Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
Speaker 2: Nearly one in three voters across the country votes by mail.
Speaker 2: But President Donald Trump has been railing against mail-in voting
Speaker 2: for years, saying without proof that it leads to fraud.
Speaker 2: Mail-in ballots are corrupt.
Speaker 1: Mail-in ballots, you can never have a real democracy with
Speaker 1: mail-in ballots. And we, as a.
Speaker 2: Republican Party, are going to do everything possible that we
Speaker 2: get rid of mail-in ballots. Well, now the Supreme Court's
Speaker 2: six Republican appointees have given Trump a win on his
Speaker 2: executive order restricting mail voting. They didn't find it legal,
Speaker 2: but they didn't find it illegal either. Instead, they kicked
Speaker 2: the can down the road and allowed Trump to go
Speaker 2: forward with using the Postal Service to limit the distribution
Speaker 2: of mail ballots in the November midterms. A renewed challenge
Speaker 2: to the executive order is almost certain in the coming days,
Speaker 2: and time is running out to make any changes in
Speaker 2: the nation's voting procedures. Joining me is an expert in
Speaker 2: elections law, Professor Richard Brafault of Columbia Law School. Rich,
Speaker 2: what does this decision signify? I mean, what does it
Speaker 2: actually mean?
Speaker 1: That's actually hard to decide. It could be a little
Speaker 1: or it could be a lot, frankly. The court basically
Speaker 1: overturned a lower court order staying the president's executive order,
Speaker 1: directing the Postal Service to come up with new rules
Speaker 1: and restrictions on mail-in ballots and also directing the Department
Speaker 1: of Homeland Security to come up with a list of U.S.
Speaker 1: citizens eligible to vote. All the court did was say,
Speaker 1: that the lower court's action was premature. The lawsuit was
Speaker 1: brought by 23 states and the District of Columbia, saying
Speaker 1: that in order to comply with any new rule governing
Speaker 1: mail ballots, they would have to start spending money and
Speaker 1: start preparing, and that would be expensive and burdensome to them,
Speaker 1: and so they had a right to sue. The lower
Speaker 1: court agreed with that, as did the Court of Appeals.
Speaker 1: The Supreme Court said no, That's not right. It's not right.
Speaker 1: That is, it's not clear whether or not the Postal
Speaker 1: Service would issue an order and what the order would do. Ironically,
Speaker 1: Friday night, the Postal Service actually issued that order, issued
Speaker 1: a final rule which would impose all sorts of new
Speaker 1: requirements on state mail-in ballots. But the Supreme Court on Monday,
Speaker 1: following the Friday ruling by the Postal Service, said the
Speaker 1: original suit nonetheless was not right because it was speculative.
Speaker 1: It wasn't clear what the Postal Service would do. The
Speaker 1: suit was targeted at the executive order, which only was
Speaker 1: telling the Postal Service to do something. There was no
Speaker 1: Postal Service ruling to challenge. So the Supreme Court basically
Speaker 1: eliminated the injunction that the 23 states and D.C. had
Speaker 1: obtained against the Postal Service from implementing the executive order.
Speaker 1: There is, however, a separate case in which there's also
Speaker 1: an injunction that was brought by the League of Women
Speaker 1: Voters on behalf of voters who'd be impacted by this,
Speaker 1: which actually would affect all 50 states. That injunction is
Speaker 1: still in place, at least it was as of first
Speaker 1: thing this morning. And in any event, now that the
Speaker 1: Postal Service has issued what's called a final rule, presumably
Speaker 1: all the parties will be back in court, including the
Speaker 1: League of Women Voters and the ACLU, which still have
Speaker 1: the other injunction, and try and convert the injunction against
Speaker 1: implementing a rule to an injunction against the rule itself.
Speaker 1: And so that's where we are. The Supreme Court basically
Speaker 1: said this matter of standing the state sued too soon.
Speaker 1: It was a six to three decision, as so many
Speaker 1: of them are. The majority was very clear to say
Speaker 1: that this is not a ruling on the merits of
Speaker 1: any postal service requirements on mail ballots. Literally, the opinion
Speaker 1: says time will tell. This is a victory for the
Speaker 1: Trump administration. in that they are allowed to go forward
Speaker 1: and put out there a rule, but it just really
Speaker 1: kicks the can down the road in terms of whether
Speaker 1: and when we will get a ruling on the validity
Speaker 1: of the Postal Service's rule, which will impose new requirements
Speaker 1: and limitations on state mail-in ballots.
Speaker 2: Why even issue that opinion? And why not say, you know,
Speaker 2: under the Constitution... States and Congress determine voting procedures, not
Speaker 2: the White House or a federal agency like the post office.
Speaker 2: I mean, isn't that a glaring problem here?
Speaker 1: I mean, the why is an unanswerable question. I mean, again, technically, technically, technically,
Speaker 1: the court is dealing almost with a matter of civil procedure,
Speaker 1: of the timing by the states or the timing of
Speaker 1: any plaintiff. when they want to challenge a presidential order.
Speaker 1: And the opinion is written solely in terms of the
Speaker 1: timing of the suit. And as we know, in many cases,
Speaker 1: the Supreme Court has sometimes said that suits are brought
Speaker 1: too late. If something is too close to an election,
Speaker 1: this time the Supreme Court has said the suit was
Speaker 1: brought too early. Well, it is now timely. And now
Speaker 1: that the Postal Service has issued its final rule on
Speaker 1: what the envelope should look like, the existence of barcodes,
Speaker 1: and potentially, you know, who can receive these mail-in ballots.
Speaker 1: Now that there is actually a final rule, presumably the
Speaker 1: problem of ripeness or standing goes away. And presumably there'll
Speaker 1: be a lower court decision pretty quickly. And this will
Speaker 1: probably move through the court system pretty quickly. And my
Speaker 1: guess is, well, who knows? I mean, oddly, this case
Speaker 1: actually sat in the Supreme Court for almost a month.
Speaker 1: The lower court's injunction was issued some time ago. The
Speaker 1: Court of Appeals sustained it. Justice Department brought their appeal
Speaker 1: to the Supreme Court in late July for more than
Speaker 1: three weeks. Now we are roughly 70 days from Election Day.
Speaker 1: By my count, it's probably 10 weeks. It will be
Speaker 1: extremely burdensome, if even possible, for the states to comply.
Speaker 1: Some states start mailing out their mail-in ballots right after
Speaker 1: Labor Day. There's also the federal law dealing with uniformed
Speaker 1: and overseas voters, servicemen and women who are stationed overseas
Speaker 1: who have to get their ballots by mid-September, by 45
Speaker 1: days before the election. So the timing is very, very tight.
Speaker 1: Leaving aside the merits of where does the Postal Service
Speaker 1: get the power, the authority to do this? You know,
Speaker 1: it is a victory for the Trump administration. It does
Speaker 1: move them one step closer to being able to regulate
Speaker 1: mail-in ballots, but it's only one step, and it's a
Speaker 1: relatively small step. The big steps are ahead of us.
Speaker 2: Is it suspicious that they waited so long to issue
Speaker 2: this decision that just kicks it down the road? In
Speaker 2: her dissent, Katonji Brown Jackson warned that the administration might
Speaker 2: be trying to game the system.
Speaker 1: I don't know if it's suspicious. It's weird. It's almost like,
Speaker 1: why are they even bothering now that there's a rule
Speaker 1: out there? I mean, I think what many scholars and
Speaker 1: observers are concerned about is a kind of a catch-22 happening,
Speaker 1: that the Supreme Court says it was too early for
Speaker 1: the states to sue because it wasn't clear that it
Speaker 1: was going to be a rule. And now that there
Speaker 1: is a rule, it's too late, invoking something known as
Speaker 1: the Purcell principle, which is that federal courts don't get
Speaker 1: involved in challenges to election rules when it's too close
Speaker 1: to an election. And that would be the ultimate irony here,
Speaker 1: is if it was too too soon to sue before
Speaker 1: August 22nd and too late to sue afterwards. But hopefully
Speaker 1: we will not be in that situation. I mean, one
Speaker 1: argument that the plaintiffs will now have, and it's going
Speaker 1: to be both states and I think voting rights organizations,
Speaker 1: is that given the court's decision yesterday, they could not
Speaker 1: have sued any earlier. So at least there's no argument
Speaker 1: that they delayed Sometimes the concern when suits are brought
Speaker 1: close to an election is that the plaintiffs waited too long.
Speaker 1: That's often not the case, but that's the argument that
Speaker 1: sometimes has been raised by the courts. Here you couldn't
Speaker 1: possibly make that argument.
Speaker 2: Do you think that any of those six conservative justices
Speaker 2: actually buy Trump's arguments about mail-in voting and fraud?
Speaker 1: I think it's quite possible. I think for them the
Speaker 1: question is going to have to be, what is the
Speaker 1: authority that the Postal Service has to regulate who the
Speaker 1: states can mail in ballots to? Some of it is
Speaker 1: there are new requirements as to what the envelopes have
Speaker 1: to look like and to have barcodes. And there, I mean,
Speaker 1: to what extent can they regulate the ballots, the ballot
Speaker 1: format that the states use? And to what extent does
Speaker 1: the Postal Service have legal authority to do that? In
Speaker 1: the briefs, the Justice Department sort of said, that the
Speaker 1: Postal Service has imposed special envelopes for the mailing of,
Speaker 1: and get this, human and animal cremains. They're ever being shipped.
Speaker 1: There are special requirements for that and for things that
Speaker 1: are known as inert or replica explosives. And the idea
Speaker 1: that a ballot presents the same kinds of issues as
Speaker 1: human and animal cremains or remains and inert explosives is
Speaker 1: kind of mind-boggling. I mean, in some ways, I think
Speaker 1: the question they're going to have to face first is,
Speaker 1: Does the Postal Service have the authority to do any
Speaker 1: of this? And then we're getting into the burdensomeness and
Speaker 1: the timing of it. I mean, you know, whether there's
Speaker 1: fraud or not, it sort of goes back to, in
Speaker 1: some ways, one of the issues with respect to birthright citizenship,
Speaker 1: and at the very least, Justice Kavanaugh's concurring opinion that
Speaker 1: whether or not the Constitution is relevant here, the president
Speaker 1: didn't have the authority to do this by executive order.
Speaker 1: At the very least, the court would have to look
Speaker 1: at what is the authority of the Postal Service has
Speaker 1: to adopt rules like this. Then we get into the
Speaker 1: constitutional questions of to what extent does that interfere with
Speaker 1: the state's constitutional role in running elections? And then beyond that,
Speaker 1: to what extent, given the timing, is this going to
Speaker 1: interfere with the rights of voters to be able to
Speaker 1: cast ballots under state law? So there's a whole lot
Speaker 1: of questions that are going to have to be addressed
Speaker 1: and This opinion touches on none of that.
Speaker 2: We've talked so many times about, you know, how much
Speaker 2: time it takes the states to get things going for elections.
Speaker 2: And it just seems like there is no possible way
Speaker 2: there is enough time to revamp the procedures in time
Speaker 2: for the midterms. It seems like it's going to just
Speaker 2: cause incredible chaos.
Speaker 1: In some ways, it's actually worse than that because the
Speaker 1: states are our significant actors. It's local governments that actually
Speaker 1: do most of this. city and county boards of elections.
Speaker 1: There's thousands of them across the country with totally different
Speaker 1: levels of resources and funding. If they're going to have
Speaker 1: to start creating special envelopes and compiling certain lists and
Speaker 1: doing things at this late stage, it's going to be
Speaker 1: very difficult. I mean, a state might be able to
Speaker 1: do this, but the elections at the granular level are
Speaker 1: really being run by county and city boards of elections.
Speaker 1: And for some of them, for smaller ones, it's going
Speaker 1: to be incredibly burdensome. I mean, it's hard to imagine
Speaker 1: that it's actually doable at this late stage.
Speaker 2: So, Rich, part of this is that the Department of
Speaker 2: Homeland Security is now going to compile a list of
Speaker 2: citizens in each state who can vote. But the Justice
Speaker 2: Department has actually been suing the states to try to
Speaker 2: get their voter rolls. Where is DHS going to get
Speaker 2: the names for its list of citizens? this seems like
Speaker 2: another dangerous area. How are they going to form that list?
Speaker 1: Right. There is no central list of citizens. And they
Speaker 1: will look to various sources, but there are errors and
Speaker 1: inconsistencies in all the sources, and you have to put
Speaker 1: them all together. It's also a moving target. I mean,
Speaker 1: people become naturalized every day. New people become citizens, and
Speaker 1: people move. And In many states, you are eligible to
Speaker 1: register to vote up to 30 days before the election.
Speaker 1: A few states don't have registration requirements at all or
Speaker 1: have same-day registration. So although the idea here is to
Speaker 1: have something 60 days, there'll be new people eligible almost
Speaker 1: every day. And once you're registered, you should be entitled
Speaker 1: to vote by mail if the state allows it. So
Speaker 1: it's just hard to see how this works, even if
Speaker 1: it's constitutional or even if there's a statutory authorization, which
Speaker 1: I've got my doubts about. It's just hard to see
Speaker 1: how this is going to work in practice and certainly
Speaker 1: how it's going to work this time. It's conceivable that
Speaker 1: if this all goes forward, maybe something could be worked
Speaker 1: out a year from now. I mean, remember, people think
Speaker 1: in terms of 26 and 28, but of course, there
Speaker 1: are elections all the time. There are special elections, you know,
Speaker 1: there are vacancy elections. You know, it's just hard to
Speaker 1: see how this can get done in any reasonable amount
Speaker 1: of time.
Speaker 2: This means if you do it from the executive branch
Speaker 2: in the Postal Service, another president comes in and says,
Speaker 2: I don't want to do it that way. I'm going
Speaker 2: to issue an executive order that we do it this way.
Speaker 1: I mean, that's another possibility, right? The president was trying
Speaker 1: to get the SAVE Act passed and never got passed.
Speaker 1: And he's treating this as an end run around Congress.
Speaker 1: It's not clear he can do that. I mean, voting
Speaker 1: is largely a state-run matter, but also these issues are
Speaker 1: big enough that they seem to be Major questions that
Speaker 1: ought to be resolved by Congress first, and not just
Speaker 1: by a president. As you point out, one president could
Speaker 1: do it one way, another president could do it another way.
Speaker 1: This is a big deal, and it should get the
Speaker 1: buy-in of Congress, which it has not gotten. Presumably, this
Speaker 1: will quickly flip over into a direct challenge to the
Speaker 1: Postal Service rule. I'm sure, I mean, that this will very, very,
Speaker 1: very quickly turn into a case on the merits. I mean,
Speaker 1: the Justice Department was not litigating this on the merits.
Speaker 1: The brief in the Supreme Court was mostly on rightness
Speaker 1: and standing. So we don't really have a ruling on
Speaker 1: the merits of the legality and the constitutionality of the
Speaker 1: Postal Service Rule.
Speaker 2: This may change by the minute. Thanks so much, Rich.
Speaker 2: That's Professor Richard Brafald of Columbia Law School. And that's
Speaker 2: it for this edition of the Bloomberg Law Show. Remember,
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Speaker 2: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.