know, just like more information on what the board is relying on to make these representations.