Constitutional law professor explains Supreme Court's ruling on mail-in voting

Geoff Bennett:

The U.S. Supreme Court issued an emergency order yesterday that allows the Trump administration to move forward for now with plans to restrict mail-in voting ahead of the midterm elections. It's a ruling opponents say would bring chaos to the election process only days before ballots in some states are mailed out.

Our White House correspondent, Liz Landers, has more.

Liz Landers:

The ruling allows the administration to proceed with an executive order President Trump signed in March directing the U.S. Postal Service to determine which voters should receive mail-in ballots. It also directs the Department of Homeland Security to build a database of U.S. citizens who are eligible to vote.

There are a lot of moving parts. And here to help explain it all is Steve Vladeck. He's a constitutional law professor at Georgetown University Law Center.

Steve, thank you for joining the program this evening.

Steve Vladeck, Georgetown University Law Center:

Thanks for having me.

Liz Landers:

So there are two lawsuits that are challenging the president's executive order about mail-in ballots. The Supreme Court decision yesterday had to do with a group of states that sued, while the other case that was brought by the League of Women Voters.

What did the Supreme Court's ruling tell the states?

Steve Vladeck:

Yes, so the Supreme Court's ruling only applied, Liz, to the states' lawsuit, and it only said that the states had sued too early because they brought their lawsuit before the U.S. Postal Service issued their final rule, which, of course, they did last Friday. So it was, I think, a win for President Trump, but a very time-limited one.

It didn't say anything about whether the underlying executive order is lawful. It didn't say anything about whether the new Postal Service rule is lawful. That issue is now going to be litigated probably pretty quickly in both of the cases that are back before Judge Talwani in Boston.

Liz Landers:

OK, so let's talk about that executive order. There's another part of President Trump's E.O. that bars the Postal Service from delivering ballots to people who are not on federal lists of eligible voters. And it also will direct the Homeland Security Department to create a list of U.S. citizens who are eligible to vote.

How are these actions affected by the ruling yesterday?

Steve Vladeck:

So, for now, they're not.

I mean, the most important thing that folks should know is that the status quo, which is the executive order is not in effect and the USPS rule is not in effect, is still the status quo. All the Supreme Court did yesterday was pause one of the two injunctions against the executive order. There's still a second injunction blocking the executive order from going into effect.

And, Liz, the rule itself says it can't go into effect until that injunction too is no longer in effect. So we really are not at the end of the story. We're really more in the middle of the story, where there's going to be more litigation and where it's possible that these questions are back in the Supreme Court perhaps by this time next week.

Liz Landers:

You wrote a Substack post about this. And you wrote about the Purcell principle, which is this idea that election rules shouldn't be changed too close to an actual election because it confuses both voters and it makes it difficult for election administrators as well.

We're now 70 days from the midterm Election Day and some states like Minnesota are starting their absentee voting, which includes by mail, on September 18.

We spoke earlier today with Minnesota Secretary of State Steve Simon about how plausible it is to carry out the Postal Service rule change. Here's what he told us.

Steve Simon, Minnesota Secretary of State: I think there is serious doubt about whether there's enough time in the 2026 election to stand up this scheme. That has been imagined by this executive order. Keep in mind, they're talking about a whole new architecture here.

They're talking about some database that Department of Homeland Security is going to create with the help of states. But it's really sort of a black box. We don't know what's inside it. We don't know what their methodology is going to be.

Liz Landers:

What should states do now in the aftermath of this decision?

Steve Vladeck:

So I think, for now, states should keep doing whatever they were doing yesterday. I mean, again, yesterday's decision by the Supreme Court was about as modest a procedural victory for President Trump as the court could have handed down.

I think the real question, Liz, is what happens next. Is the rule that the Postal Service issued last Friday actually going to go into effect? It isn't in effect yet. Is this going to go back to the Supreme Court to decide whether the president really has the authority to unilaterally interfere in how Americans vote? The answer ought to be he doesn't.

Or is it all going to be too late and this is really actually just a fight for what happens in the 2028 election cycle?

I think the most important takeaway from yesterday's ruling is that it doesn't actually resolve any of that and that we're going to have to see what happens in the coming days and perhaps weeks, whether this goes back to the Supreme Court, whether something happens to put this rule into effect that could very well upend a lot of mail-in voting, versus the status quo, which is what the rules were last time.

Liz Landers:

The Supreme Court ruling said in it -- quote -- "Time will tell if the president's executive order was lawful." I thought that was very interesting.

From what you have seen, how do you think the Supreme Court will rule and decide on that?

Steve Vladeck:

Yes, I mean, I think it'll be sooner, rather than later. I mean, I'd be very surprised if we haven't heard something more conclusive from the Supreme Court about whether this executive order and the rule implementing it can go into effect really, Liz, by the end of next week. It's going to move that quickly.

Liz Landers:

And final question for you, should voters feel confident about being able to vote by mail this year?

Steve Vladeck:

So I think they should for now, but I also think voters should be diligent, and voters should check in with their local election officials, with their secretaries of state, and voters should be watching the news, because, unfortunately, the reality of the times we live in is that confidence today could turn into instability tomorrow.

We're not there yet, but that doesn't mean that we're going to be all the way home to Election Day.

Liz Landers:

Steve Vladeck, thank you so much for your time this evening.

Steve Vladeck:

Thank you.