The Mail Ballot Order Hits the Emergency Docket

MayaIt does not change anything at all about elections in any state that Solicitor General John Sauer telling the Supreme Court his own client's order is basically harmless.

GrantHarmless enough that USPS is already sketching a citizenship check system around it. CNBC clocked the filing at 99 days before the midterms and Justice Ketanji Brown Jackson didn't hand him the immediate stay he wanted.

MayaShe gave the states until Monday to answer instead.

GrantOn this clock Monday might as well be next year. Hey everyone, we're back with Power Check.

MayaGood to be here, Maya.

GrantIf any of this sounds familiar, it's because we covered the USPS proposal a few weeks back.

MayaConsider this the sequel—same order, bigger stage.

GrantTo day we trace the chain; Judge Talwani's ruling; a split First Circuit and a DC Circuit that called a companion suit too early.

MayaThen DOJ election monitors landing in six states—and a fight over voter rolls out of Minnesota.

GrantWow! Okay, okay, okay—and we close with our check or no check verdict.

MayaGrades for the courts, Grades for Congress—assuming Congress shows up at all.

GrantSo, Grant, walk me through what Sauer actually argued, because that one line is carrying a lot of weight.

MayaIt's carrying the whole case on its back. The order does not, by its own force, change how any ballot is collected anywhere. That Solicitor General John Sauer telling the justices this week the mail voting order is just an internal memo to federal agencies. An internal memo, right. I've heard that same framing when the service history doesn't match the story.

GrantThat's the argument! CNN reported Sauer's framing on July twenty-seventh: "Not a new voting rule, just guidance to subordinates.

MayaGuidance that tells USPS how to handle ballots. Well, it's three months out. I've had sellers call a car mechanically sound with a rebuilt title—same instinct.

GrantFair. OK, here's the clock though, because this is the part that actually matters: the emergency application landed with roughly ninety-nine days left before November third.

MayaNinety-nine days-that's thin runway when you're trying to stand up a national ballot screening system.

GrantRight. And just as Ketanji Brown Jackson, who handled who handles emergency requests out of that circuit, wouldn't grant an immediate stay. She gave the plaintiff states until Monday to respond.

Speaker 3So nobody's decided anything, she just set a deadline.

GrantExactly. And that's the sequel to the fight everyone's been watching. Last round was whether the president can rewrite mail voting by order. This round is whether courts can stop it before ballots go to the printer.

Speaker 3That's the more interesting question, honestly, because if the answer's no-

GrantThen it doesn't matter who's right on the merits.

Speaker 3So the lawyer says it changes nothing-what's actually inside that order that everyone's really fighting over?

GrantOkay, so what's inside this order that gets agencies to actually do something?

MayaSo I pull the text like it's a due diligence file. Executive Order 14499, signed March 31st. Title's a mouthful, Ensuring Citizenship Verification and Integrity in Federal Elections.

GrantCatchy.

MayaSCOTUSblog and Courthouse News both walk through it the same way. DHS and SSA compile citizen... Citizens list, state by state; then, USPS is told to write delivery rules so ballots only go to names on those lists.

GrantWait, the Postal Service decides who's a citizen?

MayaNo; USPS just enforces the list (DHS and SSA build it), and Courthouse News flags three more pieces: tracking barcodes on every ballot envelope, the option to pour federal funds from states that don't

Speaker 4like the new system, and the option to pour federal funds from states that don't like the new system.

Mayathat don't comply and prosecuting local election officials who mail ballots to people not on the list.

GrantProsecuting officials for following their own state's rules?

MayaThat's the leverage play. CNN's reporting frames it the same way: compliance isn't optional if your county depends on federal money.

GrantSo who actually builds this list, though? Because SSA data is notoriously messy. I see. People change names, move states, die, and stay on records for years. It's one of those things that's maddening when you look at it.

MayaNobody's answered that yet. That's the part everyone glosses over.

GrantOf course it is.

MayaBut here's what already happened with it. Democracy Docket and SCOTUSblog both report that Judge Indira Talwani in Boston ruled on June 25th that the mail ballot and citizenship list List provisions are void; she said the President exceeded his authority.

GrantVoid, full stop.

MayaBlocked for the November third election in the twenty-three states plus DC that sued.

GrantTwenty-three states! that's basically half the country opting out before this thing even runs.

MayaWhich gets you to the constitutional question underneath all of it: the elections clause hands this job to state legislatures, with Congress able to override. The president isn't mentioned in it-not once.

GrantSo on paper, the guy signing the order isn't even a little The legal player

MayaThat's Talwani's read, and that's why this keeps landing back at the Supreme Court instead of just happening.

GrantWhich is wild, because Sauer told the justices this changes nothing procedurally.

MayaRight: bar codes, prosecutions, funding threats-sounds like a lot of change to me.

GrantAnd that tension between "nothing's changed" and a list of very specific new rules is exactly why the timing fight matters so much.

Speaker 5Or so much.

MayaBecause now it's not about what the order does, it's about when a court is even allowed to stop it.

GrantNow flip that on its head, though, because the courts don't even agree with each other on this one.

MayaTwo panels, same week, pulling opposite directions.

GrantSCOTUSblog reported Saturday the First Circuit voted 2-1 to keep Talwani's block standing.

MayaOne dissent. But here's what jumped out. CNN flagged this earlier in the week. This is the first time the Purcell principle gets tested against a federal order instead of a state one.

GrantPurcell's the don't touch election rules close to voting rule, right? That's never hit a federal order before.

MayaNever. It's from 2006. Always governors, secretaries of state, legislatures. Now Sauer's team wants the stretchers to cover a presidential order. That's a different animal.

GrantOkay, but here's my problem. Election Law Blog says a different pet.

MayaThe panel, the DC circuit, unanimous, called a parallel challenge premature.

GrantFiled too soon. Classic timing trap.

MayaSo Talwani's side gets blocked for waiting too long under Purcell, and this suit gets tossed for filing too early. There's no window where anyone wins.

GrantSue in March, premature; sue in September, too late.

MayaExactly; it's a squeeze, either direction.

GrantBut the same DC circuit opinion- PER ELECTION LAW BLOG INVITED A RENEWED SUIT THE MOMENT USPS ACTUALLY IMPLEMENTS THE ORDER. THAT'S NOT NOTHING.

MayaThe polite way of punting.

GrantMaybe; but Democracy Docket nailed the sharper reed. The panel said the order amounts to a substantial, unfunded overhaul of election procedure by a president with no express constitutional authority on elections. That's direct language.

MayaThey said that in the ruling that let it move forward?

GrantSame opinion. They also doubted it's even feasible to build before November. Sounds like a door left open on purpose.

MayaOr a court avoiding a live election fight and calling it procedure, Courthouse News reported 12 Republican-led states, Missouri out front, asking the justices to stop lower courts from blocking orders like this one at all. They're framing it as general policy guidance.

GrantWhich, if the justices buy it, ends the ripeness fight before it starts.

MayaThe legal maze is wild. None of it matters if USPS can't actually build the thing. thing.

GrantWhich is exactly the question waiting on the other side of this. So set the legal fight aside for a second. Can USPS actually build this thing?

MayaWhat do we mean by build it? Walk me through what has to happen.

GrantAt brand new portal, CNBC and Snopes both report that the May 29th proposal turns USPS's old recommended practices into a mandate. States enroll through something called the Federal Ballot Mail Portal, and USPS... Yes, build state-by-state ballot participation lists from scratch.

MayaWait, that doesn't exist yet? At all?

GrantCorrect. Zero infrastructure, zero runway. And USPS told a court in July it's running out of time to get this built before the election.

MayaNinety-some days to build and launch a national voter list system that's never been tested? Ever?

GrantNotre Dame's Derek Muller told VoteBeat this comes down to... Comes down to logistics. The law's the easy part.

MayaOkay, but here's what bugs me: this isn't abstract for people. Think about a voter in a rural county in, I don't know, eastern Oregon. Mail is the only realistic way they vote.

GrantRight. No polling place for forty miles.

MayaAnd if the list sharing breaks down or ballots get flagged wrong, that person doesn't get a do-over. They just don't vote.

GrantAnd the postal workers themselves aren't thrilled either. Scripps News quoted APWU President Jonathan Smith saying the Postal Service doesn't refuse mail based on who sent it; delivery is delivery.

MayaSo now your mail carrier's got to sort ballots by compliance status?

GrantThe system wasn't built for that, and there's a calendar problem nobody's litigating around.

MayaCalifornia!

GrantCalifornia. California may... California mails a ballot to every registered voter, and counties start sending them out in early October; that's the immovable deadline; no court order changes physics.

MayaSo even if SCOTUS says

Speaker 3Right!

Mayago, the printing trucks might not be ready.

GrantYou could win the case in Washington and still lose the printing deadline in Sacramento.

MayaYeah, the law can move faster than the mail.

GrantExactly-and if this whole fight fizzles on logistics-

MayaThe pressure just shifts. Monitors, data demands, certification fights, the stuff nobody's actually bothered to block yet.

GrantThat's next.

MayaOkay, so plot twist. While lawyers argue mail ballots, DOJ's Civil Rights Division just quietly changed the ground game itself.

GrantHow so?

MayaDemocracy Docket reported monitors heading into 15 jurisdictions across six states for the primaries. And wait for it, there's a bigger program set up for November.

GrantElection monitors aren't new, though. DOJ sent them for decades under the Voting Rights Act. Right,

Mayaso Campaign Legal Center caught this. so Campaign Legal Center caught this. Same day, DOJ sent letters to election officials nationwide raising criminal exposure over non-citizen voting.

GrantMonitors and prosecution letters same day?

MayaSame day.

Speaker 5Mm-hmm.

GrantThat's not oversight. That's pressure with a badge.

MayaAnd then, get this, it's not just letters. The Star Tribune reported DOJ suing Minnesota over voter roll data. Wants driver's license numbers, partial social security numbers unredacted.

GrantWhich state law bars releasing?

MayaExactly what Minnesota's arguing.

GrantSo who's checking the checkers?

MayaFunny you ask. NBC News says the ACLU is putting over 50 Fifty million dollars into the midterms, roughly half aimed at watching the administration and certification process.

GrantA private civil liberties group as the backstop to a federal agency. That's a strange sentence.

MayaThere's a government version too. Legis1 reported the House Administration Committee launched a bipartisan staff observer program back on July fifteenth.

GrantBipartisan and staffed by whom, exactly?

MayaCongressional aides, not judges. And here's the thing: it's a much softer check than a court order, which, let's be honest, isn't exactly known for stopping things fast, anyway.

GrantAnd certification's the next fight, isn't it, after ballots are cast, before they're counted?

MayaThat's a whole episode by itself. For now, file it under "Watch This Space."

GrantOminous.

MayaWait till you hear what happens when none of this—the monitors, the lawsuits, the observers—actually stops the clock, because spoiler alert: it won't.

GrantNinety-nine days doesn't care about oversight letters.

MayaNo, it doesn't.

GrantZooming out to the scorecard, my verdict on the courts is they held the line—twice.

MayaTwice how?

GrantFirst Circuit kept Talwani's injunction alive, and the DC panel told the other plaintiffs to come back once there's an actual rule to sue over. That's a system moving slow, not a system failing.

MayaI'll take the other side on that one. An oversight mechanism that only bites after implementation starts is weak when the real deadline is a printing schedule, not a court calendar.

GrantFair on timing, but the injunction is still standing today.

MayaFor now, Votebeat reported this week that lawyers are already staged to refile the second U.S. GPS finalizes anything close to a final roll. That's not a check working. That's a check waiting to react.

GrantSounds like a fire drill.

MayaIt is one, and the fire could start any day.

GrantSo what's the actual clock right now?

MayaOkay, so CNN's been tracking a Supreme Court ruling expected sometime this month, and separately there's a Massachusetts hearing set for August 7th, voting rights groups pushing for a renewed injunction, according to the ACLU.

GrantWait, same window as a SCOTUS ruling?

MayaSame window, two courts, one order, and plot twist, clocks that don't talk to each other.

GrantWait, There's a check missing from this whole conversation.

MayaCongress!

GrantThe SAVE Act stalled out in the Senate months ago.

MayaAnd the loudest response since has been oversight letters. Letters, not votes.

GrantThe Legislative Branch's favorite weapon.

MayaSo courts get a B-minus for me, moving but too slow for a printing deadline. Congress gets an F. It never showed up.

GrantI'd give the courts a solid B. They blocked what needed blocking and left the rest for when it's ripe.

MayaWell, no, fast— August seventh, then, whatever the nine decide.

GrantNinety-nine days and counting.

MayaOkay, before we go, verdict time: Check or no Check?

GrantSoft Check for me. The First Circuit and the DC Circuit both held the line, but courts move at brief speed while USPS moves at valid printing speed.

MayaFair, and Congress never showed up to this fight at all.

GrantExactly. So mark your calendars: the Supreme Court's ruling is still pending and Judge Talwani's got a hearing set on August seventh in Massachusetts.

MayaThat's the one to watch. Whichever moves first probably decides how this plays out before the midterms.

GrantIf this helped you make sense of any of it, send it to someone who cared.

MayaFollow the show, leave a review if you're feeling generous.

GrantThanks for hanging with us.

MayaSee you next week!