And Then I Remember That Trump Is An Incompetent Buffoon

 And I just laugh and laugh 😹.

While the Trump administration is likely to celebrate the ruling, GOP strategist Shermichael Singleton called on Trump to abandon the scheme altogether. He warned during an interview on CNN's "The Lead" that the order could hurt Republicans going forward, considering that their base relies on mail-in voting to increase turnout in rural areas and among senior citizens.

"Keep in mind, a couple of years ago, many Republicans advocated for mail-in balloting because we were looking at the projections of our voters," Singleton said. "They were getting older. They live in far places. We wanted to make sure that those people had an opportunity to participate."

"I view this a little differently from the president," Singleton said. "I would encourage him to strongly reconsider this, because on the other side, the voters are younger. There's an enthusiasm gap, too. And those folks appear to be willing to turn out in higher numbers."

Now, there are a few things going on here. One is the nationwide injunction in a separate case, unaffected by this order. But I expect the DOJ has an appeal pending on that one. Although I confess, I don’t know if they’ve appealed it to the appellate court yet, and I don’t think the Supremes are going to reach down and snatch it from the trial court (although stranger things have happened).

But the efficiency of the USPS is called into question here. This could well fuck up ballot delivery in several states, including Trump’s ballot. The ensuing chaos would be all on him, especially if the Postal Service is in possession of valid ballots after Election Day. (Yes, I know the idea is USPS never delivers them, but they’ll fuck that up, and probably try to fix it on the backend in some states). Especially if those ballots are presumed to be GOP ballots. Are they counted? Or no? Now you run into state law deadlines you can’t override with an EO or a shadow docket order.

What say the Sinister Six then? I don’t know that the order will be held to apply this close to Election Day (but I don’t know that the Court has clarified that). But I also don’t doubt USPS will have a lot of explaining to do if it’s holding ballots after the polls close; or just holding ballots it refused to deliver. If the GOP loses badly, what does Trump do then? Who does he blame?

Shit, now I’m glad Texas made it harder to vote by mail. Now I don’t have to vote a provisional ballot while they wait for the one I’d have gotten in the mail to never be returned. Indeed, had Trump considered how many voters who usually mail in a ballot will find it harder to vote as they have to prove they never got one? That’s a whole new way to suppress turnout. Trump really is our man on their side.

Incompetence is its own accountability, in the end.

Well, I wrote the above, and then Professor Vladeck published, so pardon me while I dub him in, with commentary:

First, the executive order at issue has two different sets of provisions under challenge. Section 2 of the EO is directed toward DHS, and deals with the sharing of “citizenship lists” between the federal government and states. Section 3 (the really troubling part) is directed toward the U.S. Postal Service, and is the part that, if fully implemented, would allow the USPS to refuse to deliver mail-in ballots in states that don’t match their voter rolls to DHS’s own (likely deeply incomplete) list. So keep these two different sections in mind.

Second, there are two different cases at the forefront of challenges to the executive order, both pending before Judge Talwani in the District of Massachusetts. One is California v. Trump (a challenge by blue states); the other is League of Women Voters of Massachusetts v. Trump (a challenge by private organizations/voters). Critically, Judge Talwani has issued injunctions against the executive order in both cases. But Monday’s Supreme Court ruling applies only to one of them—the one brought by the states. For unimportant procedural reasons, the League of Women Voters case moved a bit slower, and Judge Talwani’s injunction in that case remains in effect. Even though the Solicitor General had asked the Supreme Court to reach out and pour cold water on that injunction, too, I don’t see anything in the 10-page majority opinion that speaks to the validity of that injunction one way or the other.

The Six could still address the other injunction, but they haven’t yet. Curiouser and curiouser.

Third, late Friday night, the U.S. Postal Service (finally) released the “Final Rule” that was supposed to be published by the end of July that purports to implement Trump’s executive order. It’s that rule, not the executive order itself, that would be the basis for the USPS messing with mail-in ballots come October and November. The rule itself acknowledges the injunctions in both the California and League of Women Voters cases, and provides it won’t go into effect so long as those injunctions remain in force (as one of them still does). And in the League of Women Voters case, Judge Talwani has already indicated that she is inclined to block that rule, too—for the same reasons she enjoined the executive order. That ruling may come as soon as tomorrow—which is when any opposition to such a ruling from the government is due at 8:00 a.m. ET. (The rule is currently set to be “published” in the Federal Register on Wednesday.)

So unless the Six act on the injunction they ignored, USPS is abiding by that injunction. “Big win,” indeed. 

Fourth, and just to be as clear as possible about this, it’s the still-to-come litigation over the USPS Final Rule that’s going to be critical here. In a moment, I’ll get to how the majority opinion from the Supreme Court may and may not influence the trajectory of the League of Women Voters case, but until and unless the injunction of the executive order in that case, or a subsequent TRO or injunction of the USPS Final Rule itself, is vacated by the First Circuit or the Supreme Court, the status quo (that is to say, no mail-in ballot mischief) will persist. The USPS Final Rule itself can’t go into effect until the League of Women Voters injunction is frozen.

Fifth, and turning to the Supreme Court’s actual ruling, the core of the majority opinion is that the blue states brought their challenge too soon. My own view is that both of the dissenting opinions (one by Justice Sotomayor, joined by Justice Kagan; and one by Justice Jackson) already had the better of this argument before the USPS issued its Final Rule last Friday. But to suggest today that these cases are premature is, to use a technical word, bollocks. It’s not going to matter, because the League of Women Voters case will almost certainly be “ripe.” But it’s still a ridiculous rationalization by the Court that I’ll try to write more about later this week.

This “reason” is what the nattering nabobs used to call a “technicality.” It is that, but it’s also not the basis for a major victory dance.

Sixth, the “ripeness” part of the opinion likely won’t matter much in the League of Women Voters case. Neither will the standing analysis, since voters dealing with a USPS Final Rule are, in numerous material respects, differently situated from blue states challenging the executive order on its face. The part of the majority opinion that may carry over is its discussion of “irreparable harm.” Justice Jackson, as usual, is right about how the majority is once again perverting that concept (as I noted just this morning in discussing the Chief Justice’s “administrative stay” in the ballroom case). But the majority’s wrongheaded irreparable harm analysis will surely apply to a challenge to the USPS Final Rule, too. That should mean that the inevitable emergency application in the League of Women Voters case comes down to the underlying legality of the USPS Final Rule (which would be bad for Trump), except that…

Seventh, the shadow looming over all of this is the “Purcell principle,” the idea that, as election day draws nigh, federal courts should stay their hand rather than issue coercive orders changing the rules for when and how people vote. Purcell is the source of significant controversy and criticism, almost all of it deserved. Among the charges are that (some of) the justices are ruthlessly inconsistent in when they do and don’t apply Purcell—leading to the worry that an injunction against the USPS Final Rule might be deemed “too close to the election,” and stayed under Purcell. That’s a genuine concern, and given the Court’s own repeated transgressions of the Purcell principle earlier this term in Texas, Louisiana, and Alabama, to hide behind it to allow the USPS Final Rule to go into effect would be as indefensible and anti-democratic a ruling as the Court has handed down in a very long time. That brings me to…

Eighth, there’s still a lot to play for in these cases. My own view is that the Court should have denied the stay, especially with respect to section 3, for the reasons the unanimous First Circuit panel articulated in California (Judge Dunlap dissented only as to section 2). But even with tonight’s stay, section 3 remains blocked; the USPS Final Rule remains frozen; and the real question is going to be what happens with the (seemingly inevitable) TRO or injunction against the USPS Final Rule that’s still to come in the League of Women Voters case.

IOW: what a pile of shit they dumped. It’s an even dumber and less defensible opinion than I thought it was. But I think I know why they didn’t freeze the other injunction; and I’m not sure they’re likely to.

I don’t think the majority want this case messing up their vacation; and they don’t want the LWV case on their docket come October (especially with early voting starting that month in many states). So let’s see if this pitiful squeak (“ripeness is all”? Really?) gets any further attention from the trial court, the 1st Circuit, or the Sinister Six. Because as it stands now, per the rules of the USPS, nothing has changed. 😹