The Supreme Court ruled Monday night, 7 to 2, to leave in place a lower court injunction blocking the Postal Service's new mail ballot regulation. The rule will not apply to November's midterms.
Two weeks ago, this publication argued that the administration should not be pursuing citizenship verification through an agency rule when the authority belongs to Congress and to state legislatures. We said the goal was right and the vehicle was wrong. Monday's ruling confirms exactly that, and conservatives should be honest about what just happened rather than simply angry about it.
What the rule tried to do.
The regulation grew out of the President's March executive order directing federal agencies into a role in election administration. It required state election officials to upload voter information to a Postal Service portal, imposed new envelope and verification standards, and gave USPS a gatekeeping role over which ballots got delivered and to whom.
Solicitor General John Sauer told the Court that mail voting fraud is a particularly pernicious species of fraud, one that dilutes lawful votes and undermines confidence in elections. He is not wrong about the problem. He was arguing for the wrong solution to it.
Why it lost, and it is not close.
A federal judge in Boston found the rule likely illegal because the Postal Service simply has no authority to control mail-in voting. A second judge issued a separate injunction. The Supreme Court's majority found the government unlikely to succeed on the merits at all.
Read that finding carefully, because it is the same argument we made in our own pages. The Elections Clause assigns the regulation of federal elections to state legislatures, with Congress empowered to alter those rules. It says nothing about the Postal Service. An agency whose statutory job is delivering mail cannot rewrite the rules for delivering ballots any more than the Department of Agriculture could decide who gets to vote based on their zip code.
We warned that if the executive branch could impose citizenship-based ballot rules through agency action, our own yearlong argument that Congress must pass the SAVE America Act would collapse into irrelevance. Seven justices, including several appointed by Republican presidents, just confirmed that the executive branch cannot do this. Congress must.
The part conservatives should sit with.
The whistleblower disclosure filed with Congress during this fight said the Postal Service's own portal was untested and rushed, and warned the verification process could keep ballots from reaching voters who were entitled to them. That is not a partisan talking point. It is the same warning we raised about the Texas SAVE database, where 2,724 registrations were flagged and officials later had to reinstate citizens who had already proven their citizenship to the state.
The pattern is now impossible to ignore. Verification systems built and deployed under emergency timelines, without adequate testing, close to an election, do not primarily catch fraud. They primarily catch legitimate voters and generate exactly the kind of chaos the Court cited as a reason to block this rule.
If the rule had gone into effect and thousands of legitimate mail voters had lost ballots fifty-five days before an election, the resulting stories would have done more damage to the cause of election integrity than five years of careful legislative work could repair. The Court did us a favor whether it meant to or not.
Justice Alito's dissent deserves an honest look, not a cheer.
Justice Alito, joined by Justice Thomas, argued the government had the better case, and that the plaintiffs pursuing this challenge lacked standing on most of their claims. He is a serious jurist making a serious argument, and conservatives should read the dissent rather than assume the majority settled the question beyond debate. A 7-2 split with two justices this concerned about the outcome is not nothing.
But even Alito's dissent does not rescue the process problem. An emergency application defending an untested portal that the government's own witnesses could not vouch for is a weak vehicle for a strong argument, regardless of who is right about the underlying legal theory.
What actually changes now.
Nothing about November. States continue using their existing mail voting processes, the same ones that have operated for years.
What should change is the strategy. The administration attempted through executive rulemaking, on an emergency basis, fifty-five days before an election, what should have been legislated over the preceding two years. That was the wrong sequence, and the Court has now said so in the plainest possible terms.
The only path that survives judicial review.
Congress. The SAVE America Act, passed through the House and Senate, signed into law, implemented with a verification system built and tested well before it is needed rather than assembled in the weeks before an election.
Senator Mike Lee has said publicly that Republicans have the votes because they hold a simple majority, and that a talking filibuster with continuous session would get the bill passed. That mechanism requires no agency rulemaking, no emergency Supreme Court applications, and no untested portals. It requires the Senate to do the one thing the Constitution actually assigned this job to: legislate.
We have been saying this for a month. The Court just removed the alternative.
