People complain that the current Supreme Court is a partisan institution, with the six Republican appointees deciding cases based on their partisan beliefs.
But two recent and significant cases on the court’s emergency docket refute that complaint, or at least the most simplistic version of it.
The two cases are, first, the fight over Missouri’s congressional map and, second, the suit to stop implementation of the U.S. Postal Service’s rule, adopted at President Donald Trump’s direction, to block the delivery to voters of vote-by-mail ballots unless they appeared on a list provided by their home state’s election officials.
In both cases, the court foiled what Republicans – and specifically the Trump administration – wanted. In both cases, the court’s fidelity to nonpartisan enforcement of the law prevailed over the position that the Republican litigants urged the court to take.
Let’s consider the Missouri case first. It’s technically two separate Supreme Court proceedings, one from the state’s supreme court and the other from the lower federal courts within the state. But in both proceedings the court prevented Republicans from getting the gerrymandered congressional map they wanted for this year’s midterm general election in November. (After this essay was written, the U.S. Court of Appeals for the 8th Circuit issued a subsequent ruling in favor of the gerrymandered map, which will require the matter to return to the Supreme Court for yet a third time. But nothing in the 8th Circuit’s new ruling negates what this essay says about the Supreme Court’s avoidance of partisanship in its handling of the dispute.)
Here’s what transpired. After Trump called upon red states (those dominated by Republicans) to gerrymander their congressional maps this year, rather than waiting for the new decennial census as usually occurs, Missouri’s legislation heeded Trump’s wishes and drew a new map that eliminates the state’s majority-Democrat district based in Kansas City. That left the state with only one majority-Democrat district, located in St. Louis.
Opponents of the new map, a group called People Not Politicians, gathered enough signatures to put to the state’s voters in a referendum whether the new map should, or should not, take effect. Under Missouri law, once the secretary of state determines that enough signatures have been gathered to add the referendum to the ballot in the next election, the map is blocked from use unless and until the voters approve it in the referendum.
PNP submitted their signatures to the secretary of state on Dec. 9 of last year. Missouri’s secretary of state, Denny Hoskins, then waited almost eight months – until Aug. 4 of this year (the last possible date under state law) – to reject the submission of signatures, not because there weren’t enough of them (there were plenty), but instead on the spurious ground that redistricting maps couldn’t be the subject of a referendum under the state’s constitution.
The effect of Hoskins’ intentional delay, which was entirely unnecessary, was to cause the state’s congressional primaries to be held based on the new gerrymandered map, the one without the previously existing majority-Democrat district in Kansas City.
Meanwhile, PNP sued Hoskins in state court, claiming that his rejection of their referendum submission violated the Missouri constitution, which contained no language that precluded redistricting maps from being subject to a referendum. On Sept. 3, the Missouri Supreme Court unanimously agreed with PNP and refuted Hoskins’ contrary position, ordering him to put the referendum on the November general election ballot. This decree had the effect of nullifying the new map, unless and until approved in the referendum. Indeed, the Missouri Supreme Court stated that the new map never lawfully took effect in the state, because PNP had properly submitted enough signatures, and therefore the new map shouldn’t have been used for the primaries. Although the Missouri Supreme Court didn’t say what to do about the fact that the new map had been wrongly used in the primaries, it made clear that the old map – the one with the existing Democrat-majority district in Kansas City – needed to be used for this year’s November general election.
Admittedly, the situation was a mess: The candidates who had won the primaries had won in districts that now did not exist for the general election. But it was a mess of the secretary of state’s own making. Had he rejected PNP’s referendum petition earlier, as he could have right away since his position didn’t involve counting or verifying any signatures, he could have enabled the Missouri Supreme Court to issue its decision long before the primaries, and thus the same old map could have been used for both the primaries and the general election this year.
Nonetheless, the secretary of state took the case to the U.S. Supreme Court, joined by the Republican Party (represented by the influential law firm Jones Day). They argued that the Missouri Supreme Court had violated Article I, § 4 of the federal Constitution by depriving the state’s legislature of the power to draw the state’s congressional districts. That section states: “The Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Their claim was that, by permitting the referendum to suspend the new map, the state’s constitution as interpreted by its highest court had taken the power to draw the map away from the legislature.
This claim was especially weak because the Supreme Court only three years ago, in 2023’s Moore v. Harper, had confirmed the validity of a century-old precedent, Ohio ex rel. Davis v. Hildebrant, which had upheld the power of a state to submit for approval or disapproval in a referendum a congressional map adopted by the state’s legislature.
Hoskins and the Republican Party had a second argument that at least was not foreclosed by precedent. This second claim was that using different districts for the primaries and general election violated the equal protection clause of the 14th Amendment because some voters were able to vote for the same candidates in the primaries and the general election (those who had not been affected by the new map’s gerrymander) while some were not (those whose districts changed because of the gerrymander). Given the murkiness of the equal protection clause’s applicability in the context of elections ever since Bush v. Gore(because the court there condemned “arbitrary” differences without explaining what that meant or how its asserted principle would apply in future cases), there was at least some superficial plausibility to this claim of unconstitutionally different treatment.
The difficulty with this claim, apart from, again, the fact that there wouldn’t have been any problem if Hoskins had acted properly, was that general election voters don’t have any constitutional right to have primary elections conducted in any particular way –or even to have any primary elections at all. Political parties can nominate their candidates for the general election ballot by means of a convention or caucus, rather than a primary, without violating the Constitution. And there are often voters who participate in a general election who had no opportunity to participate in the primaries that determined the candidates on the general election ballot: for example, those who moved into the district after the primaries but before the general election. Thus, while it was unfortunate that this year in Missouri the primaries were held using one map to determine the nominees for each congressional seat, while the general election will be held using a somewhat different map, this fact does not deny any general election voter an equal right to participate in the general election.
Hoskins and the Republican Party submitted their claims to Justice Brett Kavanaugh, the circuit justice for Missouri. He rejected them in a one-line order, without even referring them to the full court. He evidently thought there was no basis for blocking the Missouri Supreme Court’s unanimous decision interpreting the state’s constitution to permit the referendum and thus preclude the use of the legislature’s new map for the general election.
One would have thought Kavanaugh’s order would have ended the matter, but Hoskins and his Republican allies refused to take no for an answer. They reasserted their claims in federal district court, where they secured a temporary restraining order requiring the use of the new gerrymandered map for the November general election. The U.S. Court of Appeals for the 8th Circuit refused to stay the TRO, but the Supreme Court quickly did. This time Kavanaugh did refer the matter to the full court, but the court was equally terse as Kavanaugh had been, providing no explanation for its ruling. Still, it’s not difficult to surmise that the other justices – there were no noted dissents – concluded that Kavanaugh had been correct initially and that the challenge to the Missouri Supreme Court’s decision had been meritless, and thus there was no valid basis for the federal district court to issue a conflicting order.
The court clearly did not act in a partisan fashion in its disposition of the Missouri matter. And the partisan nature of the litigation could not have been more transparent. Not only was this a case of Republicans on one side and Democrats on the other (PNP was represented in the Supreme Court by the Elias Law Group, the leading law firm for the Democratic Party), but Trump’s solicitor general filed an amicus brief to support the use of the Republican gerrymandered map in the general election. Yet none of the court’s justices were willing to publicly support that position.
The Supreme Court also rejected the SG’s position in the vote-by-mail case, a matter of much greater concern to Trump himself. At the end of March, Trump issued an executive order requiring the Postal Service to promulgate a rule that would prevent the mailing of absentee ballots to voters who did not appear on a list of entitled recipients. The Postal Service complied (although the details of its rule differed from what Trump had ordered in some respects). The key feature of the Postal Service’s new rule is its requirements that states provide it with a list of all the state’s voters eligible to receive an absentee ballot. The Postal Service will not mail an absentee ballot to any voter not on the state’s list.
The new rule was quickly the subject of a preliminary injunction for being beyond the scope of the Postal Service’s authority. There is no act of Congress that explicitly gives the Postal Service the power to screen the delivery of absentee ballots in this way. To be sure, the Postal Service is entitled to regulate what must appear on an absentee ballot envelope for that envelope to be delivered to its addressee. Indeed, some other aspects of the new rule do just that, and they should not be viewed as substantively problematic (although the timing of them in connection with this year’s midterms raised significant issues of feasibility). But it is an altogether different matter for the Postal Service to say that it will not deliver a properly addressed envelope to its addressee unless the addressee’s name appears on a separate list of individuals entitled to receive the mailing.
This type of requirement is all the more astonishing in the context of absentee ballots. It is not the job of the Postal Service to police who is entitled to receive an absentee ballot. That’s the job of state and local election officials. And although the Postal Service’s new rule does not second-guess whatever list of entitled voters a state sends it, the rule still requires that it screen all outbound absentee ballots that a state mails to voters to make sure that the recipients are on the state’s submitted list.
It’s hard to imagine a more appropriate application of the so-called “major questions doctrine” than this assertion of an electoral gatekeeping function by the Postal Service. That doctrine, which played a significant role in the tariffs case, is an elaboration of Justice Antonin Scalia’s essential insight that Congress does not “hide elephants in mouseholes.” In other words, big deal policy innovations cannot be derived by federal executive branch agencies from generic statutory provisions but instead require separate specific and explicit grants of authority from Congress. It certainly would be a gargantuan transformation of the way elections are conducted in the United States for the Postal Service to take on the gatekeeping role that it asserted for itself in its new rule. While Congress could give the Postal Service this power, it most assuredly has not, and fidelity to the underlying principle of the major questions doctrine requires preventing the Postal Service from exercising this electoral authority unless and until Congress enacts a new statute specifically and expressly granting it this power.
As the U.S. Court of Appeals for the 1st Circuit stated when refusing to block the preliminary injunction of the new rule, “Congress historically has been explicit in its exercise of authority under the Elections Clause when it seeks to displace the background assumption that the States will act as the primary regulator of elections.” Yet, as the 1st Circuit observed, that’s not the situation here: “The general authority on which appellants rely here is far removed from that sort of specific congressional action.” Consequently, quoting one of the court’s leading major-question-doctrine decisions, Biden v. Nebraska, the 1st Circuit declared: “Appellants have not convinced us that it is likely that Congress would delegate constitutionally assigned tasks relevant to maintaining our electoral system to the Postal Service through the ‘wafer-thin reed’ of a general grant of authority to manage the postal system.”
Like the 1st Circuit, the Supreme Court refused to let the new rule take effect for this year’s election. The court did not issue an opinion. Instead, it succinctly stated: “The Government is unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction.” Presumably, a majority of the justices see the merits in much the same way as the 1st Circuit did.
The court also stated that “the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.” (Disclosure: I participated in an amicus brief making this point about the balancing of the equities in the context of this year’s midterms.) Kavanaugh wrote separately to say that he agreed with the court that the rule cannot be implemented this year, but he believed there to be “at least a fair prospect” the rule “falls within the Postal Service’s statutory authority.” I hope that Kavanaugh, in saying this, was focused on the portions of the rule that concern the envelope in which absentee ballots are transmitted through the mails. If so, I agree with him. But, for reasons already stated, it would be shocking if Kavanaugh believed that the major questions doctrine would permit the Postal Service to adopt the requirement that a voter be on a list provided to the Postal Service from the voter’s state in order for the Postal Service to deliver that voter an absentee ballot mailed by the state to the voter.
More disturbing was the dissent written by Justice Samuel Alito and joined by Justice Clarence Thomas. They would have let the rule take effect immediately, in the midst of this year’s election for which absentee voting has already begun in some states, although it would have been impossible for states to comply with the rule because the Postal Service had not yet established the “portal” into which the states were required to submit their list of voters. In balancing the equities, Alito and Thomas “blame[d]” the states for how they litigated their challenge to the Postal Service’s authority to promulgate its new rule. The states sued when Trump issued his executive order, rather than waiting for the postal rule itself. Even if the states deserve blame for suing too soon – and they do not, given the court’s own Purcell doctrine about the timing of election-related litigation, which encourages such suits to be filed sooner rather than later (see, for example, the court’s decision in Bost v. Illinois Board of Elections from earlier this year) – the voters who would be harmed by enforcement of the rule had nothing to do with the timing of the states’ suit. Indeed, Alito and Thomas express no concern whatsoever for the voters unable to receive the absentee ballots their state has mailed to them because the Postal Service refuses to deliver that mail when the “portal” does not yet exist and it is impossible for the states to comply with the new rule.
Regrettably, the position of Alito and Thomas in this case I think is best understood as an exercise of partisanship, to support Trump in his effort to alter the electoral process for the benefit of Republican candidates, although Congress has granted him no such power. Thankfully, none of the other justices engaged in this partisanship. On the contrary, the rest of the court – including Kavanaugh – made clear that the law constrains the president, along with the rest of the executive branch, when it comes to the procedures for conducting elections.
This is an extremely welcome message from the court as this year’s voting is now underway.
