| This week, the Supreme Court may finally resolve the Trump administration’s effort to restrict mail-in balloting throughout the country — and potentially disenfranchise millions of voters — ahead of the midterm elections in November. |
| Over the weekend — after months of legal wrangling and challenges going up, down, and back around the court system — the Trump administration filed its latest emergency application with the Supreme Court to clear the way for the implementation of a Postal Service rule that would impose a host of new requirements on the states, including envelope design and marking standards and a mandate to clear voter lists with the federal government through an online portal that does not even exist yet. The Court directed plaintiffs to file responses by late Wednesday afternoon, and a decision could come within days. |
| This should be an easy case, but at this point there is no way to predict with certainty how the Supreme Court’s 6-3 conservative supermajority will rule. |
| With few exceptions, this is a group of justices that has largely given Trump what he wants even when it requires extraordinary contortions — like overruling nearly a century’s worth of case law to allow Trump to fire the heads of independent agencies created by Congress, creating a previously nonexistent doctrine of presidential criminal immunity that paved the way for his reelection, or, more recently, pretending to believe that a group of highly partisan political figures have suddenly become credible national security officials so that Trump could build his ballroom. The Trump administration lost several high-profile cases this year — on Trump’s efforts to impose “emergency” tariffs, end birthright citizenship, and fire Federal Reserve governor Lisa Cook — but it has generally gotten its way at the Court. |
| The Trump administration’s application, however, is conspicuously weak, and it is very possible that the considerable stakes here — both for the outcome of the midterm elections and the Court’s ongoing credibility crisis — could swing two or more of the Republican appointees to join the Democratic appointees and rule against the administration. |
| The Trump Justice Department has offered the Supreme Court three key arguments — one that is thematic, two that are legal, all of them unpersuasive. |
| The first argument, if you can call it that, involves repeatedly insulting the district court judge who issued the preliminary injunction blocking the rule. The government claims, for instance, that the judge provided “minimal, conclusory reasoning,” that the judge’s analysis of the merits was “a scant seven pages” that “can truly be reduced to three sentences,” and that her reasoning was “simplistic.” |
| None of this is true, as you can tell simply by flipping through the judge’s 49-page ruling, which walks through the factual record and the parties’ competing legal arguments in detail. In fact, the judge’s analysis is more substantive and thorough than anything that the Justice Department has filed. |
| In the grand scheme of things, this mischaracterization of the judge’s work may seem trivial, but it underscores two distinct problems — first, that the administration’s arguments are so weak that they have to attack the judge using false claims and insults, and second, that the Justice Department is run by a bunch of Republican political appointees who are actually quite bad at being lawyers. |
| The reason that this is less obvious than it should be is that they are mostly winning their cases at the Supreme Court, but that is not because of their exceptional professional skills. The Solicitor General, who filed the application on behalf of the department, is not in his position because of his distinguished career. He is there because he represented Trump in the immunity case, and because the Court’s Republican appointees eventually ruled in Trump’s favor. |
| The Justice Department’s second key argument is that the administration is simply regulating use of the mail, not administering elections. The Constitution gives the states and Congress the power to regulate elections, but according to the Trump administration, the new rule “imposes only modest envelope-design and addressee-information requirements” and is consistent with the agency’s requirements “for the mailing of cremated remains and replica explosives.” |
| Those analogies are practically self-refuting. Mail-in ballots do not pose the same risks to public safety and order as fake bombs, and they do not serve the same dignitary interests that are at stake when you mail the remains of your deceased family members or friends. There are no constitutional provisions that leave the regulation of fake bombs and cremated remains to the states and Congress. And there are no broader political or democratic objectives served by the timely mailing of fake bombs and cremated remains. |
| The Justice Department’s last key argument is that the Supreme Court should let the administration fully implement the rule because of the confusion that has been created by the lower court’s rulings blocking its efforts. |
| The argument is entirely backwards. In fact, the delay here is the fault of the Trump administration, which waited until less than two weeks ago to issue the final rule. This is despite the fact that the president issued his executive order setting the rulemaking in motion over five months ago and that he could have done so at any time since returning to office. |
| One reason that this took so much time is that the Trump administration tried — and failed — to get Republicans in Congress to pass the so-called SAVE America Act, which would have imposed even more onerous restrictions on voting in federal elections. Trump tried to force Senate Republicans to pass the law on multiple occasions, but he could not rally enough votes even within his own party. |
| Most importantly, it is the administration’s rule that will cause chaos and confusion leading up to the midterms if the Supreme Court allows it to take effect. The district court’s opinion walks through these issues in detail and concludes — on the basis of submissions from state election officials throughout the country — that “they are unable to pivot this late in the election cycle, nearly guaranteeing significant disenfranchisement for eligible voters.” |
| This could be the argument that eventually costs the Trump administration the case. That is because, in order to prevail, the Trump administration has to persuade the Court (1) that it is ultimately likely to succeed on the merits in defending its rule in the courts and (2) that the balance of equities and the potential for irreparable harm weigh in its favor. |
| Even if some justices are inclined to side with the administration on the merits, there is no good argument that the equities or the potential for irreparable harm favor the administration. The main policy argument that the administration has advanced is that the rule would help prevent mail-in voting fraud by illegal immigrants, but there is no evidence that fraud like this occurs in meaningful numbers, just as there was no supporting evidence the last time that Trump falsely claimed that there was massive voter fraud. |
| A ruling like this would not definitively end the efforts to curb mail-in voting by the Trump administration, which could try to implement the same (or a similar) rule ahead of the 2028 election. It would, however, force the administration to defend this incursion into the democratic process in a more orderly, rigorous, and public way. |
| One hopes that this will be an easy decision for at least two of the Republican appointees. We’ll find out soon enough. |
