WEBVTT - Messy Fight Over Mail Voting 0:00:02.740 --> 0:00:07.040 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:08.640 --> 0:00:12.770 Nearly one in three voters across the country votes by mail. 0:00:13.330 --> 0:00:17.610 But President Donald Trump has been railing against mail-in voting 0:00:17.710 --> 0:00:21.990 for years, saying without proof that it leads to fraud. 0:00:22.770 --> 0:00:24.130 Mail-in ballots are corrupt. 0:00:24.690 --> 0:00:29.270 Mail-in ballots, you can never have a real democracy with 0:00:29.330 --> 0:00:31.650 mail-in ballots. And we, as a. 0:00:31.640 --> 0:00:35.220 Republican Party, are going to do everything possible that we 0:00:35.240 --> 0:00:38.479 get rid of mail-in ballots. Well, now the Supreme Court's 0:00:38.640 --> 0:00:42.820 six Republican appointees have given Trump a win on his 0:00:42.900 --> 0:00:47.400 executive order restricting mail voting. They didn't find it legal, 0:00:47.720 --> 0:00:51.660 but they didn't find it illegal either. Instead, they kicked 0:00:51.700 --> 0:00:54.550 the can down the road and allowed Trump to go 0:00:54.670 --> 0:00:58.660 forward with using the Postal Service to limit the distribution 0:00:58.670 --> 0:01:03.140 of mail ballots in the November midterms. A renewed challenge 0:01:03.200 --> 0:01:07.080 to the executive order is almost certain in the coming days, 0:01:07.520 --> 0:01:10.959 and time is running out to make any changes in 0:01:11.000 --> 0:01:14.910 the nation's voting procedures. Joining me is an expert in 0:01:14.970 --> 0:01:19.789 elections law, Professor Richard Brafault of Columbia Law School. Rich, 0:01:19.870 --> 0:01:23.530 what does this decision signify? I mean, what does it 0:01:23.770 --> 0:01:24.510 actually mean? 0:01:25.240 --> 0:01:28.200 That's actually hard to decide. It could be a little 0:01:28.300 --> 0:01:31.120 or it could be a lot, frankly. The court basically 0:01:31.480 --> 0:01:37.300 overturned a lower court order staying the president's executive order, 0:01:37.860 --> 0:01:41.479 directing the Postal Service to come up with new rules 0:01:41.520 --> 0:01:45.330 and restrictions on mail-in ballots and also directing the Department 0:01:45.360 --> 0:01:48.550 of Homeland Security to come up with a list of U.S. 0:01:48.610 --> 0:01:53.050 citizens eligible to vote. All the court did was say, 0:01:53.670 --> 0:01:58.050 that the lower court's action was premature. The lawsuit was 0:01:58.170 --> 0:02:02.210 brought by 23 states and the District of Columbia, saying 0:02:02.250 --> 0:02:06.090 that in order to comply with any new rule governing 0:02:06.140 --> 0:02:08.250 mail ballots, they would have to start spending money and 0:02:08.280 --> 0:02:13.000 start preparing, and that would be expensive and burdensome to them, 0:02:13.060 --> 0:02:15.220 and so they had a right to sue. The lower 0:02:15.300 --> 0:02:17.300 court agreed with that, as did the Court of Appeals. 0:02:17.320 --> 0:02:20.340 The Supreme Court said no, That's not right. It's not right. 0:02:20.580 --> 0:02:23.120 That is, it's not clear whether or not the Postal 0:02:23.139 --> 0:02:27.419 Service would issue an order and what the order would do. Ironically, 0:02:27.560 --> 0:02:31.060 Friday night, the Postal Service actually issued that order, issued 0:02:31.080 --> 0:02:33.820 a final rule which would impose all sorts of new 0:02:33.870 --> 0:02:38.190 requirements on state mail-in ballots. But the Supreme Court on Monday, 0:02:38.710 --> 0:02:42.489 following the Friday ruling by the Postal Service, said the 0:02:42.570 --> 0:02:46.650 original suit nonetheless was not right because it was speculative. 0:02:47.150 --> 0:02:50.370 It wasn't clear what the Postal Service would do. The 0:02:50.450 --> 0:02:53.880 suit was targeted at the executive order, which only was 0:02:54.190 --> 0:02:57.000 telling the Postal Service to do something. There was no 0:02:57.060 --> 0:03:01.280 Postal Service ruling to challenge. So the Supreme Court basically 0:03:01.900 --> 0:03:05.880 eliminated the injunction that the 23 states and D.C. had 0:03:05.960 --> 0:03:10.060 obtained against the Postal Service from implementing the executive order. 0:03:10.600 --> 0:03:13.560 There is, however, a separate case in which there's also 0:03:13.600 --> 0:03:15.730 an injunction that was brought by the League of Women 0:03:15.770 --> 0:03:18.310 Voters on behalf of voters who'd be impacted by this, 0:03:18.730 --> 0:03:21.530 which actually would affect all 50 states. That injunction is 0:03:21.550 --> 0:03:23.369 still in place, at least it was as of first 0:03:23.410 --> 0:03:26.980 thing this morning. And in any event, now that the 0:03:27.139 --> 0:03:30.660 Postal Service has issued what's called a final rule, presumably 0:03:31.100 --> 0:03:34.100 all the parties will be back in court, including the 0:03:34.240 --> 0:03:36.280 League of Women Voters and the ACLU, which still have 0:03:36.320 --> 0:03:40.480 the other injunction, and try and convert the injunction against 0:03:40.780 --> 0:03:44.550 implementing a rule to an injunction against the rule itself. 0:03:44.970 --> 0:03:47.730 And so that's where we are. The Supreme Court basically 0:03:47.770 --> 0:03:50.890 said this matter of standing the state sued too soon. 0:03:50.910 --> 0:03:53.310 It was a six to three decision, as so many 0:03:53.330 --> 0:03:55.670 of them are. The majority was very clear to say 0:03:55.910 --> 0:03:58.970 that this is not a ruling on the merits of 0:03:59.050 --> 0:04:03.170 any postal service requirements on mail ballots. Literally, the opinion 0:04:03.210 --> 0:04:05.560 says time will tell. This is a victory for the 0:04:05.590 --> 0:04:09.440 Trump administration. in that they are allowed to go forward 0:04:09.800 --> 0:04:13.820 and put out there a rule, but it just really 0:04:13.880 --> 0:04:17.120 kicks the can down the road in terms of whether 0:04:17.220 --> 0:04:20.240 and when we will get a ruling on the validity 0:04:20.940 --> 0:04:26.180 of the Postal Service's rule, which will impose new requirements 0:04:26.580 --> 0:04:29.430 and limitations on state mail-in ballots. 0:04:30.110 --> 0:04:33.969 Why even issue that opinion? And why not say, you know, 0:04:34.290 --> 0:04:39.130 under the Constitution... States and Congress determine voting procedures, not 0:04:39.180 --> 0:04:42.260 the White House or a federal agency like the post office. 0:04:42.380 --> 0:04:45.240 I mean, isn't that a glaring problem here? 0:04:45.260 --> 0:04:51.660 I mean, the why is an unanswerable question. I mean, again, technically, technically, technically, 0:04:52.100 --> 0:04:54.900 the court is dealing almost with a matter of civil procedure, 0:04:55.440 --> 0:04:57.910 of the timing by the states or the timing of 0:04:57.990 --> 0:05:01.420 any plaintiff. when they want to challenge a presidential order. 0:05:01.740 --> 0:05:04.060 And the opinion is written solely in terms of the 0:05:04.140 --> 0:05:07.230 timing of the suit. And as we know, in many cases, 0:05:07.250 --> 0:05:09.130 the Supreme Court has sometimes said that suits are brought 0:05:09.170 --> 0:05:11.750 too late. If something is too close to an election, 0:05:12.110 --> 0:05:13.730 this time the Supreme Court has said the suit was 0:05:13.790 --> 0:05:17.710 brought too early. Well, it is now timely. And now 0:05:17.730 --> 0:05:21.360 that the Postal Service has issued its final rule on 0:05:21.420 --> 0:05:24.700 what the envelope should look like, the existence of barcodes, 0:05:25.040 --> 0:05:28.969 and potentially, you know, who can receive these mail-in ballots. 0:05:29.390 --> 0:05:33.220 Now that there is actually a final rule, presumably the 0:05:33.300 --> 0:05:38.000 problem of ripeness or standing goes away. And presumably there'll 0:05:38.020 --> 0:05:41.460 be a lower court decision pretty quickly. And this will 0:05:41.490 --> 0:05:45.210 probably move through the court system pretty quickly. And my 0:05:45.250 --> 0:05:48.429 guess is, well, who knows? I mean, oddly, this case 0:05:48.490 --> 0:05:50.370 actually sat in the Supreme Court for almost a month. 0:05:50.800 --> 0:05:53.060 The lower court's injunction was issued some time ago. The 0:05:53.100 --> 0:05:56.960 Court of Appeals sustained it. Justice Department brought their appeal 0:05:57.000 --> 0:05:59.960 to the Supreme Court in late July for more than 0:05:59.990 --> 0:06:05.750 three weeks. Now we are roughly 70 days from Election Day. 0:06:05.790 --> 0:06:08.710 By my count, it's probably 10 weeks. It will be 0:06:09.470 --> 0:06:12.800 extremely burdensome, if even possible, for the states to comply. 0:06:13.380 --> 0:06:16.280 Some states start mailing out their mail-in ballots right after 0:06:16.300 --> 0:06:20.320 Labor Day. There's also the federal law dealing with uniformed 0:06:20.400 --> 0:06:23.600 and overseas voters, servicemen and women who are stationed overseas 0:06:23.640 --> 0:06:26.980 who have to get their ballots by mid-September, by 45 0:06:26.980 --> 0:06:32.250 days before the election. So the timing is very, very tight. 0:06:32.930 --> 0:06:36.250 Leaving aside the merits of where does the Postal Service 0:06:36.270 --> 0:06:39.010 get the power, the authority to do this? You know, 0:06:39.190 --> 0:06:42.690 it is a victory for the Trump administration. It does 0:06:42.770 --> 0:06:46.430 move them one step closer to being able to regulate 0:06:46.450 --> 0:06:49.930 mail-in ballots, but it's only one step, and it's a 0:06:49.950 --> 0:06:53.250 relatively small step. The big steps are ahead of us. 0:06:53.630 --> 0:06:56.810 Is it suspicious that they waited so long to issue 0:06:56.880 --> 0:06:59.740 this decision that just kicks it down the road? In 0:06:59.760 --> 0:07:03.920 her dissent, Katonji Brown Jackson warned that the administration might 0:07:03.960 --> 0:07:05.620 be trying to game the system. 0:07:05.640 --> 0:07:08.599 I don't know if it's suspicious. It's weird. It's almost like, 0:07:08.640 --> 0:07:11.100 why are they even bothering now that there's a rule 0:07:11.140 --> 0:07:14.250 out there? I mean, I think what many scholars and 0:07:14.330 --> 0:07:18.230 observers are concerned about is a kind of a catch-22 happening, 0:07:18.450 --> 0:07:21.670 that the Supreme Court says it was too early for 0:07:21.710 --> 0:07:23.930 the states to sue because it wasn't clear that it 0:07:23.990 --> 0:07:26.070 was going to be a rule. And now that there 0:07:26.130 --> 0:07:28.720 is a rule, it's too late, invoking something known as 0:07:28.760 --> 0:07:32.620 the Purcell principle, which is that federal courts don't get 0:07:32.680 --> 0:07:35.900 involved in challenges to election rules when it's too close 0:07:35.940 --> 0:07:40.060 to an election. And that would be the ultimate irony here, 0:07:40.100 --> 0:07:42.920 is if it was too too soon to sue before 0:07:43.360 --> 0:07:47.630 August 22nd and too late to sue afterwards. But hopefully 0:07:47.670 --> 0:07:50.390 we will not be in that situation. I mean, one 0:07:50.470 --> 0:07:52.790 argument that the plaintiffs will now have, and it's going 0:07:52.810 --> 0:07:55.590 to be both states and I think voting rights organizations, 0:07:56.250 --> 0:08:00.310 is that given the court's decision yesterday, they could not 0:08:00.350 --> 0:08:03.550 have sued any earlier. So at least there's no argument 0:08:03.710 --> 0:08:07.100 that they delayed Sometimes the concern when suits are brought 0:08:07.140 --> 0:08:09.860 close to an election is that the plaintiffs waited too long. 0:08:10.000 --> 0:08:12.830 That's often not the case, but that's the argument that 0:08:12.870 --> 0:08:15.530 sometimes has been raised by the courts. Here you couldn't 0:08:15.570 --> 0:08:16.850 possibly make that argument. 0:08:17.410 --> 0:08:21.650 Do you think that any of those six conservative justices 0:08:22.330 --> 0:08:27.900 actually buy Trump's arguments about mail-in voting and fraud? 0:08:28.780 --> 0:08:30.980 I think it's quite possible. I think for them the 0:08:31.000 --> 0:08:33.730 question is going to have to be, what is the 0:08:33.790 --> 0:08:38.829 authority that the Postal Service has to regulate who the 0:08:39.010 --> 0:08:43.210 states can mail in ballots to? Some of it is 0:08:43.250 --> 0:08:45.980 there are new requirements as to what the envelopes have 0:08:46.020 --> 0:08:48.679 to look like and to have barcodes. And there, I mean, 0:08:48.740 --> 0:08:51.880 to what extent can they regulate the ballots, the ballot 0:08:51.960 --> 0:08:54.660 format that the states use? And to what extent does 0:08:54.679 --> 0:08:58.680 the Postal Service have legal authority to do that? In 0:08:58.700 --> 0:09:01.489 the briefs, the Justice Department sort of said, that the 0:09:01.530 --> 0:09:05.370 Postal Service has imposed special envelopes for the mailing of, 0:09:05.450 --> 0:09:09.910 and get this, human and animal cremains. They're ever being shipped. 0:09:09.929 --> 0:09:12.390 There are special requirements for that and for things that 0:09:12.410 --> 0:09:17.000 are known as inert or replica explosives. And the idea 0:09:17.059 --> 0:09:21.360 that a ballot presents the same kinds of issues as 0:09:21.760 --> 0:09:25.920 human and animal cremains or remains and inert explosives is 0:09:25.960 --> 0:09:28.179 kind of mind-boggling. I mean, in some ways, I think 0:09:28.200 --> 0:09:30.450 the question they're going to have to face first is, 0:09:30.980 --> 0:09:33.360 Does the Postal Service have the authority to do any 0:09:33.400 --> 0:09:36.420 of this? And then we're getting into the burdensomeness and 0:09:36.470 --> 0:09:39.420 the timing of it. I mean, you know, whether there's 0:09:39.570 --> 0:09:42.329 fraud or not, it sort of goes back to, in 0:09:42.390 --> 0:09:45.950 some ways, one of the issues with respect to birthright citizenship, 0:09:45.970 --> 0:09:49.349 and at the very least, Justice Kavanaugh's concurring opinion that 0:09:49.870 --> 0:09:52.730 whether or not the Constitution is relevant here, the president 0:09:52.730 --> 0:09:55.270 didn't have the authority to do this by executive order. 0:09:55.270 --> 0:09:57.360 At the very least, the court would have to look 0:09:57.360 --> 0:09:59.510 at what is the authority of the Postal Service has 0:09:59.550 --> 0:10:02.349 to adopt rules like this. Then we get into the 0:10:02.410 --> 0:10:05.950 constitutional questions of to what extent does that interfere with 0:10:06.010 --> 0:10:10.150 the state's constitutional role in running elections? And then beyond that, 0:10:10.410 --> 0:10:12.880 to what extent, given the timing, is this going to 0:10:12.910 --> 0:10:14.980 interfere with the rights of voters to be able to 0:10:15.010 --> 0:10:17.660 cast ballots under state law? So there's a whole lot 0:10:17.700 --> 0:10:19.400 of questions that are going to have to be addressed 0:10:19.480 --> 0:10:22.239 and This opinion touches on none of that. 0:10:22.679 --> 0:10:25.130 We've talked so many times about, you know, how much 0:10:25.210 --> 0:10:28.550 time it takes the states to get things going for elections. 0:10:28.610 --> 0:10:32.089 And it just seems like there is no possible way 0:10:32.170 --> 0:10:36.700 there is enough time to revamp the procedures in time 0:10:36.720 --> 0:10:39.660 for the midterms. It seems like it's going to just 0:10:39.760 --> 0:10:42.020 cause incredible chaos. 0:10:42.780 --> 0:10:45.220 In some ways, it's actually worse than that because the 0:10:45.240 --> 0:10:48.520 states are our significant actors. It's local governments that actually 0:10:48.540 --> 0:10:51.540 do most of this. city and county boards of elections. 0:10:51.820 --> 0:10:55.760 There's thousands of them across the country with totally different 0:10:55.800 --> 0:10:59.010 levels of resources and funding. If they're going to have 0:10:59.030 --> 0:11:02.590 to start creating special envelopes and compiling certain lists and 0:11:02.830 --> 0:11:06.150 doing things at this late stage, it's going to be 0:11:06.190 --> 0:11:09.070 very difficult. I mean, a state might be able to 0:11:09.130 --> 0:11:12.660 do this, but the elections at the granular level are 0:11:12.720 --> 0:11:15.920 really being run by county and city boards of elections. 0:11:16.640 --> 0:11:19.080 And for some of them, for smaller ones, it's going 0:11:19.100 --> 0:11:21.900 to be incredibly burdensome. I mean, it's hard to imagine 0:11:21.920 --> 0:11:24.220 that it's actually doable at this late stage. 0:11:25.000 --> 0:11:27.300 So, Rich, part of this is that the Department of 0:11:27.360 --> 0:11:31.480 Homeland Security is now going to compile a list of 0:11:31.620 --> 0:11:35.740 citizens in each state who can vote. But the Justice 0:11:35.780 --> 0:11:39.600 Department has actually been suing the states to try to 0:11:39.660 --> 0:11:43.460 get their voter rolls. Where is DHS going to get 0:11:43.559 --> 0:11:47.770 the names for its list of citizens? this seems like 0:11:47.870 --> 0:11:51.650 another dangerous area. How are they going to form that list? 0:11:52.290 --> 0:11:56.670 Right. There is no central list of citizens. And they 0:11:56.710 --> 0:11:59.710 will look to various sources, but there are errors and 0:11:59.750 --> 0:12:02.090 inconsistencies in all the sources, and you have to put 0:12:02.110 --> 0:12:04.970 them all together. It's also a moving target. I mean, 0:12:05.090 --> 0:12:10.010 people become naturalized every day. New people become citizens, and 0:12:10.190 --> 0:12:14.640 people move. And In many states, you are eligible to 0:12:14.700 --> 0:12:17.360 register to vote up to 30 days before the election. 0:12:17.860 --> 0:12:20.800 A few states don't have registration requirements at all or 0:12:20.840 --> 0:12:24.599 have same-day registration. So although the idea here is to 0:12:24.640 --> 0:12:28.319 have something 60 days, there'll be new people eligible almost 0:12:28.420 --> 0:12:31.229 every day. And once you're registered, you should be entitled 0:12:31.250 --> 0:12:34.030 to vote by mail if the state allows it. So 0:12:34.190 --> 0:12:37.370 it's just hard to see how this works, even if 0:12:37.429 --> 0:12:40.970 it's constitutional or even if there's a statutory authorization, which 0:12:41.400 --> 0:12:43.780 I've got my doubts about. It's just hard to see 0:12:43.800 --> 0:12:45.970 how this is going to work in practice and certainly 0:12:45.990 --> 0:12:49.770 how it's going to work this time. It's conceivable that 0:12:49.990 --> 0:12:52.410 if this all goes forward, maybe something could be worked 0:12:52.510 --> 0:12:54.790 out a year from now. I mean, remember, people think 0:12:54.830 --> 0:12:57.230 in terms of 26 and 28, but of course, there 0:12:57.250 --> 0:13:00.429 are elections all the time. There are special elections, you know, 0:13:00.550 --> 0:13:03.230 there are vacancy elections. You know, it's just hard to 0:13:03.290 --> 0:13:06.050 see how this can get done in any reasonable amount 0:13:06.090 --> 0:13:06.410 of time. 0:13:07.590 --> 0:13:09.950 This means if you do it from the executive branch 0:13:09.990 --> 0:13:12.589 in the Postal Service, another president comes in and says, 0:13:12.610 --> 0:13:15.000 I don't want to do it that way. I'm going 0:13:15.010 --> 0:13:17.420 to issue an executive order that we do it this way. 0:13:17.760 --> 0:13:20.920 I mean, that's another possibility, right? The president was trying 0:13:20.940 --> 0:13:23.360 to get the SAVE Act passed and never got passed. 0:13:23.920 --> 0:13:26.520 And he's treating this as an end run around Congress. 0:13:26.920 --> 0:13:29.179 It's not clear he can do that. I mean, voting 0:13:29.280 --> 0:13:33.220 is largely a state-run matter, but also these issues are 0:13:33.280 --> 0:13:36.160 big enough that they seem to be Major questions that 0:13:36.220 --> 0:13:38.840 ought to be resolved by Congress first, and not just 0:13:38.880 --> 0:13:40.760 by a president. As you point out, one president could 0:13:40.780 --> 0:13:42.600 do it one way, another president could do it another way. 0:13:43.179 --> 0:13:45.250 This is a big deal, and it should get the 0:13:45.290 --> 0:13:49.229 buy-in of Congress, which it has not gotten. Presumably, this 0:13:49.290 --> 0:13:52.270 will quickly flip over into a direct challenge to the 0:13:52.309 --> 0:13:56.949 Postal Service rule. I'm sure, I mean, that this will very, very, 0:13:57.090 --> 0:13:59.469 very quickly turn into a case on the merits. I mean, 0:13:59.720 --> 0:14:02.340 the Justice Department was not litigating this on the merits. 0:14:02.380 --> 0:14:06.370 The brief in the Supreme Court was mostly on rightness 0:14:06.429 --> 0:14:09.950 and standing. So we don't really have a ruling on 0:14:09.990 --> 0:14:14.140 the merits of the legality and the constitutionality of the 0:14:14.179 --> 0:14:14.980 Postal Service Rule. 0:14:15.760 --> 0:14:19.360 This may change by the minute. Thanks so much, Rich. 0:14:19.680 --> 0:14:23.850 That's Professor Richard Brafald of Columbia Law School. And that's 0:14:23.930 --> 0:14:26.490 it for this edition of the Bloomberg Law Show. Remember, 0:14:26.510 --> 0:14:28.690 you can always get the latest legal news on our 0:14:28.730 --> 0:14:32.970 Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 0:14:33.050 --> 0:14:39.050 and at www.bloomberg.com slash podcast slash law. And remember to 0:14:39.090 --> 0:14:42.510 tune into the Bloomberg Law Show every weeknight at 10 p.m. 0:14:42.550 --> 0:14:46.600 Wall Street time. I'm June Grosso, and you're listening to Bloomberg.