The Supreme Court’s cryptic mail ballot decision won’t be its last word on voting
By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — The Supreme Court’s recent patchwork of election-related decisions gives the public scant clues of how the justices would act if faced with a crucial dispute this fall that would definitively settle which party controls Congress or what to expect in 2028.
The justices’ unsigned order Monday rejecting President Donald Trump’s plan to let the US Postal Service possibly refuse to deliver ballots was cryptic. And an earlier June decision, similarly rejecting an attempt to foist new rules on mail-in ballots, came down to a single vote.
Some justices, notably Samuel Alito and Clarence Thomas, have echoed the Trump administration’s unsubstantiated claims of fraud regarding mail-in voting. And Justice Brett Kavanaugh suggested on Monday an openness to letting the Postal Service control ballots in the future, perhaps for the 2028 presidential election cycle.
Washington lawyer Donald Verrilli, a former US solicitor general in the Obama administration, said on Tuesday that he anticipates continued legal conflict around mail-in ballots.
He observed that although no evidence exists that such ballots are conducive to fraud, that drumbeat is “in the air,” reinforced by Alito’s dissent Monday night.
“As the rest of this electoral cycle unfolds, and into 2028,” Verrilli said at a Georgetown Law panel, “I think there’s going to be a lot of turbulence around these issues.”
The nine justices, dominated by six conservatives, have moved haltingly through cases, suggesting some concern about chaos for voters but also hewing to their established priorities.
Amid a torrent of lawsuits challenging administration policy since Trump returned to office in January 2025, litigation involving electoral practices is especially high stakes. Such cases determine cherished voting rights and the ability of all citizens to be represented by elected officials.
Earlier this year, the majority retrenched on the 1965 Voting Rights Act and provided state legislators greater latitude to draw maps that may dilute the voting power of Blacks and Latinos. Several states immediately began redistricting to eliminate “majority-minority” districts and give Republican candidates an advantage. The court allowed some of those changes to go ahead in the middle of the primary election season.
A terse order that sidestepped the bigger controversy
While Monday night’s order was a clear win for the Democratic-led states and voting-rights advocates who sued to block the Postal Service regulations from being enforced, it lacked a robust signal from the justices themselves.
The two-sentence order was devoid of any underlying legal reasoning. It said only, “The Government is unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction. And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.”
Perhaps the terseness was the result of the cross-ideological compromise among the justices, but those sentences merely reflect guideposts for dissolving a lower court injunction, such as whether that the government can show it is likely to succeed on the merits of its claim and is likely to suffer irreparable harm without the stay.
The justices said nothing about the myriad issues that had been explored by lower court judges, related to the constitutional and statutory powers of the dueling parties and the feasibility of the Postal System screening plan.
In his brief concurrence, Kavanaugh wrote, “there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority,” appearing to provide another possible vote in favor of Trump’s efforts.
State election officials, voting rights advocates and political operatives have been closely anticipating how the Supreme Court might affect this year’s midterms and possibly lay groundwork for the presidential election in 2028.
Disputed state electoral practices have become a staple of the justices’ docket and will likely continue through – and possibly after – the November 3 elections. The House of Representatives and Senate are currently controlled by Republicans. Democrats have a chance to flip at least the House and maybe both chambers.
Eyes on Trump
Trump’s reaction to the 2020 election, when he lost to Joe Biden yet insisted the results were fraudulent, still shadows ballot controversies, as does the memory of the 2000 Bush v. Gore litigation.
In that case nearly 26 years ago, the Supreme Court essentially decided the contest between then-Texas Gov. George W. Bush and Vice President Al Gore by stopping ballot recounts in Florida and ensuring that the state’s decisive electoral votes went to Bush, the Republican candidate.
Outraged Tuesday about the justices’ order, Trump denounced his three appointees who apparently joined the majority against his plan to screen states’ mail-in ballots. (Only Alito and Thomas dissented publicly, but there was no recorded vote.)
In his first term, Trump had named Neil Gorsuch in 2017; Kavanaugh in 2018; and Amy Coney Barrett in 2020.
Trump declared in a Truth Social post: “These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of the original selves.”
Attorney General Todd Blanche said the Justice Department would continue to try to restrict mail voting.
“There should be nothing surprising about what we’re trying to do when it comes to mail-in voting, which is we want to make sure that there is safe voting and that there is integrity, free and fair elections, and that there is one person placing one vote and that that person is eligible to vote,” Blanche said Tuesday during a rare White House Rose Garden appearance.
In Monday’s case, the postal rules finalized in late August would have forced states to submit lists of eligible voters to the US Postal Service. The rules also called for new envelope requirements, including tracking barcodes. Without them, the USPS would have prohibited the delivery of ballots.
About 30% of voters across the country cast their ballots by mail, rather than in-person. People in the military, the elderly and disabled especially rely on mail-in ballots.
The state challengers, led by California, had argued that the Trump plan was unworkable as well as unlawful. Democratic and Republican state and local election officials warned throughout the summer that the USPS proposal could have led to mass disenfranchisement. Some states had already sent out ballots, and officials had been told there may not even be enough envelopes nationwide to start over.
Alito’s echo
A separate Supreme Court mail-in ballot dispute in June arose from a Trump-endorsed challenge to Mississippi’s five-day grace period for receipt of mail ballots postmarked by Election Day.
By a 5-4 vote, the Supreme Court snubbed the Republican National Committee lawsuit against Mississippi. Barrett, who wrote for the majority, said that federal election-day laws, which designate the Tuesday after the first Monday in November, did not prevent Mississippi from counting properly postmarked ballots up to five days later.
Addressing the RNC and Trump claims of fraud in that case, Watson v. Republican National Committee, Barrett added, “Election fraud and its appearance are serious issues. Like other such issues, however, they must be addressed through the democratic process.”
Foreshadowing where Alito would land on Monday, he penned the dissenting statement in June, raising the specter of “voter fraud that may further undermine Americans’ faith in the integrity of this country’s elections.”
Alito was joined in the RNC case by Thomas, Gorsuch and Kavanaugh.
On Monday night, he drew support only from Thomas. They argued for broad Postal Service authority, and, as they addressed the government’s interest in enforcing the rule, they echoed the administration’s arguments about enhancing “the visibility of Federal Ballot Mail in order to better detect fraud.”
Alito further compared some of the challengers’ claims to a “Hail Mary pass … unlikely to be successfully completed here.”
The-CNN-Wire
™ & © 2026 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.
