'A legal argument that is just BUNK'： Experts SLAM Trump’s latest voter suppression push at SCOTUS

We should be very clear, Donald Trump wants to disrupt the elections in 2026. He's been ordered by a court to not move forward on his plans to kind of redo how he wants to do vote by mail in his own vision of what he thinks should happen in an election. This is basically the president's attempt to pick and choose where he wants to count ballots. And it's unconstitutional, it's illegal, and we're going to continue to push really hard on this. Hi again, everyone. It's five o'clock in Washington, D.C. I'm Jackie Alimany in for Nicole Wallace. Fighting till the bitter end. The November midterm elections are right around the corner and Donald Trump is continuing his crusade to transform mail-in voting, even as some states have already kicked off their mail-in voting programs. His administration filed yet another appeal to the U.S. Supreme Court yesterday following a district court judge's ruling that extended the injunction against his executive order. Trump's order, if allowed to continue, would overhaul how the U.S. Postal Service mails out and delivers ballots sent in the mail. In her ruling, Judge Indira Talwani said that what Trump wants to change, quote, threatens the disenfranchisement of millions of United States citizens who seek to vote by mail. It's a practice that has been around since the Civil War, becoming much more popular in the last few decades. Even Trump himself voted by mail as recently as last month. Yet he continues to rail against it, saying, without evidence, that mail-in voting leads to widespread fraud. A Brookings study last November found that mail-voting fraud is very out of every 10 million ballots cast. That's 0.000043 percent. But for this administration, that's besides the point. And now the Supreme Court may soon weigh in on Trump's order. Ballots have already been mailed out in North Carolina and Wisconsin for this year's midterms, as many more states will send out their ballots this month. As Democracy Docket points out, more than 51 million mail ballots will be sent to voters in the coming weeks just from the District of Columbia and the two dozen states that are challenging the Trump administration's 11th hour attack on mail voting. The pressure that would be placed on election workers and the election systems to adapt to Trump's new rules is something that Judge Talwani addressed in her decision. Quote, having considered this series of hurdles for officials against the backdrop of an impending election and mindful of the fact that any minor malfunction will result in the denial of mail ballots, the court concludes that disenfranchisement for plaintiffs, organizations, members, regardless of residence, is practically inevitable. And that is where we begin this hour with VoteBeat senior national reporter Diane Nisbaum. And also joining us, legal analyst Barbara McQuaid. She is a former U.S. attorney and now a law professor at the University of Michigan and founder and CEO of All In Together, Lauren Leader. Thank you all so much for joining us this Labor Day. Barbara, I want to start with you, because that language from Judge Talwani, which says it is inevitable that people are going to be disenfranchised. How unusual is it for a judge to make a finding like that? And do you feel that it changes at all about the way that the Supreme Court is going to potentially weigh in on this? Well, it's actually an essential finding in this situation because at this preliminary stage of litigation, irreparable harm is something that courts have to look at. And both sides have argued that they would suffer irreparable harm unless they win. On the plaintiff side, it means voters will be disenfranchised. On the Trump administration side, they won't get the rule they want. When you weigh those two things and you think about the consequences of those harms, it seems that delaying this rule implementation, at least until it can be more soundly implemented, is a far lesser harm than what could happen with disenfranchisement of voters. There was a whistleblower report last week that said that because of the problems that they're having at the Postal Service, implementing this new portal system, if even one ballot is blocked because of an improper barcode, it could lead to the blocking of an entire batch of 10,000 ballots. And so for that reason, it very much is appropriate to look at the consequences and the irreparable harm that could be suffered by voters. And Diane, I'm so sorry I accidentally butchered your last name, Nissenbaum. Thanks for joining us today. I want to ask you why we're in this very messy and confusing situation to begin with, because as we are all aware, as I've read on air countless times over the past few weeks, the Supreme Court already had the chance to shut this down, but they decided not to rule on the merits. Why is that? Why are they doing what they're doing? You know, as you know, this is a president that has made voter fraud a cornerstone of his administration, and he's been pushing for this since the beginning of his second term. And, you know, it comes down to the question that the Constitution gives the power to regulate federal elections to states and Congress, not the president. And this is an issue that the court really has to wrestle with. When this came up the first time around, it was sent back on a procedural note because the rule wasn't in place. And while they were writing their opinions, it took them a month to write that opinion, they did issue the rules, and now it's back before them. And in that first ruling, they did say, time will tell whether or not we're going to decide whether or not this is constitutional or not. And really, I think the question that Barbara raised here about balancing harms is really the big one here. The administration is saying they're trying to prevent voter fraud. And as you said, at the beginning, it's so rare in mail-in ballots that to potentially disenfranchise tens of millions of people voting, what you would think would outweigh the potential for voter fraud in mail ballots. And, Lauren, I know that you are often very deep in the crosstabs of polling. I'm wondering if you're seeing Trump's rhetoric around mail-in voting and voter suppression writ large registering it all amongst voters. And if you have any sense of whether or not this is actually going to impact disproportionately Trump voters, because they're the ones who are listening to him day in and day out, fearmonger over our voting system? Well, you've got to also put this in context, Jackie, which is that he's been doing this as long as he's been in political life. And that is, he has used his pulpit from nearly the beginning to sow doubt into the validity of elections. And, of course, he's never challenged the elections that he's won. But any election that he's lost, he has doubled down on every wild claim of voter fraud, none of which has ever proven to be true. And, of course, that led to the riots on January 6th. And now he's using the sort of bludgeon of executive power to try to justify leveraging the Postal Service, which, you know, in its entire history has never had a role in regulating the way that elections are conducted. And I think if you read John's, which I know most people aren't going to do, but, you know, the Solicitor General, John Sauer, in his appeal to the court this morning, and I'm no Barbara McQuaid, but I did read it. It's remarkable in its ability to just sort of completely manipulate reality, to make a legal argument that is just bunk. And the idea that there are these harms being caused because the Postal Service has not been able to determine whether the voter rolls and the name on the envelope match, I mean, it makes no sense. And they're completely unprepared to manage this, you know, in a short period of time or, frankly, ever. So it does sow doubt. Americans, we've seen this line for a while. Americans are very concerned about the safety of their ballots. And he's just making it worse. And it feels very intentional and part of a very long-term playbook that this president has used over and over again. And, Barbara, I'm wondering if you can try to read the tea leaves for us on what you might be expecting from this Supreme Court. They've obviously ruled very expansively, especially on issues related to, quote, national security when it comes to executive power. But they also, in some cases, when it comes to the agencies, actually reined in Trump's power and what the administration has tried to do, if those things haven't been explicitly written in the statute. So what are you expecting this time around? Yeah, it's, you know, it's always a little bit tricky to try to predict what the court might do. But Justice Jackson, who is in charge of appeals and requests out of the First Circuit, has given the plaintiffs until September 9th, that's Wednesday, to respond. And then I expect we will get a decision very quickly. I think when it comes to separation of powers, even though this court has taken up a strong unitary executive theory, the Constitution is quite explicit into who governs elections. It's the states in the first instance having the time, place, or manner as amended by the Congress. And Congress has the right to change the rules if it wants to, as it has done with the Voting Rights Act, as it has done with the Motor Voter Law and other kinds of things. There is not a role for the executive branch here. So I won't give you any bet on what Justices Alito or Thomas might do, but I think the majority of the court will rule in favor of the plaintiffs and say that there is no role for the executive branch in the administration of elections. And Diane, I am wondering, in terms of a worst-case scenario, especially in places like North Carolina and Wisconsin, where mail-in ballots are already out, what happens? I mean, are these votes just not counted? Well, the federal government, in their motion to the Supreme Court yesterday, said all the votes that go out will not be subject to these rules. So North Carolina will be exempted. Any ballots that go out between now and any ruling that they get will be grandfathered in. But to me, that creates kind of a new question, is now you're going to have a bifurcated system where some states are operating under one system, other states are operating under another system. You do have the possibility that some states will refuse to cooperate with the system and not cooperate at all. And then nobody in that state would be able to vote by mail through the USPS. So even the Trump administration admits that there's incredible potential chaos on the horizon, however they rule. And so I agree with Barbara. It seems that, in reality, they should rule for the plaintiffs for this election at least. But as we know, this is a court that you can't predict what they're going to do.