The U.S. Constitution gives control of elections to the states and Congress so that no president can reach into your mailbox and decide whether your vote counts. Yesterday, the Supreme Court’s majority left the mail flap hanging open for Donald Trump’s hand.
In an unsigned order issued over the objections of all three liberal justices, the Court lifted a lower-court block on Trump’s breathtaking executive order that would allow him to seize control of mail-in voting across America. The order, which was issued earlier this year and immediately derided by observers as unconstitutional, directs federal agencies to create a “citizenship list” using Department of Homeland Security (DHS) databases that are already riddled with errors. Then it bars the U.S. Postal Service from delivering mail ballots to anyone not on those lists and creates a system for federal authorities to track individual ballots as they make their way through the mail.
The order is just as Orwellian as it sounds. No president — Democrat or Republican — should ever have the unilateral authority to oversee a master voter list (or a voting blacklist) and the ability to pluck votes it doesn’t want delivered out of the mail. Such power could corrode democracy to its core. Yet that is what the Donald J. Trump administration is trying to do.
None of America’s founding fathers imagined an American president holding anything close to this type of power. In fact, they designed the Constitution specifically to prevent it. Article I gives election administration to the states, with Congress setting national standards. You can go read it for yourself right now. The president appears nowhere in that sentence, which is why a federal judge had halted Trump’s executive order earlier this year.
But yesterday the Supreme Court lifted the hold. While it did not rule Trump’s order is legal, the majority allowed the administration to begin moving forward with its plans. This was ostensibly on technical grounds. The Court basically said that the states sued too early (before the Trump administration’s implementing rules were final) and then offered up what might be one of the least reassuring sentences ever issued by the Supreme Court in the face of an obviously unconstitutional power play:
“The Court’s disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell.”
Time will tell. That’s what you’re going to say two months before an election? In the face of a would-be despot trying to seize Americans’ ballots?
Justice Ketanji Brown Jackson was damning in her dissent, writing that the ruling “needlessly injects chaos and uncertainty into the upcoming midterm elections” and “lets another shoe drop in the Kafkaesque nightmare” facing election plaintiffs, who are effectively being told to wait until a crime has been committed against them when it’s clear the criminal is holding a knife and marching in their direction.
What’s worse, Trump’s team was already barreling forward to implement the order before the Court even gave them permission to keep going. Late Friday night, Trump’s Postal Service quietly finalized its ballot-tracking plans in defiance of two federal injunctions. So they spent the weekend openly defying court orders… until the Supreme Court handed them a hall pass on Monday.
But the story is far from over. A second federal court order (won by the League of Women Voters and allied groups) still blocks some of the provisions of Trump’s executive order, and the justices declined the administration’s request to kill it. Judge Indira Talwani has ordered the government to answer by Tuesday morning (today) for the fact that they went ahead and published the USPS rule despite having been under an order to halt.
The good news is that there are still federal judges and world-class lawyers standing between the Postal Service and your ballot.
In April, DEFIANCE.org announced funding for one of the main organizations fighting this executive order, Campaign Legal Center, and its team of more than 110 lawyers (including DOJ election attorneys Trump fired). They’ve filed lawsuits across the country against Trump’s election schemes. So we stepped in to support their lawsuit against this executive order and to fight back against the lawless notion that the president can decide who gets to vote — and take their ballots out of the mail if he doesn’t want them delivered.
This month, CLC put 56 former state and federal judges before the Supreme Court urging it to reject this scheme, and its challenge to the order is ongoing. CLC head Trevor Potter had this to say yesterday in the wake of the Court’s decision:
“This ruling does not remove anyone from the voter rolls, and Americans are still able to vote by mail according to the laws of their respective states.” He further pledged that CLC “will immediately challenge any and all actions” to carry out the order, starting with the plans the Postal Service intends to finalize this week.
Trevor is correct that your right to vote by mail has not been canceled, and your state’s rules still govern. So what should you do while this fight plays out? Request your ballot early. Return it early, in person or by drop box if you can. And check out our checklist for the midterms at defiance.org/midterms.
A president who wants to hijack our elections just got one step closer. If he succeeds, he and future presidents will wield dictatorial powers to control voting in America.
Rest assured, we’re going to fight this like hell because that’s what the people who fought and died for this country did. And we will not let their sacrifice be in vain.
Your friend, in defiance,
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