The Conversation's politics and legal affairs editor, Naomi Schalit, spoke with John J. Martin, an election law scholar at Quinnipiac University, about the U.S. Supreme Court's Aug. 24 ruling on mail-in voting, what lies behind it, and what it signals may be ahead. The ruling did not address the constitutionality of the executive order at the center of the dispute.

What is the background to the Supreme Court's ruling on Aug. 24?

Back in March, President Trump issued an executive order meant to, in his words, maintain "public confidence in election outcomes" and "enhance election integrity" in mail and absentee voting in federal elections. A few provisions were included in that executive order.

The first would require the Department of Homeland Security to maintain a state citizenship list of residents in those states who are U.S. citizens, above the age of 18, and therefore eligible to vote in federal elections. The Department of Homeland Security would share these lists with each state at least 60 days prior to each federal election.

The next provision orders the U.S. attorney general to prioritize the investigation and prosecution of state and local election officials who issue federal ballots to ineligible voters, such as noncitizens.

Next, Trump ordered the U.S. Postal Service to devise rules that could substantially alter the ability of states to use mail and absentee ballots in federal elections. What this could look like, for example, is a requirement that a mail ballot used in a federal election has to look a particular way.

The executive order also gives states the option of providing the Postal Service, at least 60 days before a federal election, a list of voters entitled to vote by mail or by absentee ballot. But that deadline conflicts with a federal rule that states must give voters the opportunity to register to vote at least 30 days prior to an election. So states might not even know, 60 days prior to an election, who was entitled to use an absentee or mail ballot.

Finally, the big one: the executive order directs the U.S. Postal Service not to transmit any mail or absentee ballots from voters in federal elections who do not appear on a mail-in or absentee voter list compiled by the service — presumably based on the list provided to it by the states, although the executive order isn't fully clear on this point.

So, if a voter isn't on that list, the Postal Service can just ditch that person's ballot?

The executive order tells the Postal Service that it should not transmit that ballot over mail.

But the Supreme Court did not rule on the legality of the executive order, did it?

No. A number of states sued the Trump administration quickly after the executive order was issued, arguing that the president simply doesn't have the authority to implement these policies. The states specifically asked for a preliminary injunction in federal court, which allows a court to pause the government's actions before the case is fully resolved. The lower court ultimately issued the preliminary injunction, temporarily blocking implementation of the executive order.

The Trump administration argued that the states lacked something called standing, which requires a plaintiff to suffer an actual or imminent injury in order to bring a case in federal court. Accordingly, the administration contended, the preliminary injunction should not have been issued.

The Supreme Court ultimately agreed with the Trump administration, contending that because a lot of the executive order either required the states to do nothing or had yet to be fully realized, the states' case was premature — they had yet to suffer an injury.

That procedural ruling matters because it leaves the substance of the dispute unresolved for now, which means the legal fight can continue only once a concrete rule or injury exists to challenge.

But it's not permanent that the states lack standing. They did not have standing at this moment, until the rules to come out of this executive order had been put into effect — is that correct?

That's correct. So, theoretically, if the Postal Service were to propose a rule that would forbid the transmission of ballots that don't meet its standards, and that rule were ultimately adopted, then the states would have standing to bring the case.

The Constitution gives the states the power to administer elections. What power is the president asserting here that would legitimately allow him, or the executive, to demand these changes?

The U.S. Constitution certainly makes states the default administrators of elections, and that includes federal, state and local elections. The federal government plays some roles in regulating elections, with the Constitution allowing Congress the ability to override states' regulations of the procedural aspects of congressional elections.

The Supreme Court has also found that Congress has some authority to regulate certain aspects of presidential elections, such as in the area of campaign finance. And under the 14th and 15th Amendments, Congress has the ability to implement laws that fulfill the equal protection clause or the 15th Amendment's prohibition against racial discrimination in elections. That's how we get something like the Voting Rights Act, and that can apply to federal, state and local elections.

But states still remain the predominant administrators of elections, and that background is important because disputes like this often turn on which level of government is actually authorized to change election procedures.

And the president's role in elections?

It's hard to find any constitutional source that backs up the idea that the president has unilateral authority to decide how elections are run, even federal elections.

Maybe the strongest argument that can be made in this case is that the president has authority over officers in the executive branch of the federal government. So the president could certainly direct executive officers, such as the postmaster general, to do things or not do things. But that doesn't mean the president can tell these officers to do whatever the president wants in violation of the Constitution.

That is a very long way of saying, in Martin's assessment, that the president "really doesn't seem to have authority to be doing what he's doing right now."

This was a procedural decision by the Supreme Court, and there is also a similar case brought by voting rights groups that the justices may consider. In the end, is everybody just playing a waiting game — waiting for the substance of this executive order to reach the Supreme Court, for the Court to say, sorry, President Trump, you can't do it, case closed?

The Supreme Court cannot avoid deciding this on the merits of the case.

Regardless of how and when this all proceeds, will it have an effect on the upcoming midterms?

Election officials need to know how they're supposed to manage their elections, and they need to know this months in advance. They want to know: Are we actually able to implement mail voting, or absentee voting, the way we've always done it? Or is this executive order going to "completely throw a monkey wrench into the process" — forcing officials to rethink everything and wait until they receive a list from the U.S. Postal Service confirming that the voters they believe are entitled to these ballots are, in fact, entitled to these ballots?

And voters might be fearful that if they try to vote by mail, it won't be counted. That could discourage people from voting through a process that has made it easier and more straightforward to vote for certain segments of the population — and really everyone.

— John J. Martin, Assistant Professor of Law, Quinnipiac University

This article is republished from The Conversation under a Creative Commons license. Original article: "Narrow mail-in voting ruling by Supreme Court adds uncertainty to midterm elections without addressing constitutionality of Trump's executive order".