In the Vote-by-Mail Case, Justice Alito is Back to Victim Blaming and Guerrilla War

Yesterday the Supreme Court issued a one-paragraph order rejecting the Trump administration's application for a stay of the injunction against implementation of the Post Office's new rule that would have likely disenfranchised a great many voters, deterred many others from voting by mail, thrown the midterm elections into chaos, and--in light of asymmetrical use of mail voting by Republicans and Democrats since the pandemic--skewed the midterm election results in favor of Republicans.

The decision was welcome news for big-D Democrats but more importantly for small-d democrats, i.e., people who care about preserving what's left of American constitutional democracy. We can breathe a sigh of relief, albeit a small one, given that Trump and the Republicans continue to make further anti-democratic maneuvers. They have already used mid-decade hyper-partisan gerrymandering to tilt the playing field and might send ICE and other federal law enforcement officers to the polls, seize ballots, and even unleash a January 6-style mob.

Even so, the fact that six Justices, including three Republican appointees, unequivocally rejected an important aspect of Trump's war on democracy is news worth celebrating. Accordingly, I hereby celebrate.

But what about the other three Justices? Justice Kavanaugh equivocally rejected the Trump administration's stay application. In what I'll acknowledge as principled consistency with his invocation of the so-called Purcell principle in cases favoring Republicans, here Justice Kavanaugh concurred in the order on the ground that the application came too close in time to the election. Thus, he found that implementation of the Post Office rules at this late date would be arbitrary and capricious. Kudos on this point.

It's nonetheless disturbing that Justice Kavanaugh also said that he might well reach a different conclusion on a more relaxed timetable. Based on the briefs submitted to the Court, he said that there's "at least a fair prospect that the final rule falls within the Postal Service’s statutory authority," despite its obviously pretextual basis.

What pretextual basis? The Trump administration contended that the Post Office rule is aimed at detecting and combating voter fraud that the best empirical evidence shows is essentially nonexistent. It cannot possibly justify the Post Office's sweeping measures that would disenfranchise something like thousands of eligible voters for every case of fraudulent voting it detects. And yet, Justice Kavanaugh thinks there's a fair prospect that the final rule is within the Post Office's authority.

Justice Alito, joined by Justice Thomas, goes further: he doesn't think there's a mere "fair prospect" that the Post Office's rule is legal; he thinks the Trump administration "is likely to succeed on the merits."

In part that's because Justice Alito thinks the plaintiffs lack standing but he also says the government should probably win on the actual merits and that the balance of the equities favors the government. Let's examine that last point closely because it is the most disturbing part of the Alito/Thomas dissent. Justice Alito writes:

the Government has a strong interest in enforcing the rule, and implementing it will also “enhance the visibility of Federal Ballot Mail” in order to better detect election fraud. 91 Fed. Reg. 54972. On the other side of the balance, the plaintiff States invoke the practical effects of implementing the rule close to the midterm elections. I take that problem very seriously, but it is not enough to convince me to deny the application.

Neither side of that analysis is persuasive. On the government side, Justice Alito cites the Post Office's own regulation claiming that its rule will enhance the visibility of Federal Ballot Mail. But why is that important? Is there currently some problem with the visibility of mailed ballots? Even Justice Alito doesn't suggest that there is. Instead, he acknowledges that the supposed justification for the Post Office rule is "to better detect election fraud." But he cites no evidence, because none exists, that there is any substantial problem currently being caused by election fraud via mailed ballots. So the harm to the government from failing to grant a stay not only isn't irreparable; it's nonexistent.

Meanwhile, Justice Alito's claim that he takes the problem that States would face in trying to comply with the Post Office's rule "very seriously" is about as credible as Senator Susan Collins saying she's "very concerned" about . . . well, just about anything she either votes for anyway or votes against only so long as there are enough Republican votes for the measure to pass.

Justice Alito gives two reasons to discount the impact of the Post Office rule on the plaintiff States. One is that "[t]welve States supported the rule [in the lower courts] and asserted that compliance at this time is practicable." Yet the fact that it was only twelve States actually cuts against Justice Alito's view.

It should surprise no one to learn that the twelve states that supported the Post Office rules are all led by Republicans. They are: Alabama, Florida, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, and Texas. What's notable is not that twelve Republican-led states would support a Trump-led initiative to disenfranchise Democratic voters but that so many didn't. There are currently 26 states with Republican Governors and 27 with Republican Attorneys General. That means that a majority of Republican-led States were unwilling to assert that they could readily comply with the Post Office's rules. And of course, no Democratic-led states were among the twelve.

Justice Alito's second reason for discounting the harm to the States is that he blames them for it. By filing lawsuits in April to block President Trump's executive order telling the Post Office to adopt restrictive requirements for mail-in voting, Justice Alito says, the plaintiffs delayed the Post Office's adoption of a final rule until such a time that implementing it would be difficult.

Readers familiar with Justice Alito's broader oeuvre will recognize this victim-blaming move as a more-than-a-decade-old rerun. In Glossip v. Gross in 2015, the Supreme Court, in an opinion by Justice Alito, rejected an Eighth Amendment challenge to the use of the drug midazolam in executions, despite substantial evidence (detailed from the record in Justice Sotomayor's dissent) that it causes a torturous death. Justice Alito's opinion included the implicit argument that any avoidable suffering caused by midazolam was the fault of "anti-death-penalty advocates" who had "pressured pharmaceutical companies to refuse to supply the drugs [previously] used to carry out death sentences." He had made the point even more directly during the oral argument in Glossip when he pointedly indicated that he was not inclined to show sympathy for Glossip and his fellow death-row plaintiffs when capital punishment abolitionists had waged "a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain."

For the sake of argument, let's assume that Justice Alito is right in both settings: absent the campaign of death penalty opponents and the litigation by voting rights advocates, states wouldn't have used midazolam and the Post Office would have promulgated its rules earlier. Even so, how is it remotely fair to punish people who were not themselves participants in the respective campaign and litigation by subjecting them to a torturous death (in Glossip) or disenfranchisement (in the Post Office case)?

The short answer is that for Justice Alito (and Justice Thomas), it is all guerrilla warfare, in which he makes no distinction between combatants and civilians, between the activists he regards as the enemy and the innocents whose interests they represent.

-- Michael C. Dorf