My New One at Slate: “KBJ Warns of ‘Kafkaesque Nightmare’ After Pro-Trump Supreme Court Ruling on Mail Voting. We’ll Know Soon Enough.”

I have written this piece for Slate. It begins:

Last March, Donald Trump issued another one of his executive orders trying to assert control over how the United States conducts its elections. On Monday, after a long delay, the Supreme Court let Trump take a small step forward toward implementing its rules, over the objections of the three Democrat-appointed justices. One of those rules would bar the United States Postal Service from delivering mail ballots from states that don’t jump through certain Trump-approved hoops. But for both legal and practical reasons, it is still increasingly unlikely that these rules actually can be put in place before November’s midterms, even if they are found to be legal.

In Monday’s Supreme Court ruling, the court held that the district court was wrong in the 23-state case, because the injuries were premature and too speculative given that USPS and DHS had not issued final rules. It said the case was not ripe and the states did not have sufficient standing until the rules issued.

The court’s opinion and dissents were no doubt in substantially final form by Friday, and in the late Monday per curiam order the court did not even acknowledge that USPS issued a rule. That was strange. Nor did the court mention that separate nationwide order against USPS. And it went out of its way to say that it was not ruling on the merits of the president’s authority to issue these rules. Its order “does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell.”

Justices Sonia Sotomayor, joined by Justice Elena Kagan, dissented, arguing that the states were injured enough by having to take precautions in case the final rule would issue (again, the rule has since been issued). Justice Jackson wrote a longer dissent for herself, going into more detail about the states’ injuries. She also accused the majority of missing “the Government’s actual objective: to secure our imprimatur for its effort to foment chaos ahead of the November elections.” She noted that the ruling is already causing chaos, and is in tension with other court cases under the so-called Purcell principle cautioning against last-minute election changes that burden election administrators and voters…..

If the trial court rules again as I expect, the government will no doubt go to the appeals court again seeking relief—although this time it will have to argue on the merits that the president does have this authority over elections. Failing relief there, this case will be back before SCOTUS in a matter of days or weeks.

It is here that the clock is working against the government. Unless the government gets quick intervention, we will be well into September before the Supreme Court rules on this issue. By then, mail-in-ballots will likely be mailed or ready to be mailed: federal law requires ballots for overseas and military voters to go out 45 days before the election. It really would be chaos for the federal government to order changes to how American elections are run in the middle of September.

It is this second round ruling that is going to be the real test for the court. Is it going to assist Trump in being a chaos-agent for the elections? Or will at least two of the Republican-appointed justices recognize the clear inequities of the situation? On that score, time will tell….