The most recent temptation of John Roberts

This is presumably the case that will determine whether the Supreme Court will allow Donald Trump to initiate a frontal attack on American democracy in November:

The Trump administration is appealing a judge’s ruling that blocked limitations on mail voting before the midterm elections, the latest twist in a court fight unfolding days before the first states begin sending out mail ballots for the pivotal November elections.

The notice of appeal filed Friday comes after a federal judge in Boston handed down a new decision blocking implementation of an executive order from President Donald Trump for the next two weeks.

The Supreme Court previously allowed the plan to move ahead on procedural grounds, but hasn’t decided whether it’s legal. The U.S. 1st Circuit Court of Appeals will next consider the case, though it could soon be back before the nation’s highest court.

Under Trump’s executive order, the U.S. Postal Service could refuse to deliver ballots from states that do not submit lists of eligible voters and follow a uniform envelope style. The White House calls the plan a set of “commonsense measures” aimed at protecting ballot security, and calls the order blocking it “unreasoned and unlawful.

Alexis Romero has the best account yet I’ve seen of the wide array of bad faith procedural moves that the Roberts Court has used in the past to undermine election rights on behalf of Republicans, and that could be used again in this cycle:

There’s a more twisted point that’s worth zeroing in on, and that’s the relationship between Trump’s mail ballot–suppression efforts and the Supreme Court’s horrid election-law jurisprudence of the past few years. Jackson flags this exact relationship in her dissent, as the court’s new ruling Monday “lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs.”

The nightmare works primarily by manipulating timing. As state and federal governments began taking increasingly controversial election actions over the past decade, such as gerrymandering or throwing out lawful ballots, voters and civil rights groups have filed more suits. But the Supreme Court has developed two new limitations on how a lower court is able to rule on these election issues. Understanding both these limitations together is key to seeing just how much of a democratic crisis this court is enabling.

First, in a case from a couple of terms ago called Trump v. CASA, the court held that lower district courts do not have the authority in most instances to issue what are called nationwide injunctions. A nationwide or universal injunction is just an order requiring the government to stop implementing an unlawful rule against the entire country. Instead, after CASA, the court can usually prevent only a losing government from enforcing its unlawful rule against the specific parties that filed the lawsuit.

But after hamstringing what types of remedies a court can order, SCOTUS also restricted when any orders can come down with its second restriction. This is the controversial Purcell principle, which states that courts are not permitted to change voting rules close to Election Day. This restriction holds true even if the government’s own delay is the reason the lawsuit arrived so late. Purcell creates an absurd situation in which a plaintiff can challenge an election rule in court, the court can agree the rule is illegal, but then no one is allowed to remedy the illegality because it’s too close to an election.

Now pile onto Purcell Monday’s mailing order. In its unsigned opinion, in which the three liberal justices dissented, the majority alleges that it is simply too early to challenge the forthcoming USPS rule because, well, who could possibly know what that rule might say? It characterizes the lower court as engaging in “a string of speculation” about what the federal agencies might do when, and how that speculation illustrates that the state’s claims aren’t ripe for review. The majority goes so far as to assert that the lower court “had to speculate” about whether the USPS would even issue a final rule whatsoever. This charge is especially absurd given that the USPS had already issued the final rule days before the Supreme Court’s order, publishing the 95-page final rule last Friday.

To recap: Purcell punishes a plaintiff in voting cases for being too late to court. But Monday’s order says that a plaintiff, like the states that sued, can also come to court too early. See the issue? The court’s precedents are creating an invisible tightrope very few plaintiffs can cross successfully. And even if the plaintiffs eventually succeed in challenging the EO, thanks to the CASA decision, only voters in the blue states that sued will likely get any protection.

What makes this tightrope even harder to navigate is that these legal developments don’t happen at the predictable cadence Americans might want from their election procedures. It’s the government itself that controls when it releases drafts and final versions of all these rules and regulations. The government can therefore strategically delay or speed up parts of the process, as it’s doing here, based on what it needs to argue to the judge in front of it and when. Jackson rightly describes this “Catch-Me-If-You-Can approach” to legal strategy as what it is: a cynical gotcha game designed to dodge legal accountability for as long as possible. And all in support of an effort to sow chaos before a midterm election that the president believes will rebuke his authority.

And needless to say, the midterms are not only set to repudiate the president that is joined at the hip with the Supreme Court’s Republicans, control of the Senate is what will determine the extent to which Trump will be able ot continue to MAGAify the federal judiciary. When dealing with a Court this nakedly partisan, this is a dangerous conflict of interest indeed.