PN is supported by paid subscribers. Become one ⬇️
The important thing to know here is that this is all John Roberts’s fault.
We’re on the precipice of complete chaos as Trump tries to seize control of the midterms. Multiple courts have ruled that this is wholly illegal. And yet, no one knows whether the Supreme Court’s MAGA majority will once again leap in to ensure the president is able to violate the law.
The result is a frenzied race by lower courts to render their own rulings as quickly as possible to mitigate the impact of the bomb that SCOTUS may or may not drop in the middle of the November election.
This is not how functioning democracies go. Or at least, not for long.
Steal big
On March 31, Trump signed an executive order instructing the Justice Department, Homeland Security, and the Postal Service to effectively seize control of state voter rolls.
The Constitution vests exactly zero authority in the executive branch to police local elections, explicitly reserving that power for Congress and the states. But Trump vaguely gestured in the direction of his “unavoidable duty under Article II of the Constitution of the United States to enforce Federal law, which includes preventing violations of Federal criminal law and maintaining public confidence in election outcomes” and forged ahead.
Under this spiffy plan, the secretary of Homeland Security will compile a list of citizens, collect state voter rolls, and tell registrars whom to delete. The Post Office will take the list of “legal” voters and refuse to deliver ballots to anyone not on it. And the attorney general will hold the whip, threatening to arrest anyone who stands in the way.
The plan stumbled at the first hurdle, when states declined to turn over the voter lists, and judges declined to make them. The government is currently 0-23 in its effort to coerce the states to hand over voter data. And so Trump turned to the Post Office in a final, desperate attempt to make it happen.
But there, too, he’s been stymied by the courts. Twenty-four states, the District of Columbia, and a coalition of civil rights groups led by the League of Women Voters sued in Massachusetts to block implementation of the order. On June 25, Judge Indira Talwani, an Obama appointee, agreed that the mailman has no power to police state elections and enjoined the Post Office from operationalizing it in any fashion. Citing the imminent harm to states, which have already expended considerable time and effort preparing for the midterms, she refused to stay her order pending appeal. The First Circuit agreed on both counts.
Meanwhile in DC, a similar case brought by the Democratic Senatorial Campaign Committee, the League of United Latin American Citizens, and the NAACP was percolating before Trump-appointee Judge Carl Nichols. He denied the requested injunction because the Post Office had not enacted a final rule, and thus any harm to the plaintiffs was “speculative.” And on August 24 the Supreme Court’s six conservatives adopted that same reasoning to undo Judge Talwani’s injunction.
But by then, the Post Office had finalized the rule, and the very harms warned of by the states were coming to pass.
Stop the steal, but for real
The final rule propounded by the Post Office is every bit as invasive and infeasible as the plaintiffs warned.
It forces state officials to upload their voter rolls to the Post Office through a dedicated portal and purchase new envelopes with voter-specific bar codes for every piece of ballot mail. If a ballot is rejected, it won’t be delivered at all, and only the registrar can fix that — the voter won’t be told or given an opportunity to challenge her exclusion.
As multiple election officials attested, this cannot possibly be implemented in time for the November midterms.
Dyana Limon-Mercado, the county clerk for Travis County, Texas, wrote that even if she had the money, manpower, and time to redo every ballot envelope — a project which takes 35 people working full time five weeks to complete — her office has no scanners capable of reading the specific barcode mandated by the regulation. She went on:
The County Clerk has already purchased all our absentee ballot outbound carrier envelopes and return envelopes that we will use for the November 2026 election, at a cost of approximately $21,349. We do not have funds to repurchase new envelopes.
Moreover, because the absentee ballot envelopes are specialized products, as referenced above, ordering them requires months of lead time. Even if our budget could handle the additional expenditure, our supplier would not be able to provide that many new envelopes in time for us to meet the October 4, 2026, deadline to start sending out mail-in ballots for the upcoming November 3, 2026 election. We typically order such ballot envelopes three to nine months in advance.
Plaintiffs in the DC case note that, in jurisdictions that mail ballots to every voter, it would take the post office days or even months to scan millions of envelopes.
If it takes USPS one minute to scan each of the 2.6 million mailpieces, the Maricopa County Recorder will have to remain at the [Business Mail Entry Unit] continuously for nearly 5 years. If 30 seconds per mail piece, 2.5 years. If one second, 30 days. And if a tenth of a second, it would still take 72 hours.
And that’s if everything at the Post Office goes right. Which it will not according to a whistleblower report published today by Sen. Richard Blumenthal.
The “anonymous federal official with direct knowledge of potentially catastrophic problems in the development of the United States Postal Service’s new system for handling federal election ballot mail” describes a shambolic process to cobble together something in time for the midterms — a process the Post Office resumed in July, in direct contravention of Judge Talwani’s injunction.
The whistleblower warns that “an ordinary process for an effort of this complexity, magnitude, and importance could take nine months to a year or more,” but that all concerns were brushed aside by supervisors who declared “we cannot fail.”
Even worse, the government plans to reject thousands of ballots if the machine decides that even one in the pile is defective. Blumenthal writes:
Not only is this system astonishingly untested, USPS has simultaneously implemented an impracticable zero percent failure rate. When ballots are submitted to USPS in large-volume batches, if any one ballot in the batch cannot be verified against the Portal, all ballots in that batch will be rejected. For example, if a state election official brings a batch of 10,000 ballots to USPS and USPS is unable to match just one of those ballots against the Portal – because, for example, someone has recently changed their name after marriage or they’ve moved — then USPS would refuse to mail the remaining 9,999 ballots as well. As the whistleblower notes, “USPS expects the state to take back the entire batch to cure the issue with the single ballot…”
To root out the nonexistent scourge of voter fraud, the government will disenfranchise millions of American citizens!
The only six votes that count
After the Supreme Court bigfooted in to stomp on Judge Talwani’s order, she invited the plaintiffs to amend their complaint to account for the fact that the rule has now been finalized. They took her up on it within hours, and by August 27, she had reimposed a temporary restraining order blocking the government from putting the rule into effect.
Temporary restraining orders are definitionally not appealable, since they last for a short time (typically 14 days) and are merely a placeholder to preserve the status quo while the judge makes a considered ruling. Here, Judge Talwani ordered the parties to appear on Thursday, September 3, for a hearing on a preliminary injunction, which is appealable. Despite this lightning-fast schedule, the government filed an immediate appeal to the First Circuit.
No other litigant would seek this kind of relief, much less get it. But the Trump administration routinely demands emergency relief from every adverse ruling, no matter how temporary. And in the main, it gets what it wants, thanks to the Supreme Court’s right-wing justices.
Time and again they leapt in to short-circuit the normal process to allow Trump to break the law, on the theory that saying no to the president is grave emergency. This is a power grab by the Court’s MAGA majority, who have kicked the legs out from under trial and appellate courts, at least when it comes to their golden-orange boy.
Lower court judges have contorted their jurisprudence and preemptively stayed their own orders against the government to avert the chaos of the Supreme Court’s six justices stomping in and doing it for them. In the case of Trump’s tariffs, lower courts allowed him to keep collecting billions of dollars in illegal levies because they anticipated — correctly! — that the Supreme Court would just make them do it anyway.
We watched this exact dynamic play out with respect to Trump’s illegal ballroom, which the Supreme Court just greenlit on Monday. That case had the added wrinkle of Chief Justice Roberts siding with the liberals in the minority to oppose the continued construction. But his righteous anger might ring more true if he hadn’t spend the past decade rewarding Trump for breaking the law and ignoring court orders.
And so the First Circuit sprinted to respond to the government’s demand that they stay Judge Talwani’s order and let the Trump administration enact this disastrous scheme immediately. The government points to special tracking requirements for shipping cremated pets as proof that it’s entitled to dummy up an entire ballot screening system and dump votes at scale.
The First Circuit raced to deal with the government’s emergency motion to set aside Judge Talwani’s order, instructing the parties to brief the case in less than 24 hours. As of this writing, they have not yet ruled — although if you asked me to bet, I’d wager that they’re likely to uphold the trial judge, as they did five weeks ago. But however they come down, we all understand that it will be a mere placeholder until the Supreme Court announces whether it will once again allow Trump to sow chaos and potentially steal the midterms.
Thanks, Chief Justice Roberts!
That’s it for today
We’ll be back with more tomorrow. If you appreciate today’s PN, please do your part to keep us free by signing up for a paid subscription.
Thanks for reading, and for your support.
If we ever get out of this nightmare, supreme Court expansion isn't nearly enough. The six fascist bastards currently seated on the court need to be removed and either imprisoned or hanged along with the rest of the Republicans who got us here.
I cannot imagine what compelled Chief Justice John Roberts to dissent given all the damage he has caused to democracy. He even used a famous Winston Churchill quote—“We shape our buildings, and afterwards our buildings shape us”—to conclude his dissenting opinion.