Rules Designed to Create Chaos
· The Atlantic
Donald Trump hates mail-in voting. He has described it as “dangerous,” “corrupt,” “horrible,” and “a fraud.” Last year, in a Truth Social post festooned with capital letters and exclamation points, he announced that he would be signing an executive order to do away with mail-in ballots entirely. That order never materialized, possibly because the president has absolutely no legal authority to carry out such a ban. The federal government plays only a small role in administering elections, and the Constitution locates those authorities with Congress, not the president.
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But now, with some ballots already heading to voters as the midterms draw near, the Trump administration is waging another fight against voting by mail, this time through its control over the U.S. Postal Service. Trump’s plan wouldn’t outright prohibit mail-in voting but would throw so many wrenches into the machinery that it could grind to a halt. Federal courts at both the district and appellate levels have blocked the rule, and now the Supreme Court is in the process of weighing whether to allow this effort to move forward before the midterms; it could make a decision as soon as later today. If the justices let USPS take these steps in the coming weeks, the risk, the election-law expert Rick Hasen told me, is “mass disenfranchisement.”
Historically, the Postal Service has simply mailed every ballot provided by state and local election officials. But in a March executive order, Trump directed USPS to develop a new plan that would erect a series of hoops for election workers to jump through before a ballot can be sent to an expectant voter. If the rule goes into effect, USPS will require state and local jurisdictions to obtain federal sign-off on the design of the envelope and then mark each ballot envelope with barcodes. States must also upload a full list of every voter receiving a mail ballot to a so-called federal ballot mail portal. Only then, once USPS cross-checks the barcodes with the voter list in the portal, will the ballot be delivered.
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In the abstract, this might sound inoffensive. But the process is so hopelessly tangled that it seems almost designed to fail. Take the portal, which is still not online. On September 3—a week ago—the Postal Service stated in a court filing that the website would be ready “by sometime next week.” Even if the portal were functional, it might not operate fairly. A whistleblower recently filed a disclosure warning that the Postal Service is planning to use the system with a “zero percent failure rate.” USPS will scan ballots in large batches, the whistleblower says, and if a single ballot fails to match the uploaded list of voters, none of the ballots in the batch will be mailed.
Election rules take a long time to change, and states begin preparing the polls long before Election Day. When Trump announced the order, in March, experts did not immediately think that the midterms would be affected. “I had assumed that this was going to be put on hold” until after November, Hasen said. But USPS quickly began putting together the detailed plans requested by the White House, even though the order itself faced multiple legal challenges and was racking up court judgments against it. (Another section of the executive order directed the Department of Homeland Security to produce a mechanism by which states can review “citizenship lists” of potential voters. DHS has yet to provide these lists, and the nonprofit Electronic Privacy Information Center recently sued to block the agency from compiling and distributing them.)
The Supreme Court ruled on August 24 that the executive order’s challengers had gone to court too soon, before USPS’s plans were far enough along. Now the Postal Service claims that its work is ready—mostly—to be rolled out, if the justices will let it.
The court dockets are crammed with statements by election experts and state and local officials explaining all of the different problems created by the rule. In their breadth and variety, these declarations are a reminder of just how big the United States is, and how many people must work together across multiple states and levels of government to pull off a successful election season. Hawaii has spent more than $79,000 printing ballot envelopes, the state’s chief election officer wrote in one filing; he worried that if officials need to order new envelopes, they may not arrive from the continental U.S. in time for the election. Rhode Island’s deputy secretary of state explained that the state’s laws regulating ballot-envelope design effectively prohibit officials from affixing the two barcodes required by USPS. In Wisconsin, some rural jurisdictions may not have the ability to print the required barcodes, the chair of the Wisconsin Elections Commission said. The elections director in Oregon, which conducts all of the state’s elections completely by mail, worried that the state’s “aging” computer systems are not equipped to efficiently upload 3 million voters’ personal information into the USPS portal. “If the system fails,” she wrote, “Oregon may be unable to mail ballots to voters at all.”
Election officials who have long relied on the Postal Service are now thinking through alternatives. Cisco Aguilar, Nevada’s secretary of state, told me that he has reached out to private mail carriers about delivering ballots in a pinch. “We got a quote from UPS of about eight bucks per ballot, which is about three dollars more than we pay the Postal Service,” he said. “With 2.1 million ballots in Nevada, that’s a pretty significant expense.” Nevada sends mail-in ballots to voters by default, and mail-in voting is popular: 60 percent of Nevadans voted by mail in the state’s primary elections, Aguilar said. Now his office is figuring out how to communicate clearly with voters who may be alarmed or confused if USPS refuses to mail Nevada’s ballots. “Do we just start to message, Hey, just skip the mail ballot altogether and show up in person?”
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Experts are hoping that the Supreme Court takes these concerns seriously. Because of the emergency status of the litigation, the justices can consider not just the legality of the federal government’s actions but also the “equities”—that is, the potential harms suffered by each side depending on how the Court rules. There are strong legal arguments that the administration has no authority to put such a program in place. (Perhaps tellingly, the federal government has been reduced to arguing that the Post Office can impose requirements for mailing ballots in the same way that it can put safeguards in place for mailing cremated human remains.) On the equities, though, the matter seems particularly stark. If the Supreme Court allows the policy to go into effect, the outcome could be catastrophic. But if the policy remains blocked, what is the harm to the federal government? The administration’s briefs make little attempt to answer this question other than vague insinuations about voter fraud.
Then again, a victory at the Court wouldn’t appear to gain much for the administration, either. If the goal is partisan sabotage, there is little reason to think that the USPS plan would help Republicans. “If this actually happens, the burden is going to fall hardest on the most vulnerable of our voters—the elderly, the disabled, rural voters, voters on reservations, voters in the military,” Hasen said. Older voters and rural Americans have tended to be reliable GOP constituencies, and in a season when the Republican Party is struggling to build up voter enthusiasm, there is a real risk that inconvenienced voters who never receive a ballot will simply stay home. Democrats furious with Trump, meanwhile, may be more motivated to find a way to the polls.
Still, the widespread confusion that the USPS rule would inevitably create may have its own appeal to the White House. A group of election officials, including several Republican secretaries of state, warned in an amicus brief before the Supreme Court that “a chaotic election erodes confidence in the result.” For a president long obsessed with undermining Americans’ trust in elections, perhaps that’s victory enough.