Conservative Majority Shows Its Hand Again in Mail-In Ballot Case

Yes it’s true that the Supreme Court’s decision in Trump v. California (the mail-in ballot and voter list case) granting a stay that lifts a district court’s order that stopped the implementation of Trump’s Executive Order 14399 is not a catastrophe. Yet.

The Executive Order set forth the first steps in Trump’s plan to assert Executive branch authority over state voter eligibility lists and over the delivery of mail-in ballots.

The Court based its decision lifting the injunction on its assessment that the states that sued to stop the rule are “unlikely to prevail on the merits” of the case, because the Court determined, the states’ claim are not “ripe.” This means that because the Order doesn’t require that the states to take any action yet, there is no ripe dispute over which federal courts can assert jurisdiction.

Of course it is well-understood that the Administration has separately demanded that states provide voting lists to the Department of Justice - even suing two dozen states in an attempt to obtain the information. The Administration has admitted it plans to share the voting lists it receives with the Department of Homeland Security. The purpose is to aid the Administration in its plan to create a federally-approved “list of eligible voters.”

The plan is yet another unconstitutional effort by the Administration to assert an Executive branch role in elections. As Justice Jackson explains in her forceful dissent, “[t]he Constitution clearly assigns the power to conduct federal elections to the States” (emphasis in original). There is no role for the President in assembling voter lists or controlling any aspect of elections in our Constitution.

But in today’s unsigned opinion, the majority concluded that the states have not yet suffered the kind of “concrete injury” that would satisfy the requirement that a claimant have suffered an “injury in fact” in order access the jurisdiction of the federal courts.

The Executive Order also requires that the Postal Service take steps towards “initiating proposed rulemaking” that would allow the USPS to deliver only those mail-in ballots from voters who appear on an Administration created and approved list of eligible citizens. These actions, the Court says, are not concrete enough for a legal challenge because neither the states nor the Post Office are asked to take any action with sufficient finality to make this case “justiciable” - or ripe enough to be heard by the Court.

But the Post Office actually promulgated a final rule to comply with the demand of the Executive Order late last Friday evening. Either the Court didn’t know that when it issued this decision today, or they did know it and chose anyway to make its claim that this suit is not sufficiently ripe to be heard by the federal courts. Either answer does not speak well for the Court.

What do I take away from all of this? First, don’t tamp down the significance of the Court’s action in this case.

First, I continue to be gobsmacked by the sheer audacity of this Court in its abandonment of any semblance consistency in deciding which claims are deemed “ripe” and which are not. It is a significant aspect of this Court’s hollow jurisprudence because how you answer that question determines who gets access to the federal courts and what claims get punted. The Court’s threw away its credibility on the question of “ripeness” in 2023 when in 303 Creative LLC v. Elenis, the Court heard the case of a graphic designer whose standing for her claim was premised on the fact that she was considering adding a wedding planning website to her graphic design business. She feared that if a gay couple asked for her services and she refused (based her religious opposition to marriage equality), she would run afoul of Colorado’s human rights law.

Let me break that down more slowly: if she decided to add the wedding website feature to her graphic design business. And if a gay person sought her services. And assuming she refused to serve the hypothetical same sex couple.

On that basis, the Court found that Constitution’s protection of religious liberty prohibited the state of Colorado from compelling the plaintiff to offer her services on an equal basis to all customers seeking her services. But yesterday the Court’s claims that the injury claimed by the states (who are already preparing for a disruption to their mail-in ballot procedures) in response to Trump’s Executive Order is based on a “chain of inferences” that imagine “hypothetical future harm.”

But there’s another important reason to be alarmed by the Court’s grant of the stay sought by President Trump. This decision is yet another instance in which this Court demonstrates that it will credit take any action made by this President with legitimacy, no matter how compelling the evidence to the contrary. This is potentially catastrophic in the context of elections.

By now we have been hearing Trump’s fabulations about voter fraud since 2017. That year he contended that illegal voters were being bused into Massachusetts and New Hampshire to vote in elections. Despite no evidence of voter fraud (after all Trump won the 2016 election) Trump set up a so-called Election Integrity Commission in 2017 stocked with proponents of the claim that rampant voter fraud exists in the United States. Again, no evidence has been marshalled to this day supporting the claim of widespread voter fraud. The Commission was sued out of existence later that year.

President Trump spent all of 2020 raising claims of voter fraud. In the spring and summer of that year, he repeatedly attacked absentee ballots as fraudulent in speeches and on Twitter (despite the fact Trump, his Attorney General and other members of his cabinet) voted absentee. After the November election, Trump called and asked the Georgia Secretary of State to “find 11,000 votes” that Trump believed would allow him to add the state of Georgia to his electoral college. He claimed that there was fraud in the voter count in Detroit - again with no evidence.

Trump had his lawyers filed over 60 lawsuits attempting to prove voter fraud in the 2020 election. All of the lawsuits failed. Trump created a “Stop-the-Steal” movement based on the claim that the presidential election had been stolen from him, and encourage thousands of supporters to come to Washington, D.C., and “march to the Capitol.” This led to the violent and deadly attack on the Capitol during the official tallying of Electoral College votes on January 6, 2021.

Trump resumed his voter fraud claims in 2024, and has continued to this day. He has demanded passage of the draconian SAVE Act, although Congress has so far resisted. He has openly discussed his plan to create a master federal voting list, and he has demanded that states turn over state voter rolls to the Department of Homeland Security.

Nevertheless the conservative majority opens its per curiam opinion in Trump v. California like this: “[t]he President recently issued an Executive Order regarding election integrity.” A paragraph later, the majority described Trump’s issuance of the Order in this way: “About five months ago, President Trump issue an Executive Order designed to maintain public confidence in federal elections.”

This is the tell. The conservative majority strips President Trump’s Executive Order of its clear context and history in order to tell the public that it was issued in order to “maintain public confidence in federal elections.” What could be the basis for the Court to adopt this view of the President’s motivations, despite overwhelming evidence (unbroken over years) to the contrary?

This has become the consistent practice of the majority on this Court - to simply refuse to see the President’s actions within the context of the overwhelming weight of evidence. Once the majority puts these blinders on, they present this President’s abuses as legitimate exercises of Executive power.

We saw this in 2017 when the Court chose to ignore Trump’s repeated tirades in speeches and on Twitter demonstrating clear bias in his intention to impose a “Muslim ban.” And more recently we saw it when the Court upheld Trump’s recission of Temporary Protected Status for Haitian migrants despite overwhelming a record of grotesquely racist statements made by the President about Haitian migrants and his opposition to their presence in our country. In that case Justice Alito surmised that even the President’s statement that Haitian migrants were “poisoning the blood of our country” was not necessarily a racist statement. Trump might be saying that because Haiti is a poor country, Alito suggested.

This insistence on sanitizing Trump’s racism, and in the case of this Executive Order, justifiying Trump’s effort to create as Justice Jackson explains “election chaos” in advance of the midterm elections is an important tell. It makes clear once again that as Justice Jackson explained in 2025 that the guiding principles for this conservative majority’s decisionmaking as it relates to this Administration is that the Administration always wins - at least almost always.

And this means that we should not be surprised by any rulings that may come down from this Court in advance of the midterms, and perhaps even after, should the Administration attempt to litigate away it predicted electoral losses. No matter how obvious and transparent President Trump’s abuses, this Court will justify them.

Nothing has changed yet. But Trump’s actions are having their intended result. Many of us are hearing confusion from voters - about whether the requirements of the SAVE Act are now law. About whether this decision means that the Post Office will not deliver absentee ballots. About whether there will be an election at all.

And here’s where we need to remain steady and clear. The answers are that the SAVE Act is not law, nor will it be before the midterms. The Post Office must deliver mail-in ballots although we must be vigilant about whether new procedures might be imposed to slow the delivery of ballots or to refrain from delivering ballots. But civil rights legal organizations are at-the-ready to address that eventuality.

If Trump attempts to manufacture an “emergency” and use troops to interfere with the election, we will have to confront that eventuality. Once again legal teams are prepared. Fortunately we still have strong district courts that are making it difficult for this Administration to move with the speed they would like. He will be stopped at least temporarily by lower courts if he takes illegal actions against the election. But as yesterday’s decision shows us, we have no reason to expect that this Court will ultimately protect our elections.

This should harden our resolve to do what is necessary to ensure that we vote and that our votes count. I strongly encourage folks to:

• check the deadline for registration in your state and make sure all of your family, friends, acquaintances and colleagues are registered before the deadline. Your job is encourage those who are not register to register, and to encourage those who don’t vote to vote;

• Check your registration and polling place both two weeks and a week before the election to ensure you are on the rolls and that you know where you are going;

• plan to check on voters the week before Election Day to remind them to vote;

• Have the number of the civil rights Election Protecton hotline with you.when early voting starts in your state. The number is: 866-OUR-VOTE;

• Keep following reliable sources (the Legal Defense Fund; the Brennan CenterMarc Elias, Chris Geidner, Joyce Vance, Steve Vladeck, and many others) for up-to-date information and analysis about court rulings;

• attend this Friday’s March on Washington if you are able. Join the “100 Days, 1000 Marches to the Polls.” They need to see our determination to fight back.

This week’s decision by the Court is not a game changer. But we see the signs. We must not underestimate the willingness of the conservative majority on this Court to contradict its own doctrine, to upend precedent, to ignore the context of Trump’s decisionmaking, all in the service of assigning legitimacy to the policies pursued by the most mendacious and destructive President our country has ever known.