The Conversation’s politics and legal affairs editor Naomi Schalit talked with Quinnipiac University election law scholar John J. Martin about the ruling and what it signals may be ahead.
What’s the background to the Supreme Court’s ruling on Aug. 24?
Back in March, President Trump issued an executive order that was meant to, in his words, maintain “public confidence in election outcomes” and “enhance election integrity” in mail and absentee voting in federal elections. There are a few provisions that were included in that executive order.
The first would require the Department of Homeland Security to maintain a state citizenship list of residents in those states who are U.S. citizens, above the age of 18, and therefore eligible to vote in federal elections. The Department of Homeland Security would share these lists with each state at least 60 days prior to each federal election.
The next provision orders the U.S. attorney general to prioritize the investigation and the prosecution of state and local election officials who issue federal ballots to ineligible voters, such as noncitizens.Next, Trump ordered the U.S. Postal Service to devise rules that could substantially alter the ability for states to use mail and absentee ballots in federal elections. What this could look like is, for example, a requirement that a mail ballot being used in a federal election has to look a particular way.
The executive order also gives states the option to provide the Postal Service at least 60 days before a federal election a list of voters entitled to vote by mail or by absentee ballot. But that deadline conflicts with a federal rule that states must give voters the opportunity to register to vote at least 30 days prior to an election. So states might not even know 60 days prior to an election who was entitled to use an absentee or mail ballot.
Finally, the big one is that the executive order directs the U.S. Postal Service to not transmit any mail or absentee ballots from voters in federal elections who do not appear on a mail-in or absentee voter list compiled by the service, presumably based on the list being provided to it by the states, although the executive order isn’t fully clear on this.
So, if a voter isn’t on that list, the Postal Service can just ditch that person’s ballot?
The executive order tells the Postal Service that it should not transmit that ballot over mail.
But the Supreme Court did not rule on the legality of the executive order, did it?
No. A number of states sued the Trump administration pretty quickly after this executive order was issued, arguing that the president simply doesn’t have the authority to implement these policies. The states specifically asked for a preliminary injunction in federal court, which allows the court to pause the government’s actions before the case is fully resolved. The lower court ultimately issued the preliminary injunction, temporarily blocking the implementation of the executive order.
The Trump administration argued the states lacked something called standing, which requires a plaintiff to suffer an actual or imminent injury in order to bring a case in federal court. Accordingly, the preliminary injunction should not have been issued.
The Supreme Court ultimately agreed with the Trump administration and contended that because a lot of the executive order either required the states to do nothing, or had yet to be fully realized, the states’ case here was premature. They had yet to suffer an injury.
But it’s not permanent that the states do not have standing. It’s that they did not have standing at this moment until the rules to come out of this executive order had been put into effect. Is that correct?
That’s correct. So, theoretically, if the Postal Service were to propose a rule that would forbid the transmission of ballots that don’t meet their standards, and then that rule is ultimately adopted, then the states would have standing to bring this case.
The Constitution gives the states the power to administer elections. What power is the president asserting here that would legitimately allow him, or the executive, to demand these changes?
The U.S. Constitution certainly makes states the default administrators of elections, and that includes federal, state and local elections. The federal government plays some roles in regulating elections, with the Constitution allowing Congress the ability to override states’ regulations of the procedural aspects of congressional elections.
The Supreme Court has also found that Congress has some authority to regulate certain aspects of presidential elections, such as in the area of campaign finance. And under the 14th and 15th amendments, Congress has the ability to implement laws that fulfill the equal protection clause or the 15th Amendment’s prohibition against racial discrimination in elections. That’s how we get something like the Voting Rights Act. And that can apply to federal, state and local elections.
But states still remain the predominant administrator of elections.
And the president’s role in elections?
It’s hard to find any constitutional source that backs up the idea that the president has unilateral authority to decide how elections are run, even federal elections.
Maybe the strongest argument you can make in this case is that the president has authority over officers in the executive branch of the federal government. So the president could certainly direct executive officers, such as the postmaster general, to do things or not do things. But it doesn’t mean that the president can tell these officers to just do whatever the president wants in violation of the Constitution.
This is a very long way to say that the president really doesn’t seem to have authority to be doing what he’s doing right now.
So this was a procedural decision by the Supreme Court; there’s also a similar case brought by voting rights groups that they may consider. In the end, is everybody just playing a waiting game for the substance of this executive order to get to the Supreme Court to have the Supreme Court say sorry, President Trump, you can’t do it, case closed?
The Supreme Court cannot avoid deciding this on the merits of the case.
Regardless of how and when this all proceeds, will it have an effect on upcoming midterms?
Election officials need to know how they’re supposed to manage their elections, and they need to know this months in advance. They want to know: Are we actually able to implement mail voting, or absentee voting, the way that we’ve always done it? Or is this executive order going to completely throw a monkey wrench into the process, and now we have to rethink everything, and we have to wait until we receive a list from the U.S. Postal Service confirming that the voters that we believe are entitled to these ballots are, in fact, entitled to these ballots?
And voters might be fearful that if they try to vote by mail it won’t be counted. That could discourage people from voting through a process that has made it easier and more straightforward to vote for certain segments of the population – and really everyone.
John J. Martin, Assistant Professor of Law, Quinnipiac University
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