Trump Blocked 7-2 by Supreme Court in Bid to Use Post Office to Deny Delivery of Mail-In Ballots

0:00We got some breaking news.

0:01Michael Popok:Your and my mail-in ballot and absentee ballots are saved from the clutches of Donald Trump, at least for the midterms, by a late night ruling by the United States Supreme Court in which it has effectively said they are not going to block a federal judge in Boston's universal nationwide injunction that stops the Postal Service from both creating and using a citizenship check portal. with data provided by the states and use certain types of envelopes all by the midterms or beyond. They are not, at least for now, for the midterms, they are not going to block Judge Talwani. Her preliminary injunction is the law of the land, according to the Supreme Court.

0:46Michael Popok:Now, I'd like to report that this was a 7-2 decision with only two in dissent in Alito and Thomas. I'd like to report that, but it's really closer to a six to three decision with Kavanaugh, who's always the great concur. You know, he never can just join the majority. He just has to always stand off on the side and come up with his own rationale. He didn't have a problem with the post office taking control and creating a citizenship data portal. That's not in the Constitution nor in congressional law for them to do that. He's not troubled by them rejecting ballots before they're delivered to voters.

1:23Michael Popok:He just thought it was too close in time to change the rules because we're coming up to the midterms in like 49 days. So I'm going to, towards the middle and back of this video, I'll tell you why the 7-2 versus 6-3 matters for the 2028 election. Okay, let's get to the new ruling. I'll put it up on Substack for all to review. you're on Legal AF YouTube channel, by the way. We're just two days away, two days away from both our birthday on the 17th of September and it's also Constitution Day, the day the Constitution was signed in Philadelphia in 1787. Right. We should share a birthday with the Constitution on Legal AF YouTube channel.

2:08Michael Popok:And to celebrate all that, hit the free subscribe button. Okay. It's a one paragraph ruling, folks. It's not signed, but we know the math because we see who voted in dissent, who voted in concurrence, so therefore the rest is the majority. Here's the ruling. The application for stay presented to Justice Jackson, because she sits over the First Circuit Court of Appeals in Boston, and by her referred to the court is denied. That was an application to block Judge Talwani's nationwide injunction. The government is unlikely to succeed on the merits of its challenge to the district court's preliminary injunction.

2:43Michael Popok:They go right to the merits. Her ruling that there is no constitutional or statutory provision or allowance for the post office to get involved with mail-in ballots and do anything but just deliver the mail. And the order continues, and the equitable factors of applicable for obtaining emergency relief, there are four factors to get emergency relief. You've got to show likelihood of success in the merits. You've got to show that inadequate remedy at law. You've got to show irreparable harm and the balance of equities tips in your favor. First among them being likelihood of success on the merits.

3:22Michael Popok:Those equitable factors do not favor a stay, period. Who joined in that? It's Chief Justice Roberts, Amy Coney Barrett, Neil Gorsuch from the right wing. then Ketanji Brown-Jackson, Sotomayor, and Kagan. That's the six. Seven if you add Kavanaugh, who agreed with the result but not for the rationale. That's the seven to two. Now I'll tell you why it's really six to three. When I say six to three, it means there's at least six votes, I think, that will also find when this comes back up to them through a proper appellate route, they will find that they can't use the Postal Service and this rule for the 2028 election either.

4:15Not just the timing issue, not just the too close to the election issue, but a fundamental lack of congressional law or constitutional law to support the Postal Service's takeover of mail-in ballots. I think there's six votes for that. Gorsuch, Amy Coney Barrett, Roberts, and then the Liberal Wing. There's seven votes to do it now. There's six votes, I think, to do it into the future through the 2028 elections, to answer that question. There's obviously three who are not, who are okay with the post office hijacking your election. Alito, Thomas, and Kavanaugh. I'd like to say, when is Alito and Thomas going to retire?

5:01But they're going to retire. They're just going to put younger versions of Alito and Thomas in their place. So that's not great either. I'd rather them just ride it out, cling to the position, get past the Trump administration, and see if there's some openings for the next president to fill. Let's start with Kavanaugh's concurrence.

5:18Michael Popok:He's become the great concur. Kavanaugh, similar to what he did in the birthright citizenship case where he voted with the majority to find that Donald Trump's executive order couldn't deny birthright citizenship. But he didn't find that because the 14th Amendment of the Constitution created birthright citizenship. He said, no, no, no, it's not that, which is what the others said. It is the, there's a law in the books that Congress can change, but there's a law in the books, the Nationality Act, that gives citizenship to babies born on U.S. soil. So everybody got excited. It was like, oh, it's a six to three decision.

5:56Michael Popok:Six people believe in the 14th Amendment. No, it was a five to four decision. Five people believed in the Constitution and four didn't, which included Gorsuch, Kavanaugh, Alito, and Thomas. Again, Amy Coney Barrett and Roberts siding with the liberal wing. Amy Coney Barrett, side note, it's becoming the Amy Coney Barrett court, which we predicted two years ago, that even though she's right right of center, she's holding this court together by citing every time she rules, that ends up being the majority opinion on many cases involving the Trump administration. Here's what Kavanaugh now says about the post office hijacking by creating rules and regulations about mail envelopes, which I don't really have that big of a deal of, like how things get scanned.

6:45It's the citizenship portal that matters. Where do they get off telling the states who gets to vote? Here's how Kavanaugh put it. In my view, there is at least a fair prospect that the final rule falls within the Postal Service's statutory authority. But that includes building a citizenship portal with citizenship data compelled from the states? Where is that in the Constitution? Where's the power of the post office? But applying the rule in the 2026 elections would be arbitrary and capricious in violation of the Administrative Procedures Act because state and local officials do not have sufficient time to implement the rule before the elections.

7:25So you see where his vote would be if there was more time. Turning to the dissent written by Alito and joined by Thomas, and Kavanaugh probably would have joined it too. It was pretty close, it looks like. Like, there they just sort of gloss over the portal, the citizenship portal.

7:43Michael Popok:They make it all about envelopes. It's interior design. It's just what the envelopes look like. What's the big deal?

7:52So it says, in late August, this is on page two of the dissent, the Postal Service promulgated a final rule.

8:02Michael Popok:The rule requires federal ballot mail to be sent in envelopes with three special features. See, he focuses on the envelope design, an election mail logo, the ability to be scanned using high-speed processing equipment, and a specialized barcode. I'm okay with the barcode. Most states use a barcode. States must design the envelopes that adhere to these requirements. Finally, states must upload basic information about the voter to a postal service portal. Look how he glosses over the record. We know from a whistleblower the postal service portal has never been used before. It's untested. It's not even finished.

8:40Michael Popok:The postal workers don't know how to use it. The data is already infected with error because it's coming from states who have to constantly update the voter roll. How are they going to update the portal? It's not a static population set. And so, but he just glosses it over like it's like, yeah, it's totally normal for the executive branch to require citizenship data through the post office. See, Donald Trump's been trying to get voter data any way he can. There's separate litigation over the Department of Homeland Security creating a citizenship voter database. that's separate from this post office database.

9:18But you see how they just glide right over it with a one-liner because, you know, they don't want facts to get in the way of a good narrative, a good dissent. And then they talk about why the states don't have the ability to challenge, that they'd have to show that this was ultra-various outside of postal services functions. And they think setting up a citizenship portal and double-checking the states is completely fine. Of course, nobody else feels that way. So what's going to happen next, folks? Judge Talwani's injunction is in place. Separately, a judge in D.C. on behalf of the NAACP and the Democratic Party and other groups named Judge Nichols, who's a Trump-appointed judge, also issued in the last two days an injunction.

10:03I don't believe his is nationwide. You got double injunctions. Talwanis will continue through the First Circuit Court of Appeals. I assure you they're going to support her. Judge Nichols will continue on appeal by Trump to the D.C. Appellate Court, Federal Appellate Court. And then somebody's going to take an appeal before the 2028 election. And it's going to go back to the United States Supreme Court. And we're going to see if this seven to two, six to three analysis that I just went through holds about are there six votes, at least five, to stop Donald Trump's takeover of mail-in and absentee ballots for the 2028 election.

10:48Programming note, I've got Kristen Clark, who is the general counsel for the NAACP coming on with me in the next day to talk about the impact of mail-in balloting and beyond of this new order. She used to be the head of the Civil Rights Division for the Department of Justice. Separately, I've got a series of Democratic attorneys general who are going to be joining to talk about their win here at the United States Supreme Court. And then I've got Senator Adam Schiff joining fresh off a grilling of FBI Director Cash Patel, which is up on Legal AF YouTube today, right now. Go over to the live tab.

11:27You'll find our live presentation of Kash Patel's grilling at the Senate Judiciary Committee. After that, I will have Senator Schiff to talk about those results. If you like that kind of content, you like what we do here on Legal AF, hit the free subscribe button. Boom, done, move on. Come over to Legal AF Substack where paid members can read this result for themselves. until my next result. And countdown to the birthday for Legal AF. I'm Michael Popok.

11:56Michael Popok:Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well. We got some new reporting. We got interviews. We got ad free versions of the podcast and hot takes where legal AF on Substack. Come over now to free subscribe.