While the latest Supreme Court decision regarding President Donald Trump’s attack on mail-in voting doesn’t quite mean a death knell for mailed ballots, a “twisted” version of a little-known legal principle could hand him the midterm chaos he’s looking for. This is according to attorney Jay Kuo, who has been admitted before the country’s highest courts, and who warns that Trump and his allies on the Supreme Court may be running out of time — but that being short on time is part of their plan.
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“Were you to only read the headlines and the hot takes, you might conclude that mail-in balloting is toast and the midterms right along with it,” writes Kuo. “After all, Trump took direct aim at mail-in voting in a completely illegal executive order, and earlier this week the Supreme Court greenlit his sabotage. To top things off, yesterday the federal judge in Boston overseeing these cases bowed to the High Court’s reasoning and lifted the other court order, the one thing keeping the White House and the Postal Service from proceeding with their plan to police mail-in ballots.” But these rulings haven’t actually resulted in the implementation of Trump’s order. According to Kuo, “Despite procedural setbacks, the merits of Trump’s order have not been ruled upon by a higher court, meaning no one has actually won this fight yet.” In fact, notes Kuo, nobody even seems to deny the unconstitutionality of Trump’s effort.
“Justice Jackson’s from the SCOTUS emergency docket ruling this week drove this point home,” writes Kuo. “She noted that ‘the Government has not even bothered to assert, much less demonstrate, that the President has the constitutional authority to issue an order that directs the manner in which the mail-in ballot aspect of federal elections is to be administered.’ Legal writer Chris Geidner, covering the Court’s ruling in his newsletter, noted that the dissents pointed to language the majority opinion itself included in its brief, unsigned opinion: Nobody, including the government, was arguing the order is actually constitutional.”
So the risk that Trump will be handed control over mail-in voting isn’t in that the Supreme Court might rule it constitutional. According to Kuo, “The most serious threat comes from a Court that remains highly selective about when it does — and does not — get involved in election matters. Federal courts are supposed to uphold a longstanding practice of avoiding last-minute changes to how elections are run. The concern is that changing the rules close to an election creates confusion for voters. It’s called the ‘Purcell principle’ after a 2006 case.”
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“The same Supreme Court majority that just ruled for the administration on procedural grounds could decline to block the Postal Service rule, even while agreeing the rule is illegal, simply by throwing up its hands and saying Election Day is too close for a court to jump in,” warns Kuo. “It’s a twisted version of Purcell that actually permits the very kind of chaos the case is supposed to prevent.”
What’s more, the Court’s own recent history suggests the “danger” is real. As Kuo explains, “It repeatedly changed election rules using its own emergency docket in Texas, Louisiana and Alabama this term, very late in election cycles, when doing so favored Republican interests. Purcell seems to disappear as a consideration when it suits the majority, staying the hands of courts instead of mapmakers or federal officials precisely when injunctions are most needed to prevent electoral chaos.”
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