The Trump administration went to the Supreme Court on Sunday for the third time, asking the justices to let the Postal Service implement new mail ballot rules for November. Solicitor General John Sauer filed a 40-page emergency application. States challenging the rule must respond by 10 a.m. Tuesday.
Constitutional Rights PAC has spent months arguing for citizenship verification in federal elections. We are not going to pretend to be neutral about the goal.
We are going to be honest about this vehicle, because our readers deserve an accurate picture rather than a cheer.
What the rule does.
The regulation, which grew out of the President's March executive order directing federal agencies to take a role in elections, requires state election officials to upload the name, address, and barcode information of every voter they intend to send a mail ballot. Postal workers would then deliver ballots only to voters appearing on the state-provided list.
The administration describes this as modest. Sauer wrote that the rule imposes envelope-design and addressee-information requirements and does not seize control of state election administration.
The fairest version of that argument is not nothing. States already maintain voter lists. The Postal Service already handles addressing standards for bulk mail. There is nothing inherently radical about a delivery agency knowing who it is delivering to.
Where it runs into a wall.
Judge Indira Talwani in Boston blocked the rule Friday, extending an earlier order indefinitely. Her language matters: implementing a final rule issued fewer than seventy days before the election, she wrote, threatens disenfranchisement of millions of American citizens who intend to vote by mail. She also noted the dispute was no longer hypothetical.
Then there is the detail that should stop every conservative reading this.
In filings before the lower court, the administration acknowledged that the portal states would use to upload their voter lists will not be ready until sometime next week.
The states seized on it, and they were right to. They argued the government has made no effort to explain how it could possibly be entitled to emergency relief to implement a rule it currently lacks the technological capacity to administer.
Separately, a Postal Service whistleblower has alleged the portal was never properly tested, and that the envelope verification policy could result in large numbers of voters not receiving ballots in time, or at all.
North Carolina started mailing ballots on Friday. It is the first state, and others follow within weeks.
The federalism problem we cannot wave away.
Here is the part that requires conservatives to be consistent.
The Constitution assigns the regulation of federal elections to state legislatures, with Congress empowered to alter those rules. That is the Elections Clause. Congress. Not an executive-branch agency, and not the Postal Service.
Last week this publication praised General Dan Caine for confirming the military will not be deployed to polling places, and we said plainly that states run elections and that federal power a friendly administration uses today is available to an unfriendly one tomorrow. That was the right principle. It does not become the wrong principle eight days later because the agency involved delivers mail instead of carrying rifles.
A federal judge has already blocked the proof-of-citizenship executive order on precisely these grounds, holding that the authority belongs to states and to Congress.
And consider what accepting this theory would mean for our own priority. We have spent all summer demanding that the Senate vote on the SAVE America Act. If the executive branch can impose citizenship-based mail ballot restrictions by agency rule, that entire fight is pointless. Either Congress has to legislate this or it does not. We have argued for a year that it does.
The practical case for caution.
Set the Constitution aside for a paragraph and think purely tactically.
Suppose the Supreme Court grants the stay. The rule takes effect with an untested portal, roughly fifty-five days before Election Day, across fifty state systems of varying sophistication.
If it works cleanly, the administration gets a modest administrative win.
If it does not, legitimate American citizens do not receive their ballots. Every one of those becomes a news story, a lawsuit, and a campaign advertisement. The argument for citizenship verification, an argument that commands broad public support when it is presented competently, gets buried under footage of veterans and grandmothers who never got a ballot.
We made this same point three days ago about the SAVE verification database in Texas, where 2,724 registrations were flagged and officials later had to reinstate citizens who had already proven citizenship to the state. The lesson has not changed. The strongest case against election integrity measures has never been the principle. It has always been that enforcement will be sloppy and catch the wrong people.
Do not hand them that.
What we should be asking for.
Pass the SAVE America Act. Through Congress, where the authority actually sits, with a talking filibuster if that is what it takes.
Build the verification infrastructure first and test it before an election, not during one.
And stop trying to accomplish by emergency application in September what should have been legislated in March.
One last thing.
The Court will resolve this before November. It may well side with the administration.
If it does, conservatives should be the first people demanding the portal actually works before a single ballot is withheld. Not because the goal is wrong. Because the goal is right, and a botched rollout sixty days out is the surest way to lose it for another decade.
