Coloradans can still expect to receive their ballots in the mail in early October, regardless of this week’s U.S. Supreme Court ruling in favor of President Donald Trump’s anti-mail ballot executive order, Secretary of State Jena Griswold said.
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The high court on Monday rejected a challenge from 23 states, including Colorado, that sought to stop Trump’s March executive order restricting mail voting. The court did not give Trump final approval for his attempt to exert federal control over mail-in voting, however. Instead, a majority of justices, in an unsigned order, decided that the states could not prove harm from the executive order, and thus had no standing to sue — yet.
“Where we are right now, today, nothing has changed,” Griswold said Tuesday in an interview, referring to the Nov. 3 general election. “But there is this ongoing fight that is evolving.”
The decision was the latest development in just one of several ongoing fights over the executive order. In another case, a separate court decision still effectively halts the order’s implementation. This week’s ruling is also expected to be a precursor to more legal fights.
And with less than 70 days before Election Day — and just over a month before county clerks start mailing ballots to Colorado voters — it’s not clear what changes would even be feasible.
Griswold said it would be “extraordinarily hard for states to change the voting processes,” even if the Trump administration were somehow successful. The U.S. Constitution holds that states oversee their own elections, though Trump’s challenge has no precedent.
“Ultimately, I can’t foresee or predict what the courts will say,” Griswold said. She noted that mail voting remains overwhelmingly popular among Coloradans of all political stripes, with more than 95% of voters casting their ballots that way. “I am optimistic, and I hope they squarely plant themselves on the right side of history.”
Still, the Trump administration heralded the ruling.
“This is a major win for the security of American elections,” Lauren Bis, a spokesperson for the White House, said in a statement. “These are commonsense measures that protect the security of mail-in ballots and ensure only Americans are electing American leaders. This Administration will continue to lawfully enact the agenda President Trump was elected on — which includes the safety and security of our elections.”
As it stands now, Colorado ballots must go out to overseas voters by Sept. 19. County clerks can start sending ballots to most other voters Oct. 2, about a month before the election. Regular ballots must be returned by 7 p.m. on Election Day.
In his executive order, Trump sought to create a national voter list that the federal government could use to determine people’s eligibility to vote by mail. Part of that would be overseen by the U.S. Postal Service, which on Friday unveiled rules to carry out that task. They require specific formatting for envelopes containing mail ballots and say states must use an electronic system to identify to the Postal Service who is voting by mail. If states don’t comply, their mail ballots wouldn’t get sent.
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Andrew Garber, an attorney with the Brennan Center for Justice at the New York University School of Law, said those rules will almost certainly set the stage for the states to continue their challenge. Garber is one of the lawyers representing the League of Women Voters of Massachusetts in a separate legal challenge to the executive order.
That case resulted in the still-active injunction halting the implementation of the executive order.
“The president still has no authority to determine who gets to vote by mail,” Garber said of the current landscape. “And the U.S. Postal Service is still legally required to deliver the mail.”
The fate of the executive order remains to be seen, even if Garber and others are confident that Trump overstepped his authority. He said any attempt to outright cancel mail-in voting would be an “impossible needle to thread.”
Instead, he warned of mass confusion and worried about “rushed, flawed implementation” if the new rules were allowed to proceed. The Postal Service isn’t designed to gatekeep which voters can receive ballots — and trying to force a new system in place with only a month before voters start to receive ballots is a recipe for chaos, he said.
The ongoing, multifront legal fight — with multiple cases in multiple stages of litigation — also carries its own risk of confusing and disenfranchising voters, he said.
“It’s fair to say right now (that the fight over mail ballots is) more smoke than fire,” Garber said. “With the caveat that smoke is still really harmful.”
The Associated Press contributed to this story.
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