S1: Welcome in San Diego. It's Jade Hindman on today's show. What? The Supreme Court's ruling to Trump's mail in ballot order means for California voters. This is KPBS Midday Edition. Connecting our communities through conversation. So this week , the Supreme Court sided with President Donald Trump's executive order to restrict mail in voting , at least for now. For now being the key distinction there , the high court's ruling wasn't about the legality of Trump's order. It was about the legal path that states took to try to block it. Still , it's unclear what kind of changes will actually see to mail in voting ahead of the midterms. And just today , Democratic states filed yet another lawsuit challenging the order. So joining me to help us make sense of all this is betrayal. Ross. He's a professor of law at UC Berkeley. Professor , welcome.
S2: Thank you so much. It's great to be here.
S1: Glad to have you here to to break all of this down , professor.
S2: Um , I'll do my best.
S1: Thank you. So how can. I mean , can you first give us a refresher on the executive order at the center of all this? I mean , what does it call for? Yeah.
S2: Yeah. So there's three main parts to the executive order. The first part requires the Department of Homeland Security to compile a citizenship list in each state to show , um , which citizens or which individual citizens and eligible to vote that are over 18. The second part of it subjects to state to federal prosecution , States and state officials that send ballots to those who are ineligible to vote. They don't necessarily have to abide by the citizenship list , but if they are found to have sent a ballot to those ineligible to vote , they'll be subject to prosecution , and the third one is orders. The or ask the United States Postal Service to develop a rule that would establish a mechanism by which they could track ballots that are sent by mail , and to identify who these ballots are sent to.
S1: So and all of that help us understand the Supreme Court's Monday decision. What did they take issue with? Yeah.
S2: Yeah. So the Monday decision was had kind of two main components. The first one is that the court says that this case is not ready for review at this moment. The order , as the United States Postal Service , to come up with a rule that would address mail in balloting and establish a system by which they can exercise discretion as to who gets those ballots. And and that rule was not in effect when this order was challenged. And the second part of it is the question of whether the states have what's called standing , whether they have they are going to be harmed by this law. Whether they are able to prove that they're going to be harmed by this law , and what the court says is that , you know , there's potential , um , a potential decision on the merits that could go against the states and therefore they are staying the injunction for now.
S1: And the Postal Service eventually did make a rule , though. What did they decide? Yeah.
S2: Yeah. So they made the rule that , um , did what much of what the executive order wanted them to do , in the sense that they developed a rule that provided for a barcoding and tracking of mail in ballots and that would , um , give the United States Postal Service discretion as to who the ballots can be sent to based on who the who is deemed eligible. Um , probably to be derived from the citizenship list that the Department of Homeland Security is supposed to develop.
S1: So is there is there any precedent for a decision like this? Yeah.
S2: Yeah. So there's precedent in the sense that the court generally makes decision on ripeness grounds , deciding whether a suit is ready , whether there is enough legal action to be sued , or whether there is actual something to sue on the basis of. So that's not unusual. It is interesting in the context of an election that is so soon forthcoming , because to the to the extent that it is too soon from the states perspective , they still have to anticipate they have to plan around the possibility that this law will come , this executive order will come into effect , and therefore they are incurring costs. They are having to change practices and in ways that are abiding in anticipation of a law that goes into effect. So it's a bit unusual with respect to not deciding a matter that is impacting the states right now. Um , um , at this point.
S1: And again , if this was too soon , what would the right timing , um , have been. You think? Yeah.
S2: Yeah. It's it's tough to figure out , because there's also a legal doctrine that the court has developed that says that suits cannot be too late either. If they're too close to the election , then that is going to cause confusion from the voters , etc.. And so you kind of have to find some sort of magical sweet spot in which the suit is not too soon , but not too late. And we don't really know when that period actually is. Huh.
S1: Huh. Well , uh , Democratic states filed another lawsuit challenging Trump's executive order today. What's the significance of that?
S2: Well , the significance of it is that they're trying to overcome the standing issue that the states face , and they're trying to show that , look , voters that support Democratic candidates are going to be harmed by this executive order. And because they face that harm , the court and they're following it with the lower court right now , should decide on the lawfulness of this executive order. And that decision is necessary to , you know , not have a chilling effect on the voting behavior of voters who vote by mail and not deter them from voting in ways that would be harmful to Democratic candidates , because Democratic voters tend to vote more absentee and by mail than Republican voters.
S1: And of course , you know , the midterms , the midterm elections are just weeks away. How likely is it that we see real changes to mail in voting in this upcoming election?
S2: It is so unclear right now , right. It seems that Trump administration is very motivated to make these changes. But there are legal obstacles in the way. Right. And there are there's litigation that's ongoing. And the question is when will this litigation be resolved? Will it be resolved in time before the the the 2026 midterm elections , such that mail in ballot voting will have a different form or not? It's very unclear right now , and that uncertainty is contributing to a sense of growing chaos amongst voter registrars and those who and implement the the voting procedures.
S1: Well , in her dissenting opinion on Monday , Justice Ketanji Brown Jackson wrote that the ruling , quote , needlessly injects chaos and uncertainty into the upcoming midterm elections. End quote. So how much of that do you think is strategy?
S2: I think that , you know , when you look at the Trump administration and its activities , you know , sometimes it is pursuing actions , whether it be executive order or litigation , for the purpose of sowing chaos , right , for sowing confusion , for intimidation , for creating anticipatory compliance in which , you know , institutions comply even though they don't have to comply. And so you could perhaps see this as part and parcel of the general strategy that the Trump administration has with respect to creating sowing enough doubt in a system that is , that they see as disadvantageous to it , and maybe selling enough doubt has enough effect on the margins to benefit them in the mid-term benefit the Republican Party in the midterm election.
S1: I mean , is this part of a larger pattern that you see , maybe to undermine the democratic process?
S2: Yeah , it's a deep irony at stake here in which the Trump administration has called out the integrity of elections , has , um , disputed and made claims on the basis of confidence in the elections. And they have engaged at the same time in practices that do that very thing of undermining the confidence in election and destroying the integrity of elections. And so I don't want to sort of get into the minds of members of the Trump administration , but is a troubling form of actions and behavior that will have consequences for elections and American democracy , both in the short term and as we think about 2028 , in a couple of years.
S1: It's always hard to get into the minds of people and to sort of know what intent is. But impact , though , is something that is is driven by data and something that we can see. What's been the impact of these decisions so far. Right.
S2: Right. The impact is that states are spending money to try to anticipate in anticipation of this executive order coming into effect. What we don't know is , you know , the Trump administration has admitted that these citizenship , this citizenship lists , if it does come into being , is probably going to be incomplete. And what the states are going to have to do is engage in some sort of activity or actions that are designed to address this incompleteness in the citizenship lists and to also insulate themselves from prosecution by the federal government. So there's costs that are being incurred. And then there's also from the voter perspective. Will this deter individuals from engaging in Mail-In voting. And that might not seem that problematic because you might say that they could vote in person. But for some individuals , Mail-In voting is the best and the primary means by which individuals votes for a variety of reasons for distance from the polls , ability to get to the polls , a variety of reasons why people might do it. And so , to the extent that these actions will deter people from engaging in Mail-In balloting because of growing distrust of the system , that could be consequential in terms of turnout in the midterm elections.
S1: On that , how could all this chaos and confusion and confusion rather affect voter confidence?
S2: It could affect it in a in a very striking way , if voters lose confidence in a system that they trust and that they use , then they have one of two things that they can do. They could either use other means of voting if they can , or just choose not to vote. Choose to stay home if they have the sense that , you know , some folks that are involved in the system are engaging in practices that are designed to rig or undermine the system. They might decide to just stay home. And confidence in elections is critical for democracy. Confidence and elections is the reason why people turn out to vote. And having high turnout ensures that those who are elected are true representatives of the people , rather than just a part of the people that decided to turn out. And so this is a , for me , a hugely consequential feature of election confidence. And I think that these this executive order and is is one that could undermine confidence in the elections.
S1: Do you think our courts are equipped to really navigate this influx of election related cases so close to the election?
S2: I don't know if they are equipped Um , and , you know , the court is very divided , and it's notable that this emergency order is a 37 page opinion , which is quite unusual. It's a very long emergency emergency opinion in which you have three different opinions that are issued. And you have a court that seems to be very divided on how to manage these types of disputes. And so these these challenges to election practices and procedures are going to continue , and they're going to grow a pace as we get closer to the elections. And there's a important question as to whether the court is equipped to manage these controversies or whether it will just decide that these challenges to the election procedures are too late , and therefore they allow an election process to proceed , even though those procedures may or may not undermine or advance confidence in the election.
S1: You know , what kind of precedent could this Supreme Court decision set for future election related legal questions.
S2: Yeah , I think that one of the questions that arises is , you know , when the the question that we , you know , discussed early in terms of when is it too early to bring a suit and when it's too late. Right. And so I think that litigants seeking to challenge election procedures are going to have to navigate that very tricky timing issue. And you're going to see in the future there's an opportunity for the administration and other legal actors to game it. Right. They could game it by , you know , perhaps enacting a law at a point in which , you know , it may be too late to challenge or enacting a law that operates in a way that makes the two soon problem emerge. You know , we just don't know how this is going to how this is going to unfold. But my I think that that concern about how to actually challenge these , um , orders or laws going forward , in light of the new embrace of or this embrace of the ripeness doctrine is going to be a question that is going to emerge going forward.
S1: Who's impacted disproportionately by all of this? Voters.
S2: Voters. Right. Voters who just don't know what's actually happening. Right. So you have headlines in major newspapers say , saying that the Trump administration's mail in ballot procedures allowed executive orders out to go forward. And it says for now , but for many voters , you know , distinguishing for now and forever is , you know , it's a hard distinction because many of us aren't necessarily equipped with knowledge of of how the legal process works. We don't necessarily know what it means for a temporary injunction to be lifted or to be adopted. We don't know how long these procedures are going to stay in place. And to the extent that you read these headlines and you have doubts about the election due to those headlines , voters are harmed by these tactics , by these attempts to change the election system.
S1: Well , California have to take anything , make any extra considerations in all of this?
S2: Well , California is will certainly have to because it's an entirely mail in ballot state. Right. And so they are going to be a particularly , uh , a particular target for this law. And , you know , the Trump administration has always had California in its target as as a state that it seeks to target. And so to the extent that you have this law that requires state officials to ensure that they are only sending ballots to eligible officials , it's probably going to have a chilling effect on their activity as well , because to the extent that they know that the Trump administration will likely target them , they might be a little conservative about who they send mail in ballots to and as a result. Those who are still eligible to vote , but for which the state official doesn't feel comfortable sending a ballot to them because of fear of prosecution will be denied. Essentially the vote because they might not receive a mail in ballot , right? So that is important. And California could be particularly impacted by this law.
S1: Well , that's something we will keep an eye on. I've been speaking with Bertram Ross. He's a professor of law at UC Berkeley. Professor , thank you so very much for joining us and for your insight.
S2: Thanks for having me.
S1: That's our show for today. I'm your host , Jade Hindman. Thanks for tuning in to Midday Edition. Be sure to have a great day on purpose , everyone.
