Around the country, state and local officials dodged a flaming arrow when the Supreme Court on September 14 struck down a recently adopted rule from the US Postal Service that threatened to throw into chaos this year’s midterms. 

Nearly one in three votes in federal elections is cast by mail. Mail voting burgeoned during the pandemic and has remained popular because voters find it convenient. Eight states, mostly in the West, have chosen to conduct federal elections entirely that way. 

President Donald Trump has criticized mail voting as rife with fraud, on his usual scanty evidence. He instructed the Postal Service to adopt a rule under which it would refuse to carry ballot mail unless states first sent the federal government a list of voters receiving mail ballots and also put new markings, including unique individual barcodes on the envelopes used to carry ballots in both directions, to and from the voter. 

One problem to start with is that under the Constitution, states, not the federal government, administer elections and give Congress, not the president or his agencies, the power to regulate the field by law. Not only has Congress not done that here, but it’s passed other, arguably inconsistent laws on topics such as when the USPS may permissibly refuse to carry mail from lawful users. 

The rule was adopted August 21, and critics said its compliance timeline was impossible, if not insane. States and counties would have to submit new envelope designs to USPS, which wouldn’t and couldn’t guarantee how long it would take to approve them. Printing the envelopes with newly approved designs—an inside and an outside set—can take weeks or months after a go-ahead, as jurisdictions scramble to engage the small pool of qualified vendors. Some states have already begun mailing out ballots. 

Dissenting Justice Samuel Alito, joined by Clarence Thomas, saw fit to wave away overwhelming unrebutted testimony and submissions on the compliance question from election administrators of both parties. After all, he reasoned, a number of red-state attorneys general had asserted in conclusory fashion that in their view the mandates and deadlines could be met. (Many of the election administrators were in fact from the same states and parties as the AGs.) Who knew for sure who was right about the facts, the one camp or the other? 

The dissent also accepted as real the rule’s claimed security rationale, even though, as colleague Stephen Richer recently pointed out, revisions had stripped away its originally touted anti-fraud elements: “‘USPS will not perform any verification of voter eligibility or the like.’ In other words, election officials could give the USPS mail ballot packets addressed to fraudulent recipients, but as long as those fraudulent recipients are also on the presubmitted list, then the USPS won’t do anything about it.” 

Finally, the dissent strained the available legal materials to spare USPS a test for arbitrary and capricious conduct under the Administrative Procedure Act, which it would rightly have flunked.

Justice Brett Kavanaugh wrote separately to indicate that at some point down the road he might uphold the rule on the merits but joined the majority on holding that it could not properly be sprung this way at the last minute. The majority of justices, however, in three terse sentences, indicated that the administration was likely to lose both on the balance of equities (dominated here by timing) and on the merits. 

If so, that signifies the rule still won’t fly if Trump tries to order it again in the future. The constitutional issues aside, there’d remain plenty of statutory barriers. He’d probably have to go to Congress and get it to pass a new law asserting control over this area. Not likely. 

The rule was never a good idea. Congress never chose to authorize it, and the president lacks authority to do it on his own.