The Supreme Court has signaled that it has little sympathy for President Trump’s scheme to use the U.S. Postal Service to frustrate mail-in balloting and generally sow confusion. Pending a decision on the merits of the case, the Court has fended off the administration request to pause lower-court injunctions prohibiting the USPS from implementing its requirements.
But as states send out ballots, the high court has not yet scheduled a hearing or provided a timetable for issuing a final ruling. In the meantime, the cat is already out of the bag. In Leon County, Florida, the county elections supervisor submitted his ballot envelope to the Postal Service for approval in case the new requirements should go into effect. The USPS disallowed it because it was 0.014 inches too close to other text, even though the entire USPS schema has been temporarily enjoined by the courts.
The high court needs to definitively shut down the scheme, so that Republican officials who try to hide behind it can be quickly enjoined or held in contempt—and do it soon.
A little-noticed amicus brief filed with the Supreme Court on September 10 by six Republican secretaries of state, one Republican governor, and more than 30 other current and former state and local officials points out the sheer mischief and absurdity of the USPS requirements. The brief points out:
“For election officials, elections are not something that simply happen on Election Day—preparations have been underway this entire year, and crucial preparations are occurring now. In many respects, the election is already underway. Ballots have been prepared and proofed. Poll workers and other election officials have been trained on processes. North Carolina has already mailed out its first ballots.”
And the brief adds, invoking the well-established Purcell principle, “Attempting to implement this new process on the eve of an election is what Purcell v. Gonzalez exists to prevent. The principle rests on incontestable facts about voters and about the people who run elections: that late changes breed confusion, that confusion keeps eligible voters from voting, and that a chaotic election erodes confidence in the result.”
What on earth is the Supreme Court waiting for?
Meanwhile, the potential for other election mischief keeps proliferating. At Trump’s midterm convention last Thursday, House Speaker Mike Johnson declared, “We cannot and will not allow them [the Democrats] to take the majority in the Congress. We’re not gonna do it.” Some election experts believe that Johnson has the power to do just that.
In one scenario posed by retired conservative appellate judge Michael Luttig in a recent article in The New Republic, Johnson could fire the current nonpartisan clerk of the House and replace him with a MAGA loyalist who would then refuse to certify and seat dozens of Democrats duly elected in November. The courts would ultimately have to intervene. Historically, courts have been reluctant to meddle in the internal affairs of Congress, even though in this case democracy itself is at stake.
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Other experts I spoke with think that Luttig is overstating the risk, though he is right to sound the alarm. In fact, there are two separate House rules involved and they are somewhat at odds with each other.
The rule cited by Luttig indeed gives the Speaker the right to appoint the House clerk. But another House rule gives the whole House the power to overrule the Speaker on that appointment. The House rules also make clear that the function of the clerk in certifying and seating members-elect is purely pro forma (“ministerial”).
Though this potential standoff has never been tested, there are probably enough anti-MAGA lame-duck House members in the outgoing Congress that Johnson could not win majority support for the ploy that Luttig describes. That could discourage him from even trying it.
In general, though the Supreme Court has not intervened in the internal affairs of Congress, there are exceptions when democracy is on the line. In 1967, the House tried to expel Rep. Adam Clayton Powell, who represented Harlem, for alleged corruption. The Court held, in Powell v. McCormack, that Congress’s constitutional power to judge the qualifications of its members does not allow it to impose additional qualifications beyond those specified in the Constitution. Importantly, the Court held that the case was justiciable—which becomes key if Johnson were to attempt a coup by refusing to seat duly elected members.
The clearer and sooner that the Supreme Court weighs in and definitively shuts down the USPS scam, the more it will send a signal that no form of election theft will be tolerated. But lest we forget, this is the same Supreme Court that gutted the Voting Rights Act. I wish I had more confidence that the Court will act, and act soon, and act well. It does appear that some ploys are too much, even for this Court.
