The Mail Ballot Case Hits Purcell

GrantSolicitor General Sauer told the justices this week that Judge Talwani's new ruling confirms the urgent need for the court to grant the stay and to explain its reasoning for doing so.

MayaWait, wait. He's not just asking for the win. He wants the court to show its work?

GrantMm-hmm. That's the strange part. You don't usually see a filing ask the justices to justify themselves.

MayaGrant, is that normal for an emergency stay request?

GrantNot really. It tells you Sauer's worried about more than just this one case.

MayaThat tracks. Okay, so we're stepping back today. The mail ballot fight, the emergency docket, the whole structure underneath this thing.

GrantRight. Before anyone argues whether Talwani's order should stand, we walk through what Executive Order number fourteen three nine nine actually does.

MayaAnd how close this is cutting to the midterms.

GrantRight.

MayaThat calendar math alone is wild.

GrantWe're also getting into the Purcell principle, a twenty-year-old rule about courts staying out of late election changes.

MayaBelatedly, apparently nobody agrees on when it even kicks in.

GrantConvenient for whoever's holding the power at the time.

MayaExactly. And later, we're delivering our own verdicts on whether the courts are actually checking anyone here.

GrantTwo different answers. Stick around for that one.

MayaBut first, Sauer's request. Grant, walk me through why this one's got everyone's attention.

GrantHuh?

MayaOkay, so get this. The same administration that's written unexplained emergency orders for years just asked the Supreme Court to explain itself.

GrantCome again?

MayaSolicitor General John Sauer's brief says it's critical that the court act promptly on the pending request. That's straight from SCOTUSblog's coverage on August twelfth.

GrantThe mail ballot case.

MayaRight. But Democracy Docket and MS Now both flagged something weirder buried in there. Sauer isn't just asking for a stay. He's asking the justices to write out their reasoning if they grant it.

GrantThe party that's leaned on the shadow docket for years wants a paper trail now.

MayaI know. Suddenly everybody wants their homework shown.

GrantThere is a reason, though. Sauer's warning is specific. Without a fast ruling, the lower court's order will, quote, "Run out the clock on implementing Section three before November."

MayaRun out the clock. That's the whole strategy in four words, isn't it?

GrantBasically.

MayaMm-hmm.

GrantEvery week this sits with Judge Talwani's injunction in place is a week the government can't do what it wants at the Postal Service.

MayaOkay, but why does he need the court's reasoning specifically? Why not just take the win?

GrantBecause if the court grants a stay with no opinion, lower courts read it as narrow, maybe a fluke. A written rationale becomes a rule other judges have to follow.

MayaOh, so this isn't really about November. It's about building a precedent while everyone's watching the calendar?

GrantThat's the read. The filing landed July twenty-seventh.

MayaWow.

GrantAnd it's been fully briefed for over a week.

MayaAnd the midterms are what? Under three months out now?

GrantNovember third, less than ninety days, and mail voting isn't a footnote. By most tallies, you're looking at something like forty-eight million mail ballots in twenty twenty-four, thirty-five million in twenty twenty-two.

MayaThat's not a rounding error. That's a whole method of voting.

GrantWhich is why act properly isn't just lawyer language. Every day the stay sits unresolved is a day closer to states printing ballots under rules nobody's confirmed.

MayaSo what does Section three even order the Postal Service to do physically? Because everyone's arguing about the clock, and nobody's read the instructions.

GrantThat's the part worth actually looking at. Before anyone argues legitimacy, let's read the actual order. I don't bid on a car without pulling the title first.

MayaOkay. Due diligence guy. Walk me through it.

GrantSection three works like this. States hand USPS a list of everyone who requested a mail ballot. USPS prints a barcode tied to that specific voter on the envelope.

MayaAnd if there's no barcode match?

GrantNo delivery. VoteBeats coverage of the injunction lays out that exact mechanism, refusal to transmit for anyone not on the list.

MayaUgh, so that's not a delay. That's a ballot that just stops existing?

GrantThat's the read, and it's not new. This traces back to the March order, which also told DHS to build a citizenship verified voter list.

MayaVerified how? Cross-checked against what?

GrantCyberScoops' reporting on the second injunction touches that. DHS was supposed to feed that list in, and states had sixty days before November third to tell USPS whether they're even participating.

MayaSixty days before the third. We're inside that window right now.

GrantWe are.

MayaSo somebody in, say, Ohio mails their ballot back, and the county never submitted the list.

GrantIt sits or it's returned. Either way, the voter doesn't find out until it's too late to fix.

MayaThat's unsettling when you put it that plainly.

GrantHere's what the administration says back, though. Democracy Docket's reporting flags their framing. This is an intra-branch directive, president telling his own agencies what to do. No independent force on state election law yet.

MayaSo we're not regulating elections. We're just telling the mail carrier what to deliver.

GrantBasically. Sauer's brief treats it as inert until USPS actually acts on it.

MayaExcept the mail carrier is the only way half these ballots move.

GrantWhich is the whole fight in one sentence.

MayaAnd a judge already decided that fight, didn't she?

GrantJudge Talwani did, twice.

MayaChanges nothing yet is about to run into a judge who says it changes already plenty.

GrantSo while everyone's watching the Supreme Court docket, there's a second front nobody's talking about.

MayaWait, a second injunction? Same judge?

GrantSame judge, different case. League of Women Voters versus Trump, and this one's nationwide, not the twenty-three state patch job.

MayaNationwide? So even if the justices act on the first case-

GrantThis one's still standing. Independent block, independent record.

MayaOkay, walk me through her reasoning, because nationwide is a big word for one district judge.

GrantTalwani's logic is pretty blunt. She wrote, "The executive branch has no authority to regulate elections," full stop, and that no law Congress passed hands USPS control over mail ballots.

MayaSo Congress never gave the post office this job in the first place?

GrantThat's her read. No delegation, no power.

MayaAnd the government's defense?

GrantThey didn't really mount one. She noted they declined to defend the order's constitutionality on the merits and leaned entirely on timing, said it's too early to sue.

MayaToo early? We're inside ninety days of the midterms.

GrantWhich is exactly what she said back. Millions of people plan their ballots around mail voting. Waiting for clarity isn't a luxury at that point.

MayaSo flip it around for me. First, they argued it's too soon because nothing's implemented yet.

GrantRight. The ripeness argument from the first case.

MayaAnd now Talwani's saying it's basically too late to wait. Sue too early, get bounced. Sue on the clock, get told you should have moved sooner.

GrantThat's the bind, and it's not new. The First Circuit already lived through it. CNBC reported that panel refused two to one on July twenty-fifth to lift her original June injunction covering the twenty-three states and DC.

MayaSo that's strike two for the administration in the lower courts.

GrantTwo rulings, two judges saying the theory doesn't hold up yet. From where I sit, that's the system doing exactly what it's built to do. A claim gets tested, a court rules, an appeal follows.

MayaSure, but doing what it's built to do assumes the clock cooperates, and right now the clock is the whole fight.

GrantWhich is funny because there's a doctrine built entirely around that clock, just pointed the other direction.

MayaPointed at courts, not the executive.

GrantExactly. Purcell.

MayaWith that catch-22 fresh in mind, let's talk about the rule creating it. Grant, what actually is Purcell?

GrantPurcell versus Gonzalez, 2006, came out of the emergency docket. Same one we've been talking about all episode.

MayaWait, this whole doctrine was born on the emergency docket?

GrantYep. The core idea, courts shouldn't change election rules right before an election. Confuses voters, confuses officials.

MayaOkay, that sounds reasonable on paper.

GrantIt does, until you ask two questions nobody's answered in twenty years: what counts as a change and how close to an election is too close?

MayaSo no definition at all?

GrantNone. CNN's reporting on this points out something specific. Purcell has never been tested in a case where the federal government itself is the one changing the rules.

MayaEvery other time it's a court stepping in on a state law.

GrantRight. This time, the president signs an order, then argues the courts can't touch it because it's too close to November.

MayaSo the guy making the change gets to use the anti-change rule against the referee?

GrantThat's the position, and is why the challenging states pushed back hard in their filing, Democracy Docket covered this, asking the justices to either deny the stay outright or say clearly the administration can't invoke Purcell later to dodge review.

MayaBecause otherwise they run the clock, then claim it's too late for anyone to rule.

GrantExactly the trap. Argue too early, judges say it's not ripe. Argue too late, they say Purcell bars relief.

MayaSo the rule doesn't have a defined trigger.

GrantIt gets pulled by whoever's holding it when the clock runs out. Twenty years, and the courts never had to say what starts the countdown.

MayaAnd there's an election in November.

GrantThere's always an election in November. That's the design flaw nobody wanted to touch, until now.

MayaAnd apparently, this isn't the only emergency fight the justices are juggling this summer.

GrantNot close to it. Shifting gears, while we're all watching the ballot fight, the Court's got the White House ballroom demolition sitting on that same emergency docket.

MayaWait, the actual construction, like the building?

GrantYeah. SCOTUSblog reported this week that Solicitor General Sauer told the Justices the project's-

MayaWow

Grant... sixty-five percent complete, a two hundred and fifty person crew working all the clock, basically too far along to stop now.

MayaWe built too much, so let us finish. Bold legal strategy?

GrantSame move he's running on the ballot order. Run the clock, then argue undoing it causes more harm than letting it ride.

MayaHuh. Two different fights, same play.

GrantSame docket, same term, same six-justice majority deciding both.

MayaAnd CNN's reporting on this ties it together. How that six-three majority handles its own Purcell rule here-

GrantMm-hmm

Maya... could shape the wave of election litigation headed at the Court this fall straight through 2028.

GrantBecause if they duck giving reasons now-

MayaThey've got nothing for the next one hundred cases that look just like it

Grant... Exactly. A one-line order resolves this case. It doesn't tell some district judge in Ohio what too close actually means the next time around.

MayaSo this accountability problem isn't really about ballots anymore.

GrantIt's about whether the emergency docket can function as precedent at all, or just as a favor to whoever files first.

MayaWhich is exactly the question we're about to answer.

GrantVerdict time.

MayaOkay, verdict time. Is this system actually checking power or just the last one standing?

GrantBig difference.

MayaMy call? Check. Barely. Talwani ruled, the First Circuit backed her two to one. That's two separate courts saying no, that's the machine working.

GrantWorking or just running? Because the Supreme Court hasn't ruled on anything yet.

MayaRight, but silence from one branch doesn't erase what the other two did.

GrantFair. My verdict's harsher. No check. Not from the top anyway.

MayaNo check at all?

GrantAn emergency order with zero reasoning isn't review, it's a coin flip with a robe on. I'd change my mind the second they attach an opinion, even a short one, to whatever they do here.

MayaSo what do people actually watch for?

GrantSixty days out from November third, that's around September fourth. If the court's still silent by then, Sauer's clock argument basically wins by default.

MayaAnd thirty days out, early October, that's when election officials need final printing and mailing plans locked. If there's no ruling by then, county clerks are making the call themselves.

GrantWhich means the actual voting rules get decided by silence, not by written decision.

MayaThat's the part that should bother people.

GrantIt bothers me. A court that won't explain itself in August isn't going to explain itself in October when it matters most.

MayaSo watch the calendar, not the headlines.

GrantWatch both, but the calendar doesn't lie. So that's the rundown. Section Three, the barcode fight and the Purcell principle sitting right in the middle of it.

MayaThe line that stuck with me, no barcode match, no delivery. That's not paperwork.

GrantMm-hmm.

MayaThat's someone's ballot just gone.

GrantRight, and that's the real tension. A doctrine built to stop last-minute chaos now being used to cause some.

MayaMeanwhile, the Court still hasn't explained why. Grant thinks that's dangerous. I think it's just Tuesday for this bench.

GrantFair enough. September and early October will tell us who's right.

MayaIf this helped you understand how any of this actually works, send it to one person who'd get something out of it.

GrantAnd follow the show. Leave a review. It really helps people find us.

MayaThanks for spending this hour with us.

GrantWe'll see you next week.