Kavanaugh throws Trump 'a lifeline' on mail ballot rules despite Supreme Court loss before midterms

Brett Kavanaugh, President Donald Trump's "hero" Supreme Court justice, isn't closing the door on the United States Postal Service (USPS) enacting Trump's ballot-mail rules in the future, although he agreed with the majority that implementing them ahead of the 2026 midterm elections is too soon.

"In my view, based on the briefing the Court has received at this interim stage, there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority," Kavanaugh wrote in his concurring opinion in United States Postal Service, et al. v. California, et al.

The concurrence comes roughly three months after Kavanaugh laid out a legal pathway for Trump to implement his executive order curtailing birthright citizenship in his concurrence in Trump v. Barbara. Kavanaugh also offered a blueprint for implementing Trump's sweeping tariffs in his dissent in Learning Resources, Inc. v. Trump.

"I would note though that Justice Kavanaugh threw the government a lifeline by saying that he views it as likely that they do have the statutory authority. And I think if you read the dissent, you can see where Justices Thomas and Alito are on questions like that as well," Jason Snead, executive director of Honest Elections Project, told Fox News Digital.

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The Supreme Court on Monday denied the Trump administration’s emergency request to lift a lower court injunction blocking the U.S. Postal Service rule, ruling that the government was "unlikely to succeed on the merits" of its challenge.

The decision leaves the rule blocked for the 2026 midterms after ballots have already been sent. But as the litigation continues, the case could return to the Supreme Court.

"I think there's a fair chance that it winds back up in front of the Supreme Court eventually," Snead told Fox News Digital.

A dissent written by Justice Samuel Alito and joined by Justice Clarence Thomas also raised questions about whether the policy could ultimately survive the legal challenge and take effect before 2028

"I do think that as a practical matter, the rule is not going to be implemented in time for the midterms. I think that's a done deal at this point. But I do hold out hope that there will be some additional litigation over this that could allow this rule to be implementing ahead of the 2028 presidential election," Snead said.

The Postal Service rule requires federal ballot-mail envelopes to include an election-mail logo, be scannable by high-speed processing equipment, and carry a specialized barcode unique to each voter. States would also have to upload certain voter information to a Postal Service portal.

A coalition of 24 Democratic state attorneys general sued the Trump administration, alleging the rule violates the Constitution's Elections Clause, which grants Congress the power to regulate elections. The Trump administration argued the USPS is regulating the mail, not election procedures.

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"So this case is still alive and well, and I think that Kavanaugh has given us all some hope that as it progresses eventually, this rule might be allowed to go into effect hopefully in time for the 2028 election since the left has successfully killed it for 2026," Snead continued.

Iowa Solicitor General Eric Wessan also pointed to timing as a major factor, noting that earlier litigation and an injunction in Massachusetts delayed the Postal Service’s ability to publish the final rule.

"So I'm not surprised now, close to the deadline when ballots have to go out to people that the Supreme Court took the approach of maintaining the status quo, although I think that Justice Alito's dissent highlights a lot of issues with the approach taken by the majority, and I would not be sure that the same result would be what the Supreme Court reaches in advance of, for example, the 2028 election," Wessan said.

Alito, joined by Justice Clarence Thomas, dissented, arguing that the government had made the necessary showing for a stay. He also questioned whether some plaintiffs had standing and described that those plaintiffs relying on a "Hail Mary pass" the Supreme Court has previously said "rarely succeeds."

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"The hail mary passes seem to be succeeding to a certain extent," Wessan said. "So the president's executive order was issued five months ago, and the injunction followed pretty shortly after. And as the Supreme Court recognized in the litigation earlier, that injunction against the executive order was improper."

"But the amount of time that it took to get that resolved by the Supreme Court put the Postal Service in a very tough spot timing-wise with rolling it out for the election coming up in November, especially because states are on the verge of having to send ballots out, whether to the armed services or otherwise," Wessan continued.

Abhishek Kambil said the lack of a fuller explanation from the court’s majority stood out to him.

"I think the biggest surprise was the fact that it came with an unreasoned order, especially right after they granted a stay in Missouri, which was also on an unreasoned order. So, in cases like this, where there's a lot at stake, you would hope that in in in a stay opinion that the Supreme Court would explain its reasoning," Kambil said.

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"So, I think the biggest thing that surprised me was the lack of explanation, especially given Justice Alito had a pretty methodical dissent explaining all the ways the majority got wrong, and we don't know exactly how the majority decided to deny the stay," Kambil told Fox News Digital.

Wessan said that he expects the rule to remain sidelined this year while leaving open the possibility of a different outcome later.

"This rule won't be in effect for the 2026 election, but it very well may end up in effect for the 2028 election, and this is just one of many actions the administration is taking to help with voter integrity," Wessan said.

Snead argued that without a looming election, Democratic states may have a tougher time fighting against implementing the USPS rules.

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"So they're going to have a difficult time and a steeper hill to climb if they're trying to explain in 2027, for instance, why they can't possibly comply with basic rules like this over a two-year time frame," Snead told Fox News Digital. "And just so folks understand what we're talking about. We're talking about taking best practices about mail ballot envelope design that have been long standing and making that mandatory guidance."

"And we're also talking about getting lists of eligible mail voters that states already have so that the Postal Service can essentially create manifests and that will allow them to know who they're sending ballots to and it will allow those ballots to be tracked. So this is a very basic, very simple thing," Snead continued.