The Court's New "Too Late" Rule for Elections

MayaOh.

GrantOkay, so get this. Yesterday, we were still scratching our heads.

MayaAnd today, the Supreme Court just flipped the table.

GrantOne day, one single day after we called last week's ruling the one that answered nothing.

MayaThis is Power Check. I'm Grant.

GrantI'm Maya, and dude, the whiplash on this one is real.

MayaSeven to two, the Trump administration wanted USPS to enforce a new mail ballot rule before the midterms.

GrantAnd the court said no, fast.

MayaCNN reported the order was unsigned, three sentences. That's it.

GrantThree sentences to blow up months of arguing about standing and ripeness?

MayaAlito and Thomas dissented. Everyone else signed on to shut it down.

GrantWait, three sentences total, or three sentences plus a bunch of separate opinions?

MayaJust the order itself, three sentences. The real meat is in a concurrence we'll get to.

GrantOoh, foreshadowing. Okay, I'm hooked.

MayaThere's also this appointee wrinkle we need to sort through before the episode's over.

GrantTwo judges, two totally different legal roads, same finish line.

MayaExactly. So the question isn't just what the order says-

GrantIt's how nine, well, seven justices got there without fighting.

MayaLet's start with what actually made it seven to two instead of a split decision. Okay, so seven justices voted no, two voted yes. But a vote count is just a number. It doesn't tell you the reasoning.

GrantRight, and reasoning is everything here. NPR's write-up on this was pretty blunt. The administration wanted USPS to enforce the new rule for the midterms, and the court said no.

MayaJust no? For now. The states that sued got what they wanted, at least for this election cycle.

GrantAxios called it a win for voting rights groups and the states that brought the challenge, which, yeah, if you're on that side, you're celebrating tonight.

MayaBut here's what's bugging me about the seven-two number.

GrantGo on.

MayaBecause seven justices signing on to an unsigned order doesn't mean seven justices agree on why. It means seven justices agree on the result and disagree, maybe sharply, on the path.

GrantSo the two-thirds majority could actually be, what, three different coalitions mashed into one number?

MayaCould be. That's the danger of reading a vote count like a scoreboard.

GrantI do love a scoreboard, though.

MayaSure, but scoreboards don't explain calls.

GrantOkay, fair. So if the number's basically decoration, where's the actual legal weight sitting?

MayaIn the opinions nobody reads past the headline.

GrantWhich is most people.

MayaMost people, yeah. There's an order, and then there's at least one justice who felt like they had to explain themselves separately.

GrantWait, can we back up? What does unsigned even mean for an order like this?

MayaIt means the majority didn't put a name on it. No single justice claims authorship, which is exactly what the court does on these emergency docket calls when it wants the ruling to look institutional rather than personal.

GrantSo it's deliberately anonymous.

MayaRight. Nobody's individual reasoning's exposed in the order itself. That's exactly why the concurrence matters so much. It's the only place any justice actually explains themselves on the record.

GrantAnd that's usually the giveaway that the real fight happens somewhere the vote count doesn't show.

MayaWhen a justice votes with the majority but still writes 40 pages explaining why, that's not decoration. That's the part doing the actual legal work going forward.

GrantSo the seven-two isn't the story.

MayaIt's the cover page. The story's in what got written underneath it. Okay, so the concurrence, Kavanaugh writes it, and it's doing all the actual work in this case.

GrantWait for it, because I heard he basically said the rule is fine, just late?

MayaPretty much. CNN reports Kavanaugh's concurrence says election officials do not have sufficient time to reasonably implement the rule.

GrantNot that it's illegal, just that the clock ran out.

MayaRight, and that's a totally different kind of ruling than people think they're getting.

GrantWait, so USPS could try this again in two years and win?

MayaThat's the part that got me. Fox News has the fuller language. Kavanaugh writes there's at least a fair prospect USPS actually has the statutory authority to issue the rule in the first place.

GrantHold on. He thinks they're allowed to do it?

MayaHe thinks they might be allowed to do it. He's not deciding that today.

GrantSo this isn't a ruling on the rule. It's a ruling on the calendar.

MayaExactly, and that's the seed of something bigger, a midterms case decided almost entirely on timing.

GrantCynically convenient? You get to duck the hard question and still look decisive.

MayaIt's efficient. I'll give him that. You don't have to settle whether USPS can regulate ballot deadlines. You just say not now, not this close to voting.

GrantGive me an actual example, though. What does too late to implement look like on the ground, not just on paper?

MayaThink about ballots that are already printed and mailed under the old rules. You can't retroactively reprint millions of ballots two weeks before an election without confusing voters or blowing local election office budgets.

GrantSo it's not abstract. It's literally printing presses and postage that already went out the door.

MayaExactly, and that's the practical reality Kavanaugh's line is gesturing at, even if he doesn't spell out the printing logistics himself.

GrantWhich sounds fine until someone tries to use too close to the election as a permanent excuse.

MayaThat's the thing nobody's saying out loud yet. Is this a one-time fix or a rule the court just built for itself?

GrantQuickly, and who already landed there before Kavanaugh even picked up his pen?

MayaFunny you ask. Two district judges got to basically the same place months before this, and they didn't even use the same law to do it.

GrantTwo totally different roads, same stop sign.

MayaOne in Boston, one in DC, completely different reasoning.

GrantOkay, now I actually wanna know who these judges are.

MayaSo walk into the DC side first. That's Judge Nichols.

GrantRight, the one who didn't even touch the Constitution.

MayaExactly. Axios laid this out. Nichols ruled the whole thing on the Postal Service Reorganization Act. USPS just doesn't have the authority to do what it tried to do, full stop.

GrantSo no big rights arguments, no First Amendment, none of that.

MayaNone of it. He stayed narrow on purpose. Election Law blog, that's Rick Hasen's site, made the same point that Nichols kept it strictly statutory. USPS overstepped its own operating rules.

GrantOkay, so that's one lane. Boring plumbing, basically. An agency doing something its charter doesn't let it do.

MayaRight, but boring plumbing that still kills the rule nationwide because USPS is USPS.

GrantNow, give me Boston.

MayaBoston's Judge Talwani, and this is where the brief gets interesting because she didn't stop at the statute.

GrantShe went further?

MayaWay further. Same Axios piece. Talwani found the Postal Reorganization Act problem, too, but she also found constitutional violations on top of it.

GrantWait, so one judge says you broke your own rule book, and the other says you broke your own rule book and also the Constitution?

MayaThat's the shape of it. Hasen's writeup frames it the same way. Nichols narrow and statutory, Talwani broader, layering a constitutional claim over the statutory one.

GrantAnd they still land in the same place?

MayaSame outcome, different depth. One judge builds a fence. The other builds a fence and then salts the earth behind it.

GrantOkay, dramatic, but it matters, right? Because if the Supreme Court wanted the safest possible ruling-

MayaIt grabs the narrow one, and that's basically what Kavanaugh does. He doesn't need the constitutional stuff. The statutory problem alone is enough to freeze this thing.

GrantSo Talwani's extra work kind of doesn't get used?

MayaNot by the majority, no. It's sitting there if anyone wants it later, but the order we already went through doesn't need it.

GrantTwo judges, two different sized hammers, same nail.

MayaSure. Go with that.

GrantI will. Now, you've been holding something back on Talwani.

MayaI have. Because in a lot of the coverage, and honestly in how we've been talking about her, she keeps getting labeled a Biden appointee.

GrantWhich, wait, is that not right?

MayaIt's not sitting well with me. I wanna actually check that before we build anything else on top of it because if the appointee framing is wrong, some of the commentary about this being an Obama judge versus Trump judge split falls apart.

GrantHold on. You're saying we might have said something inaccurate on air?

MayaI'm saying it's worth stopping and checking before we go one more sentence.

GrantOkay, then let's actually check it. Okay, so remember we said Talwani got tagged as a Biden appointee?

MayaYeah, from the brief itself.

GrantTurns out that's wrong.

MayaWait, what?

GrantOne report we found says Talwani was actually appointed by President Obama, not Biden.

MayaObama? Not even close to the same era.

GrantRight. We're talking almost a decade earlier.

MayaSo the whole thing about a Biden judge quietly reshaping mail rules for his own party's benefit-

GrantDoesn't hold up, no

Maya... Good thing we're saying it out loud instead of just moving on.

GrantHow does a mix-up like that even happen, though? Biden and Obama aren't exactly interchangeable.

MayaProbably just shorthand that calcified. People hear Democratic appointee once, and it drifts into Biden appointee because that's the administration everyone's currently thinking about.

GrantWhich matters here specifically because the whole same administration protecting its own rule narrative depends on the date being right.

MayaRight. An Obama appointment puts her on the bench nearly a decade before any of this litigation existed, so there's no way to read it as a sitting president's judge running interference for him.

GrantI mean, it changes how you read the case. If she's an Obama appointee and Nichols in DC is Trump's guy and they land in the same place-

MayaThat's not two judges rowing the same political boat

Grant... Exactly. That's a Boston judge and a DC judge from opposite ends of the bench agreeing the rule can't be implemented right now.

MayaAnd they got there different ways. One's narrow, statute only. One stacks constitutional stuff on top. Different paths, same red light.

GrantWhich actually makes the outcome more interesting, not less. If this were just partisan judges protecting their side, you'd expect it to fall apart on appeal.

MayaBut it didn't. Seven justices signed on to the timing problem.

GrantKavanaugh's whole framing survives contact with an Obama judge and a Trump judge agreeing on the underlying issue.

MayaThat's the actual headline, not who appointed who.

GrantRight. The appointee detail was a distraction we handed you and then had to take back.

MayaWhich credit where due is better than pretending it didn't happen.

GrantAlways fix it on air.

MayaSo strip out party lines entirely. What you've got left is two judges, different reasoning, same conclusion. This rule can't be implemented fairly this close to the midterms, and that convergence is what actually matters here.

GrantIt's not a partisan split masquerading as law. It's something closer to consensus forming from two directions at once.

MayaWhich is exactly why the two justices who dissented are worth sitting with.

GrantBecause if everyone else bought the timing argument-

MayaSomebody clearly didn't

Grant... Two justices looked at the same conversions we just laid out and still said no.

MayaThat's not a small thing to brush past.

GrantNo. Let's go there next

MayaSo the other two votes in this thing, Alito and Thomas, they didn't just dissent quietly.

GrantNo, Alito actually wrote it out. Fox News got the fuller language.

MayaWhat's his argument?

GrantIrreparable harm. Alito's dissent argues the government suffers real, lasting harm from the delay itself, not from the rule being wrong, from the rule being blocked.

MayaHuh.

GrantYeah, so flip it around. Kavanaugh says implementation is too rushed to be fair. Alito says blocking it is too costly to just sit with.

MayaBut those aren't really opposite positions, though. They're both making a timing argument.

GrantRight. One says the clock's too short to act. One says the clock's too short to wait.

MayaSame clock, different alarm.

GrantSure, let's go with that.

MayaBut it's worth sitting with because if you take Alito's harm argument seriously, USPS just eats the cost of not enforcing a rule the majority admits might be lawful.

GrantFor one election cycle.

MayaFor one election cycle, but that's the trade nobody on the majority side had to defend on the merits.

GrantBut is Alito's harm argument actually persuasive, or is it just the standard trust us, deadlines matter argument the government makes every time it loses?

MayaIt's a real cost. Postal logistics do have lead times, but he never engages with why those costs are the state's problem to eat instead of the administration's for rolling out a rule this close to an election in the first place.

GrantMeanwhile, get this, Letitia James, the New York Attorney General, she came out and called the ruling a win for voters.

MayaOf course she did.

GrantI mean, she's not wrong that it keeps the old rules in place for now.

MayaSure, but calling it a win for voters skips right past the actual legal question, which is whether USPS even gets to do this later.

GrantWhich nobody answered.

MayaNobody answered. That's the trade. Alito's saying the harm is real and immediate. The majority's saying fine, but not this close to an election.

GrantAnd the court never picked a side on who's actually right about the harm.

MayaThey picked a side on the calendar.

GrantWhich honestly raises something bigger than this one case.

MayaYeah, because if timing alone can override a rule the court thinks might be legal, that's not really about mail ballots anymore.

GrantThat's a tool.

MayaA tool that survives this specific fight.

GrantSo did the court just build something that outlives the case it was written for?

MayaThat's the question we've gotta sit with next. So here's the real question hanging over this all. Is too late to implement going to sit right next to Purcell as its own timing rule, or did the court just improvise it for one case?

GrantOoh, okay, that's the actual stakes question, isn't it?

MayaIt is, because if it's a standing doctrine, every future rule change close to an election gets measured against it.

GrantAnd if it's a one-off?

MayaThen this whole thing evaporates the second USPS tries again with better timing.

GrantAnd in the meantime, states and election officials are stuck guessing which one it is.

MayaRight. They've got no way of knowing if they're planning around a permanent rule or temporary fluke.

GrantWhich, plot twist, might already be the plan. CNN reports Kavanaugh's concurrence may signal he's gettable for the administration on this exact issue at a future cycle.

MayaWait, gettable how?

GrantMeaning he didn't say the rule is illegal. He said it's late, different case, earlier calendar, and you could see him voting the other way.

MayaThat's not a door closing. That's a door left open a crack.

GrantExactly. So next midterm, off cycle, 18 months out, nobody's stopping USPS from trying this again.

MayaWhich means the fight doesn't end here. It just resets the clock.

GrantThe sequel nobody asked for.

MayaRight. Mail ballot rule part two.

GrantBut seriously, that's the thing about a timing rule instead of a merits rule. It doesn't settle anything. It just tells you when you're allowed to ask the question again.

MayaAnd courts kinda like that, honestly. It's a narrower ruling, less exposure.

GrantLower risk for them, sure. Higher risk for anyone trying to plan an election around it.

MayaSo where does that leave us for the verdict?

GrantOkay, Check or no Check?

MayaI'll go first. Check this round. The court stopped a rule change from landing days before people vote. That's the system working exactly the way it's supposed to.

GrantAgreed for this round, but I want the asterisk in there.

MayaGo on.

GrantOkay. The Check held because the timing was bad, not because a judge decided the rule was wrong. Try this again in March instead of September, and we might be having a totally different conversation.

MayaThat's fair. So it's less check and more check conditional on the calendar.

GrantWhich honestly is might be the most 2024 sentence we've said all season.

MayaPut it on a shirt.

GrantSo for our listeners keeping score, no fix to the underlying question, no ruling on USPS's authority, just a green light this time and a maybe next time.

MayaAnd that maybe is exactly what we'll be watching for whenever this comes back around.

GrantBecause it will come back around.

MayaIt always does.

GrantAll right, that's the round.

MayaLet's wrap it and tell people what's coming next.

GrantQuick recap before we go. The Court blocked the rule for these midterms, but left the door wide open on whether USPS actually gets to run this again once the calendar looks better for them.

MayaWhich means spreadsheet or no spreadsheet, we're probably back here before the next election cycle wraps.

GrantProbably sooner than you'd like. These things never actually stay settled for long.

MayaAt this point, I should just keep a standing folder for this case.

GrantEpisode six probably, knowing this fight.

MayaYou know what my spreadsheets don't have a column for?

GrantWhat?

MayaThe time it takes nine justices to decide if a mail rule is too late. There's no formula for that.

GrantAdd it.

MayaI track purchase price, holding costs, resale, every car I've owned. Doesn't help me one bit with a concurrence.

GrantDifferent market, Grant.

MayaApparently a much, much slower one and with worse resale value.

GrantIf this rattled around your head at all this week, the timing, the two judges, the flip, send it to someone who actually cares about this stuff.

MayaSomeone who will argue with you about it, ideally, and maybe change your mind on the way.

GrantFollow the show while you're at it, and if you've got 30 seconds, leave us a review. It actually helps more than people assume.

MayaIt does, more than people think.

GrantWe'll be watching for whatever comes back around on this.

MayaSame fight, new calendar. See you next time.