The Supreme Court handed President Donald Trump a defeat Monday night, blocking U.S. Postal Service rules that could have let officials withhold delivery of mail-in ballots, but a concurrence from Justice Brett Kavanaugh suggests the fight is far from over, according to a new analysis.
The court’s brief and cryptic order suggests Kavanaugh remains open to allowing the Postal Service to control ballots somewhere down the line – perhaps even for the 2028 presidential election cycle, CNN’s Joan Biskupic argued in a Wednesday editorial.
“In his brief concurrence, Kavanaugh wrote, ‘there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority,’” Biskupic wrote, “appearing to provide another possible vote in favor of Trump’s efforts.”
To support her thesis, Biskupic cited comments from Donald Verrilli, a former U.S. solicitor general in the Obama administration, during a recent Georgetown Law panel discussion.
“As the rest of this electoral cycle unfolds, and into 2028, I think there’s going to be a lot of turbulence around these issues,” Verrilli reportedly said.
Biskupic believes Kavanaugh hinted the rule wasn’t necessarily doomed on the merits and a revised version could survive a future challenge, potentially in time for the next presidential election.
The justices have moved cautiously through election-related cases without signaling how they’d rule if a dispute actually determined control of Congress or the presidency, she argued.
In June, the court rejected a Trump-aligned challenge to Mississippi’s ballot-receipt deadline by a single vote, with Justice Amy Coney Barrett writing that “election fraud and its appearance are serious issues” that must be resolved “through the democratic process.”
Alito dissented then too, warning of “voter fraud that may further undermine Americans’ faith in the integrity of this country’s elections.”
With roughly 30 percent of voters nationwide casting ballots by mail — including many military, elderly and disabled voters who depend on it — reviving Postal Service screening authority could reshape how a meaningful share of the electorate votes.
Trump, who has attacked the ruling and his own appointees over it, has shown no sign of dropping the push, and Attorney General Todd Blanche said this week the administration intends to keep pursuing mail-voting restrictions.
Whether Kavanaugh’s fair-prospect language becomes the seed of a future ruling may not be clear until the stakes are far higher than they were Monday night, but Alito already made clear where he would land on those disputes, Biskupic wrote.
“Alito further compared some of the challengers’ claims to a ‘Hail Mary pass … unlikely to be successfully completed here,’” Biskupic concluded.
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