To hear some prominent Democrats tell it, the justices have already upended the midterms. Senate Minority Leader Chuck Schumer (D-N.Y.) called it a “dagger into the heart of our democracy.” Former House Speaker Nancy Pelosi (D-Calif.) described it as an “insult to the vision of our founders.”
Others in the party were more measured. Sen. Dick Durbin (D-Ill.), the ranking member of the Senate Judiciary Committee, described the ruling as just a “temporary procedural win” for Trump. Norm Eisen, whose group has filed dozens of lawsuits against Trump, told his followers on social media, “Please don't overreact.”
Let’s start with what the Supreme Court actually ruled in its apparent 6-3 vote:
First, the justices said blue states have no legal standing, meaning their right to sue, over Trump’s executive order. The court found the order itself doesn’t cause the states any concrete harm.
Second, the justices ruled the case unripe. They] said any hypothetical injuries wouldn’t happen until the U.S. Postal Service (USPS) implements the president’s directive. The agency’s final plan is being formally published Wednesday.
They did not decide whether who may eventually have standing once USPS moves forward, or if it will be legal.
That’s why some blue states still sound confident, despite their loss.
New York Attorney General Letitia James (D) called the Supreme Court’s decision a “setback.” Washington Attorney General Nick Brown (D) said it merely meant his office must wait “slightly longer.” And others, including Pennsylvania Gov. Josh Shapiro (D), took issue with headlines suggesting the court had greenlit Trump’s policy.
“Not so fast. Today’s SCOTUS decision does NOT deal with the substance of Trump’s unconstitutional Executive Order and does not mean his illegal attempt to restrict mail-in voting will go forward,” Shapiro wrote on social media.
There’s no clear answer yet as to how much of Trump’s policy can be implemented for November’s elections. Expect the next word to come from U.S. District Judge Indira Talwani, an appointee of former President Obama who serves on the federal trial bench in Boston.
While one block was lifted, Trump’s executive order remains blocked nationwide under a second injunction Talwani issued. That case is a separate lawsuit from the states’ case. It’s filed by the League of Women Voters of Massachusetts and wasn’t directly before the Supreme Court, so the block technically remains in effect. The organization says it should stay put.
“We will fight to keep it that way or to secure new relief,” the league said in a statement.
But the Justice Department (DOJ) wants it gone, saying in court filings that “the Supreme Court’s order leaves no room for any further dispute.” The judge had no authority, so she’s compelled to wipe her ruling, DOJ argues.
Talwani has a few options:
Side with Trump: The judge agrees to lift her remaining injunction and refuses requests from both the blue states and the voting group to intervene again. It would pave the way for the Trump administration to implement as much of its policy as it can before mail ballots go out.
Enforce the existing injunction: The judge rules her existing injunction in the voting group’s case withstands the Supreme Court’s decision. She agrees the executive order and any steps to implement it must remain blocked.
Issue a new injunction: The judge agrees her existing injunction must be tossed. However, now that USPS has finalized its new policy, she issues a new block preventing further implementation.
Do nothing: The judge continues to consider the parties’ arguments, leaving her existing injunction in effect.
DOJ demanded Talwani agree to the first option by Tuesday evening, a deadline she declined.
The clock is ticking. Mail ballots in some states begin going out in less than two weeks. And USPS’ final rule implementing Trump’s executive order is slated to be published in the Federal Register on Wednesday, so it can go into effect immediately if the courts get out of the way.
The administration is threatening to immediately start climbing the appellate ladder to the U.S. Court of Appeals for the 1st Circuit if Talwani doesn’t side with them.
That next phase is getting underway just as USPS finalizes its plans for how to implement Trump’s directive. A final rule is slated to be published in the Federal Register on Wednesday, so it can go into effect immediately if the courts get out of the way.
Meanwhile, Democratic Party leaders are making moves of their own. They, too, had filed a legal challenge. But it was brought in the nation’s capital, where judges rejected it. On Tuesday evening, they asking to stop the USPS from carrying out its newly finalized plan.
The makes some previous ballot recommendations required. Mail ballots must include an official logo, unique barcodes with the person’s ZIP code embedded and other specifications. Designs must be submitted to a federal design analyst.
Local or state election officials also must upload voters’ names and addresses into a portal, though it doesn’t collect birthdates or Social Security numbers.
USPS will intervene if a state sends a ballot to someone without uploading their information to the portal. However, the rule stresses the agency isn’t consulting external databases at the Department of Homeland Security or elsewhere. The data comes from state and local election officials.
“The Postal Service will not second-guess the states’ submissions,” the rule reads. “State election officials will thus retain full control over who is permitted to vote in federal elections in their state by U.S. mail.
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