Bob Bauer discusses the Supreme Court’s order declining to stay the injunction against the Postal Service’s ballot-mail rule, issued the previous evening over a brief concurrence from Justice Kavanaugh and a longer dissent from Justices Alito and Thomas. He reads the Court’s order as a possible signal that eleventh-hour executive interventions in the electoral process would meet skepticism; notes the measure of bipartisanship in the record, including red-state election officials who told the Court the rule could not be implemented in time; and cautions that the rule’s application to the 2028 elections remains an open question.
Mentioned:
“Order denying application for stay,” in United States Postal Service v. California, No. 26A305 (Supreme Court of the United States, September 14, 2026)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Bob Bauer: Good morning. I’m here to discuss yesterday evening’s court ruling in the Postal Service case involving election mail. I’m not here as I normally am with my colleague Jack Goldsmith; this time I’m solo, and I’m just going to make a few brief observations about the case.
The first is that we are conjecturing about the future to some extent when we try to draw out the implications of the case, because not much other than by the dissent and briefly by Justice Kavanaugh was said. The court in its ruling found that there was a likelihood that the plaintiffs—that is to say, those challenging the government—would prevail on the merits, and that the normal factors that are weighed in determining an application for a stay like the one the government filed weighed against the government’s position. And that’s all it said, very briefly. Justice Kavanaugh had some more to say about his position, but again in very brief terms, and then a somewhat longer position was expressed by Justices Alito and Thomas in their dissent.
However, it seems to me that if we are going to abstract from the case and engage in a little bit of conjecture, we might conclude that this is a significant signal that eleventh-hour interventions in the electoral process are going to be viewed by the court very skeptically. And this ties back to various considerations that the court has been bringing to election cases, most notably in a case called Purcell v. Gonzalez. The Purcell case only applies to federal court orders late in the cycle; it does not apply by its terms as an equitable doctrine to the executive branch and any actions that the executive branch may take. But in that case and other cases, including one recently involving a candidate challenge to election rules, in a case called [Bost v. Illinois State Board of Elections], the court made clear that there are considerations unique to the election context: that as an election draws nearer, there is sensitivity to what legal developments may mean for the stable administration of the process and the potential disenfranchisement of voters.
In a 2020 case, for example, Justice Kavanaugh said—and I’m now paraphrasing—that it was important that the rules of the road be clear and settled before an election, and discussed the consequences if in fact they are not. I think that ties back to his concerns with the timing of this final postal rule, if it were to go into effect on a record that certainly suggested that it would have a destabilizing effect on the administration of the elections, that it might fail in certain respects to be implemented accurately, and that the results might be widespread disenfranchisement. So I think this question of timing is of great importance, because we don’t know what the administration might still do between now and election day.
A second comment that I would make relates to the record before the court, and I can’t stress this enough. There was an enormous measure of bipartisanship, including red-state election officials advising the court that even if they were not going to express themselves on the merits of this final postal rule, they just did not see that it could be implemented, or that they could comply with it, in the time between now and election day. This is extraordinarily important—to have some common ground about the destabilizing, disruptive effect that this final rule, if it were allowed to go into effect, would have on elections. So I think that’s extremely important.
A third observation: we don’t know whether in fact this rule will ultimately survive and become applicable in the 2028 elections. That’s simply unknown at this point. We know only that it’s not going to affect this election, and the question of what will happen next is an open question. But certainly it seems likely that this administration will pursue the implementation of the rule for the presidential and congressional election cycle of 2028.
That’s all we know, and yet it is encouraging to election officials around the country, and that’s both Democrats and Republicans, that their concerns will be taken into account, and the needs they have to prepare in some kind of systematic manner that ensures competent administration and is fair to voters.
And I would just close by saying something that is surprisingly missing from the dissent, but that is not missing from a district court decision the day before yesterday, on the Sunday before this ruling on Monday evening—a decision issued by a Trump appointee, a district court judge, in [a parallel] case: Judge Nichols. Judge Nichols also, in granting the preliminary injunction, found that it was defective on the merits, and that in balancing all the factors that go into determining whether emergency relief to the government was warranted, he concluded that the government’s case had in fact failed. But in weighing the public interest, Judge Nichols said that the right to vote is fundamental, and that the voters’ interest here—voters’ interest in avoiding confusion, voters’ interest in avoiding the potential that ballots would be disqualified in the rush to implement this rule—those were interests that had to be weighed very heavily in the balance. That’s missing from Justice Alito’s dissent. But I can’t help but think that as the election draws closer, it will be very much on the minds of the Supreme Court and other courts as they contend with other cases of this kind that may arise at the eleventh hour.
So those are some preliminary observations. Have a good day.
