When Voting Has Already Begun With Richard Wilson

What happens when the federal government attempts to impose sweeping new requirements on mail voting only weeks before a national election—and after states have already designed ballots, purchased envelopes, prepared election systems, and in some places begin the process of sending ballots to voters?

That question lies at the center of United States Postal Service, et al. v. California, et al., a case that moved rapidly from the United States District Court for the District of Massachusetts, to the United States Court of Appeals for the First Circuit, and finally to the Supreme Court of the United States.

In this episode of Hot Topic, Bold Talk, Dr. Jackalyn Rainosek and attorney Richard G. Wilson take listeners step-by-step through a complicated case that ultimately raises a remarkably fundamental question:

Who has the constitutional authority to establish the rules governing American elections?

The controversy began with President Donald Trump’s March 31, 2026, executive order directing the United States Postal Service to undertake rulemaking affecting ballot mail. The Postal Service ultimately issued its final rule in August, shortly before the November 3 midterm election. The rule imposed substantial new requirements on state and local election officials using the mail to send ballots.

Those requirements were not simply technical changes.

States could be required to redesign ballot and return envelopes, obtain Postal Service approval for those designs, use voter-specific Intelligent Mail barcodes, and upload voter information into a USPS electronic system. Under the rule, failure to satisfy specified requirements could prevent ballot mail from being transmitted. The District Court record also documented that many jurisdictions had already ordered or printed election materials and that the USPS electronic portal required for part of the new process was not yet operational.

That created one of the central practical issues Richard and Jackalyn explore in this podcast:

How does an election administrator completely redesign part of an election system when the election is about to be underway?

The District Court concluded on September 4 that the plaintiffs had demonstrated the requirements for a preliminary injunction. Among the court’s concerns was the constitutional allocation of election authority. The Elections Clause gives state legislatures authority over the “Times, Places and Manner” of congressional elections, subject to Congress’s power to alter those regulations. The court concluded that Congress had not expressly delegated its Elections Clause authority to the Postal Service to regulate the manner in which elections are conducted.

That distinction becomes central to Richard and Jackalyn’s conversation.

The United States Postal Service unquestionably possesses extensive statutory authority to operate the nation’s postal system. Yet possessing authority over the mail is not necessarily the same thing as possessing authority over elections. The District Court examined the Postal Reorganization Act and found no specific congressional delegation giving USPS authority over the treatment of election mail in the manner contemplated by the new rule.

The discussion therefore moves beyond mail ballots and into the constitutional principle of separation of powers.

The Constitution does not assign the President a general power to establish election rules. Congress possesses constitutional authority over federal election regulations, while states retain substantial responsibility for administering elections. The question in this litigation became whether an executive-branch initiative implemented through the Postal Service had crossed the line from regulating postal operations into regulating the manner in which elections are conducted.

The First Circuit confronted that issue when the federal government and intervening states asked it to stay the District Court’s preliminary injunction.

On September 10, the appellate court declined to do so.

The First Circuit stated that the District Court had concluded the USPS Final Rule was likely unconstitutional, since the Constitution assigns election administration primarily to the states subject to changes enacted by Congress. It also emphasized the practical consequences: state and local officials would have had extraordinarily little time to obtain approval for new envelope designs, replace materials already purchased, develop technological systems for voter-specific barcodes, and use an electronic USPS portal that the court noted was not yet operational.

The appellate court concluded that the government had not made the strong showing necessary to obtain a stay. It agreed at that preliminary stage that the rule likely regulated the manner of holding congressional elections—an area the Elections Clause assigns to states and Congress rather than to an executive agency acting without congressional authorization.

Then the case reached the Supreme Court.

On September 14, 2026, the Supreme Court denied the government’s application to stay the District Court’s preliminary injunction. The Court stated that the government was unlikely to succeed on the merits of its challenge to the injunction and that the equitable considerations required for emergency relief did not favor granting a stay.

That meant the injunction remained in place while the underlying litigation continued.

Justice Brett Kavanaugh wrote separately and introduced an important distinction that Richard and Jackalyn discussed. Kavanaugh stated that there was at least a “fair prospect” that the Postal Service might possess statutory authority for the rule. His objection at this stage concerned its application to the 2026 election. He concluded that imposing the rule at that point would be arbitrary and capricious under the Administrative Procedure Act since election officials did not have sufficient time to implement it reasonably before the election.

Justice Samuel Alito, joined by Justice Clarence Thomas, dissented. They believed the government had met the requirements for a stay and raised objections involving standing, the plaintiffs’ legal theories, and the scope of the injunction.

That disagreement is important.

The September 14 order was not a final Supreme Court determination of every constitutional and statutory question in the case. It was a decision concerning emergency relief while litigation continued. The Supreme Court docket confirms that the government sought a stay of the preliminary injunction entered September 4 and that the Court denied that request.

And that distinction is one of the reasons this episode is worth hearing.

Richard Wilson brings the legal analysis: jurisdiction, statutory authority, the Elections Clause, the Administrative Procedure Act, standing, preliminary injunctions, stays, and the different reasoning offered by the judges and Justices.

Jackalyn Rainosek continually brings the discussion back to the human consequences behind those legal doctrines.

What happens to the elderly voter who depends upon voting by mail?

What happens to a person with a disability or limited mobility?

What happens to a member of the military stationed away from home?

What happens to Americans living overseas?

What happens to rural voters for whom transportation to a polling location may be difficult?

And what happens to election officials when the rules governing millions of pieces of election mail are changed after months of preparation?

These are not abstract questions.

They are reminders that election law eventually reaches an individual citizen standing—or sitting—somewhere in America, trying to exercise the right to vote.

Podcast 196 follows one case through three levels of the federal judiciary and shows how constitutional structure, administrative law, election administration, and the everyday act of casting a ballot can collide in a matter of weeks.

The episode also asks listeners to consider a question larger than this particular dispute:

When government possesses legitimate authority to make rules, what responsibility does it have to implement those rules in a way that citizens and public officials can realistically follow?

That is where law meets leadership.

And that is where United States Postal Service v. California becomes more than a lawsuit about envelopes, barcodes, and postal regulations.

It becomes a discussion about constitutional authority, governmental restraint, the orderly administration of elections, and the ability of qualified Americans to exercise their right to vote.

Episode Summary Points:

Executive Order & Postal Service Rules: Discusses the executive order regarding mail-in ballots for the November elections, empowering the Postal Service to set rules for election mail envelopes and voter lists.1
Judicial Pushback & Preliminary Injunctions: Explores how federal district courts and the Supreme Court handled preliminary injunctions against the Postal Service rules, ultimately protecting mail-in voting for the election.1
Irreparable Harm to States: Highlights the massive logistical hurdles and short timeframes that states like California and Texas faced, which would have disenfranchised millions of voters.1
The Purcell Principle & Election Timing: Examines the practical and legal factors around changing election rules too close to voting day and the importance of voter predictability.1
Missouri Congressional Districts: Analyzes a separate legal battle out of Missouri regarding state supreme court authority over electoral districts versus federal court interventions.

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Watch the episode here

Listen to the podcast here

When Voting Has Already Ready To Begin With Richard Wilson

Decoding Election Law: Inside The Postal Service Mail-In Ballot Executive Order

I am so delighted to have Richard Wilson back with me, because you all know what an outstanding lawyer he is, and he has the ability to explain to people like you and me who are tuning in to this. If you’re not a lawyer, we get to have an opportunity to really understand what’s happening in a case. Richard, I’m glad you’re back.

Thank you. Glad to be back.

I did a decent job of presenting some cases they might want to look at, but I am certainly not the lawyer in this group. The first thing I really need to know, and I think they need to know, explain this Trump executive order that was going to impact mail-out ballots. I’d like to start there.

The case we’re dealing with or discussing is the Postal Service v. California or California v. the US Postal Service. It is the case that concerned the executive order about mail-in ballots for the upcoming elections in November of this year. The executive order was issued March 31st of this year. It was order number 14399. What the order did was that it did not set any rules or regulations. Rather, it contained a lot of explanation about how much of a threat to this nation voter fraud is, and it then empowered the Postal Service to set rules regarding the design of election mail envelopes.

It required that the Postal Service get lists of registered voters who could vote by mail from each state, and that it would then not transmit any ballots it received, mail-in ballots. The Postal Service basically was supposed to, as it got each ballot, it was supposed to check and see, is the person receiving this mail on our list? If the person was not on the Postal Service’s list, it was directed not to send that mail to the voter. That was the executive order. Essentially, what it said is, we’ve got a problem, and Postal Service, you need to make rules that accomplish the following things.

Now, no sooner was the executive order issued than a lawsuit was filed by some private entities and quite a few states arguing that the executive order was not enforceable. That it was unconstitutional, that it violated other laws in the United States. The lawsuit ended up in Massachusetts. Initially, the Massachusetts District Court issued a preliminary injunction. We’ve talked about this before. You do not have a trial on the merits. You do not have the final trial. What the court did was prohibit certain things from taking place until the final trial occurs.

That preliminary injunction said that the Postal Service could not issue these rules controlling the election. The federal government then appealed that first order by the district court. That appeal went up through one of the federal courts of appeals, and ultimately to the Supreme Court, which said, “We’re going to grant the stay.” The focal point of the Procurator’s opinion granting the stay, or the order granting the stay, was that because the Postal Service had not put any rules in place yet, there was nothing for those states to complain about.

Essentially, what they were saying is, “Look, this is not right.” Until there are rules you have to comply with, there’s nothing for you to complain about. Interestingly enough, the US Supreme Court issued that order, I want to say, on August 13th, and on August 11th, the Postal Service had finally issued its rules. The rules the Postal Service put in effect, which the executive order said, “Here’s what you do,” those rules required that the states submit ballot envelopes, and return envelopes so that the ballots could be sent back to the states that met certain design requirements in regards to size of the envelopes and the like.

One of the requirements was a scannable barcode. It then required that they submit those envelopes for approval by the Postal Service. Only after the Postal Service approved those envelopes could they send them out to the people who were voting by mail. Whose information had to be uploaded to a system the Postal Service was setting up, but had not yet set up.

Now that we had the rules in effect, once again, the district court, because the issue was now ripe, issued a preliminary injunction all over again. It went through the same tortured path to the Supreme Court, which ultimately decided not to stay the preliminary injunction. The net effect of this is that Trump’s mail-in voting executive order, which was setting up a bunch of hurdles for the states to jump through, does not affect the current election.

Wait a minute. I want to ask something because I’m a little bit confused, and I want to be sure. In Massachusetts, what they said was, we’re going to establish this day. I’m going to use my simple terminology, but we realize that the states cannot follow through with this thing, and it is irrational what they’ve done. It then went to the US Court of Appeals for the First Circuit. They said the same thing, correct?

The Battle Of The States: California Leads The Charge Against Federal Overreach

Correct. They did, but the way it gets postured is, let’s just use the state of California. California was one of the plaintiffs. There were other states as well, but California was one of the plaintiffs. What the district court said is, California, you have proven what you need to prove. We’re not going to let the Postal Service do this. At that point, the US Government then appeals the decision and says. “We want to be able to do this. We want you to set the district court’s order aside.”

The Supreme Court did not do that. They maintained the stay. Now, one of the things that I think we may not get into, so I would like to mention it here. When reading your case out of Massachusetts, I was fascinated by the fact that 507 million in California alone used mail-in ballots. Colorado uses them. Hawaii only allows mail-in ballots. Utah, Vermont, Washington, and the District of all of those have loads of mail-in ballots.

The District of Columbia does the same thing as Hawaii. They have only mail-in ballots. I was thinking this is very obvious that it is an attempt to, because there is so much talk about these midterm elections and that it is going to be very serious, probably, for the Republican Party because of people’s view of what’s happening in our country. There is an attempt to do something. You named it well because it’s ridiculous. There is no way in the world any state could admit anything. I’m going to turn it over to you to give much more detail.

Going back to the district court to get a preliminary injunction, and we’ve talked about this before because this is not the first preliminary injunction case you and I have discussed. Every executive order practically is accompanied by someone asking for a preliminary injunction these days. You have to show a likelihood of success on the merits, meaning it’s more likely than not that you’re going to win at trial. In addition to that, you have to show that there will be an irreparable harm to you as the plaintiff if the injunction is not granted.

You have to show that if the injunction is granted, the hardship on the defendant here, the United States, would be less than the hardship on you if it were granted. It’s referred to as a balancing of the equities. The final factor you consider is the effect on the public as a whole, not just the parties to the lawsuit. Now, what you talked about is that I consider the risk the more interesting part of the analysis, which is, or the court’s opinion, which is the irreparable harm issue.

Let’s clear the hurdle of likelihood of success on the merits very quickly and focus just on the constitutional issue. The reason I say that is because the court did so at least with the constitutional issue, in a very quick fashion. Basically, what the district court pointed out was that Article One, Section Four of the US Constitution reads, “The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but the Congress may at any time by law make or alter such regulations except as to the place of choosing senators.”

Nowhere in the Constitution does it delegate any power to the president to choose how and when, and the manner in which elections are held.

Just as a random historical aside, that last clause, except for the place of choosing senators, was in the original Constitution because we haven’t always elected US Senators. Back 200 years ago, the way senators were elected was that the state legislatures would get together and elect the senators who go to Washington. It wasn’t done by registered voters. That is no longer the case. That is a historical exception that really has no effect now due to changes in the Constitution. Essentially what the district court said, getting back on point, sorry for going into the ditch for a minute.

No, that is fine.

Constitutional Hurdles And Irreparable Harm: Why The Courts Blocked The Order

Getting back on point, what the district court said is that nowhere in the Constitution does it delegate any power to the president to choose how and when, and the manner in which elections are held. This is a power that the executive branch, the president, and the Postal Service do not possess. That was the likelihood of success on the merits. What you were pointing out to the listeners is something the court considered with regard to the irreparable harm element. Again, irreparable harm does not talk about the cost of something from a dollar standpoint.

It is something more than cost. It is something that money cannot fix. In this particular circumstance, a major issue for the states is that, given the time frame, again, the Postal Service announced the rules on August 11th. At that point, some states were just days or weeks from sending their mail-in ballots out. What the states were pointing out as the irreparable harm is that we’re not going to be able to do this. In particular, the court quoted one particular bit of evidence presented by the state of California.

Which you mentioned specifically, which is pursuant to California law, California election officials must ensure that mail ballots are sent to all active registered voters in the state. Therefore, we anticipate that county election officials will mail more than 23 million ballots to vote. What the Postal Service was requiring California to do was to submit designs for the envelopes going out and the envelopes coming back, to wait for Postal Service approval, then to print those envelopes, get them out, get all the mail back, and tally the votes before Election Day, which is November 3rd of this year.

The irreparable harm is that California was not going to be able to send mail-in ballots to its voters. They weren’t going to be able to do it in time. That is something that money from the state standpoint, as well as the standpoint of the individual voters, money does not compensate for. Now, I focused on California just because of the magnitude of the number of ballots that would be sent out.

As you pointed out, there are other states and the District of Columbia where, if you’re a registered voter under state law, you get a mail-in ballot which you can then fill out and send by mail rather than having to show up at a polling place and vote in person. There was that issue. Another issue, and I think the language I quoted is a good segue to it from the irreparable harm standpoint, is that they pointed out that California election officials must ensure that the ballots are sent to all active registered voters, and county election officials will mail the ballots.

In some states, this is handled not on a state level, but on a local level. For instance, in Texas, the information on my polling place comes to me from the Harris County clerk. What you would then have is that you could potentially have thousands of envelope designs going to the Postal Service, which it then has to approve before the ballots can be sent out. Imagine the magnitude of doing that if you were a small rural county somewhere in West Texas or Alaska or Montana to have to comply with this and to get the approval and then print the ballots, if you’re a small local county which does not have a massive amount of revenue, and do all of this.

The Postal Service or the government was saying, “Look, there’s no irreparable harm here. We’ll be able to approve the envelopes two days after receiving them.” As the district court pointed out, while the government is saying that in its legal filings, the evidence that was presented shows, as the court put it, the only evidence before the court as to the turnaround shows that regardless of the Postal Service’s aspiration, the approval time will be measured in weeks or months, not days, just based on historical data. That was a major irreparable harm was just the inability of so many of these entities to do this in time for the existing election.

Essentially you’re putting states in a position where it would be violating its own state laws in order to comply with a rule for mail set by the Postal Service.

Another thing that the states pointed out was that many states have laws that prohibit the disclosure of voter information. It’s like your Social Security number. This stuff is not supposed to be made public, and it’s not supposed to be sent to anybody else by the state or by the county officials. What the federal government was saying is you’ve got to provide it to the Postal Service. The problem there is another irreparable harm because essentially you’re putting states, including a state like Texas, in a position where it would be violating its own state laws in order to comply with not a federal law, but a rule for mail set by the Postal Service.

Richard, one of the things that I think is really important to point out here is, number one, there has been a constant effort by the administration, the current administration, to try to get the list of voters. There have been a multiplicity of cases that have stopped that from happening. The only time that there were really lists that had any information was when Dodge was in effect. What I’m saying is we’re a huge nation.

We’re a huge country, and they’re going to expect, from August in 2 or 3 weeks, to be able to meet all these rules. The other thing that we haven’t mentioned is one that I thought was truly ridiculous. They were supposed to establish a portal where all these things would come through, and they never even thought there was no establishment of a portal.

Unrealistic Deadlines And Logistical Nightmares For Local Election Officials

At the time the district court issued the second opinion, and I think even at the time the Supreme Court said we’re not going to set aside the injunction, the portal still was not set up yet. Again, we’re talking about a time frame where some of the states were already required to start sending out their mail-in ballots, and there was no portal yet to enter the information. The other thing is, some states have let the Postal Service know we’re not going to violate state law. We’re not going to violate the rights of millions of registered voters. We’re not going to send you that information.

The end result of that would have been that none of the mail-in ballots for that state would have been delivered to voters. A lot of the focus, when we talk about it, if you want to look at, okay, who does it ultimately affect, the reality is it affects most of the voters. At the irreparable harm standpoint, you focus on who are the parties to the lawsuit, and the parties were not, it wasn’t you and I or John Smith or Jane Doe. It was the states and some private entities that were involved in helping to register voters and in getting out the vote.

From an irreparable harm standpoint, that was the big issue, is basically the states presented a magnitude of, a large amount of evidence showing that, “Look, we cannot meet this requirement. It’s already August 11th.” What would that be if 50 is? “There’s no way that in 84 days we can get all of this done and get the ballots back and count.” There were other things. For instance, there were some areas where the postal service was not even set up to scan barcodes, little things here and there that touch upon it, but we’ve really hit upon the major issues.

The third factor is, as I mentioned, the whole balancing of the equities. It’s who would get hurt the most, and quite simply, we’ve touched upon the ability of the states to comply with this rule. The district court pointed out that the result of the implementation of this rule less than 70 days before November of 2026 would have threatened, and we’re talking about the time, the date on which the court issued its ruling, not the date in which the rules were put into effect by the Postal Service. To be clear, because I mentioned 81 days earlier, and I was talking about the date the rule was announced, they said it would disenfranchise millions of United States citizens who vote by mail.

That was the balancing of the equities from the state side. This was the thing that really hit me the hardest, or on which both the Court of Appeals and the District Court really hammered, and that was that the other side, the federal government, had presented no evidence relating to fraudulent voting to support the rule. There was no evidence to show the harm to the federal government if the injunction were granted. The balancing of the equities was such that the scales were like this. I guess I should have my hands close enough that they’re on your screen, but like this, or maybe like that.

I cannot go low enough on your screen to show the lack of harm to the federal government. Again, this is based upon the evidence presented to the court. The third factor is the public interest. This is where we finally consider how this would affect those who are not parties to the lawsuit. Essentially, that factor really merges with the balancing of the equities because the effect on the public would be to combat the alleged prevalence of voter fraud.

You would have millions of voters who would not be able to vote despite the fact that they are registered voters and do want to vote in the election. The district court, looking at all four of these factors, essentially, I’m going to paraphrase it, said this is not even a close analysis. I’m granting the injunction. It said that the Postal Service could not implement and use these rules in the November 3rd, 2026 election that will be coming up by the time this airs, in less than a month.

There’s something else, because I think it would be helpful if you simply repeated the four items you covered in just one sentence that summarizes the reason that you think these courts made the decision to allow the injunction. Can you go back over them a little bit? It would be helpful.

Let me try to do it. It may take 2 or 3 sentences.

However many sentences you need. It needs to be summarized so people can hear what the issues were and the court’s flat said, “No, we’re going to maintain the injunction.”

The issues were that the states would succeed on the merits because the executive order controlling elections was unconstitutional. That there would be irreparable harm to the states if the injunction was not granted because they could not get the mail-in ballots to voters before the election. The hardship to the states would be worse than the hardship on the government of simply conducting this election the same way the government has handled mail-in ballots in elections prior to this executive order. The effect on the public would be severe because millions of registered voters would not be able to vote in the November 3rd, 2026 election. That’s the simple statement of what we’re talking about here.

Voter Access Vs. Political Strategy: Protecting The Right To Vote

Another thing that I think is. There’s an obsession by Trump to try to do something with mail-in ballots because he knows that there are a lot of people who vote by mail-in ballots. I think about all the military that serves our nation. They vote by mail-in ballots. There’s such a fear on his part about how bad it’s going to be that he’s going to lose in the midterms that he’s just doing anything to try to control it.

One of the things that I have said is, thank God the courts are doing what they need to do to review the issues in cases and then to take a stand. In this one, and we can go back to any more, but there was a really interesting article that was published on September 14th. It’s called the Supreme Court rejecting Trump’s restrictions on voter mail. The other thing is that there was another article that was excellent, which was that two conservative judges would have allowed Trump’s mail-in ballots that would have been restricted.

There are a lot of other things that talk about how the states themselves felt about how grateful they were that the Supreme Court stood its ground and allowed the injunction. It’s interesting. The mail-in ballots are not very popular, but in North Carolina, the Attorney General said Voting is going to begin. You do not change the rules in the middle of an election. Now, that’s the other thing.

Not only do we not change the rules the Monday before Election Day, we do not change the rules 30 days before Election Day.

When it comes to an election law, there is something called the Purcell principle. It was language contained in an opinion. The opinion was the Purcell principle. It’s an Arizona election case. Essentially what the court has said, and it’s not a holding, but nonetheless, it is something that the court has announced in the past when it chooses not to get involved this close to an election. What the court has said is what you’re talking about, we’re not going to change the rules this close to an election.

If you want something like this to happen, you’ve got to come to us at a time frame far enough away from the election where there is an opportunity for this to take effect and where everyone will know what the process will be before the election. It’s something that I do not know that the current court has really fallen back on that much. I also do not know to what extent the language in the original opinion is really a holding that’s enforceable, meaning something that is a controlling law.

Nonetheless, it is a practical factor, which is that, look, not only do we not change the rules the Monday before Election Day, we do not change the rules 30 days before Election Day, because you’re still talking about a time frame where some people might not know about it in time to act and vote even though they want to.

There’s another thing, too, that I was pleased about. There was an article on election law officials breathing a sigh of relief following a court ruling on mail ballots. This was a bipartisan effort. There was a bipartisan coalition of election officials, voter rights groups, and nonpartisan watchdogs that cheered this, and that it was blocked because they did not support what was being suggested. We shall see in the future what happens with this.

One of the things I think is that the right to vote as a citizen of the United States means that I am a citizen of the United States. To be unable to do that would be very distressing. I am also interested to see what the electorate will do in November. It’s because the voice that we hear is going to be very fascinating, and I do not know how dramatic it’s going to be or whatever, but I think there’s going to be a voice from the nation, the citizens of the United States, because 71% of them do not approve of the war with Iran. There’s all of it.

I would add, and I would interject, because again, as I told you, it was a telling thing for me. The court said there’s no evidence of irreparable harm. The stated concern was that we’ve got to prevent voter fraud. I know from anecdotal evidence from things I’ve read in the news that the incidence of voter fraud is very minimal. I recall reading something about eight cases brought for voter fraud in the state of Texas, despite the fact that there are, however, many millions of registered voters in the state and people who vote.

The Myth Of Widespread Voter Fraud: Fact-Checking The Claims

I also recall reading that the largest single instance of voter fraud that has been prosecuted or discovered involved a Republican election official in North Carolina who apparently was filling in ballots that he had received where someone had not voted for any candidate for a particular office. He was going ahead and casting votes for the Republican candidate, despite those parts of the ballots being blamed.

Even there, we’re talking about maybe 100 or 200 ballots, not billions of ballots like we keep hearing. We’re talking about a magnitude of billions of dollars potentially being spent had this rule gone into effect to prevent, who knows, maybe 100 people from committing voter fraud? It sometimes troubles me that the efforts we want to go to for something, while people talk about it a lot or we hear about it a lot, does not appear, based upon what I’m reading, to be that big of an issue.

I’ve read the same thing, and I’ve read a bunch of them. You talk about eight cases, but the thing of it is, it has been something that Trump has held on to try to create drama and try to, really maximize his effect, on the elections and thinking he’ll do it. I read an article yesterday that I thought was very interesting. I’ll cover it at some point, not with the legal aspects of it, but it was talking about the fact that there are a number of Republicans and a number of the administration that have tried multiple times to get Trump off this voter fraud because they know it is not legitimate. He just refuses to stop. He’s getting advice not to do this because it’s just not there.

I’m glad you explained all this because I think it’s very important for us to realize that mail-in ballots are many times the best way a person can vote. I’ll give an example of myself. I remember a time when I could not get out of bed because I had fallen and broken a bunch of ribs, and I wanted to vote. Thank God I could do a mail-in ballot. There are men and women who cannot afford to miss a job to vote. If states restrict or cities and counties restrict the time frame they can vote, then it makes it very difficult. I want American citizens to be able to express their views. I may not always agree with them, but I want them to express their view so that we know what the citizens of the United States really believe needs to be done.

While I glossed over it on that whole likelihood of success argument, the position the government was taking is that this does not have to do with the time, place, and manner of elections. All this has to do with is the Postal Service setting requirements for the delivery of US. Mail. That is something that the statute allows the Postal Service to do. The district court did not buy that. The reason I mention it is that what the Supreme Court did is typically not get a full opinion or much of an opinion. When you have an order like this that’s issued.

Essentially, the Supreme Court will issue a 1 or 2 sentence order, something along the effects of the government has requested a stay of the injunction granted by the District Court of Massachusetts that stay is, the request for a stay is denied. Here, Justice Alito did write a dissent from the Supreme Court’s order, where He argues that the stay should have been granted. The reason I mentioned that this is just a rule regarding the mail is Alito says that, that’s really all this is that what we’re dealing here is that we’re dealing with the regulation of envelopes, which is within the power of the Postal Service to govern collecting, handling, transporting, delivering, forwarding, and returning mail.

Providing information on registered voters has nothing to do with the transmission of mail.

For that position, Alito cites a Supreme Court case. Alito says the same is true of the requirement to pass along information about each recipient of ballot mail. Now that is ultimately where Alito is disingenuous in his dissenting opinion. Providing information on registered voters has nothing to do with the transmission of mail. It has nothing to do with envelopes or whether the postal service should deliver a box that has something leaking from it. That has to do with the privacy of people’s information.

The telling thing about that sentence that Alito simply throws out is that he does not provide any support for it. He does not cite any case. He does not cite any federal regulation. He does not refer to any evidence submitted to the district court to support that. It’s just a conclusory statement that, to me, really does not hold much weight. With the appellate courts, you had asked about how this goes. At the trial court. The states were the plaintiffs.

Analyzing Justice Alito’s Dissent And The Supreme Court’s Stance

On appeal, the states were the appellees, meaning they’re on the other side because the government wanted the appellate courts to prevent the injunction from going into effect. In order for the appellate court to do that, in order for it to say, “We’re not going to allow the district court’s injunction to go into effect,” there are requirements the US government has to meet. One of those was that it was likely to succeed on the merits, which is what the language I just gave you from Alito’s dissent concerns.

The other one is for the federal government to be able to show that it would suffer irreparable harm absent a stay. In that regard, similarly, what Alito does is cite an opinion or the order issued by the Supreme Court when there was no rule in effect. He says the district court’s errors deal a serious setback to the executive’s goals while this litigation unfolds. Again, he does not provide any evidence to show what the irreparable harm would be to the executive branch of the US government. He is just making conclusory statements.

The problem with that is you have to clear all four of these hurdles. The third is that there would be no substantial injury to other parties interested in the proceeding. The fourth is, again, where does the public interest lie? With that, he acknowledges that voters would be disenfranchised, but then he says in a rather dismissive fashion, I take that problem very seriously, but it is not enough to convince me to deny the application. Which I find to be ridiculous, that the disenfranchisement of millions of voters is not enough for him.

Missouri still does not know what its congressional districts will be in 41 days, when the election occurs.

I find the dissent problematic because these are Supreme Court justices. I once got criticized by a particular judge on the Fifth Circuit Court of Appeals during oral arguments because I was making argumentative statements, and she said, “I needed to cite a case for those statements.” Despite the fact that I was just saying, “This is where I think the court should go. Here we’ve got a Supreme Court justice doing it on multiple fronts, and I wonder if that same judge would chastise Alito for doing this, were he before her. It’s troubling. We hadn’t discussed this beforehand, but if you would allow me five minutes, I would like to touch on another election case.

I would like you to do that because I think this is too important an item. Please go forth with the other case because I think you just gave clarity that I found offensive about the way a leader wrote his dissent. I thought it was shallow. I thought it was ineffective. I thought it was just, “Buddy, Trump, I’m going to say something on your behalf, but I do not have anything to back it up with.” Yes, I would love to hear you do a case.

State Sovereignty Under Fire: The Missouri Congressional District Controversy

To quote the 40-year-old Wendy’s ad in the line of Clara Peller, where’s the beef? I do not see it. Now, the one other case, and I’ll be brief on this because we’re running short of time, is there is a case out of Missouri. Missouri was one of the many states that attempted to redraw its congressional districts over the past year. Missouri has a state law, or it’s actually a constitutional provision, that when the legislature passes a law in the state of Missouri, or passes a bill, and it’s signed into law, if you get enough signatures on a referendum, that law then has to go on the ballot.

The registered voters of the state of Missouri will decide whether the law can go into effect. When the congressional districts were redrawn in Missouri, there were more than enough signatures to put that law on the ballot. What happened there was that the Missouri Secretary of State, a Republican, said, “This constitutional provision does not apply to the drawing of electoral districts.” The Missouri Supreme Court, in interpreting Missouri’s own constitution, said something to the effect of, the exception the Secretary of State has given does not exist in the Constitution, period, full stop.

As a result, this law is not in effect. Under the provisions of the Missouri state constitution, the bill has to be approved by the voters of Missouri before it can be a law, so we’re going to have to use the congressional districts that were drawn by the state in 2022. You would think that ends everything in Missouri because the Missouri Supreme Court has decided, I think the opinion was unanimous, that this is how the state law reads. Not so fast, my friends. You had someone file suit in a federal court in Missouri saying, “I thought I was going to be voting in the first district. Now I’m going to be voting in the third district. This is a violation of my due process rights.”

A federal judge then got involved and said, “Wait a second, this is a constitutional violation. We’re granting an injunction.” You have to use the districts that were set by the state law, which, mind you, is not a law yet. Essentially, a federal judge said, “You’ve got to use a law that’s not really a law. It’s more of a borrow from the Pirates of the Caribbean.” They’re more guidelines. They’re not rules. Now, the US Supreme Court got involved in this, and what it said, again, in a very short order, was that, “The district court’s injunction is set aside.” I’m paraphrasing it, but the district court’s order is set aside.

Now, the interesting thing is the case then went from the Supreme Court back to the intermediate appellate court over Missouri. That is the Eighth Circuit Court of Appeals. The Federal Court of Appeals. The Federal Court of Appeals, and again, I’m going to paraphrase it, essentially what they said was, “You set aside the order from the district court, but we’re going to issue an order that requires the state of Missouri to use the new electoral districts that were drawn,” which, mind you, are not a law under Missouri law, by the way.

That is, as we’re talking now, I’m sure the Supreme Court will have answered the question by the time this airs, but right now, that case is back in front of the US Supreme Court because the Eighth Circuit Court of Appeals decided it would try to run in the Supreme Court’s order by issuing its own order dictating which congressional districts are to be used. Here we’re. You and I are doing this on September 23rd. We’re, what is that, 38, 40, 41 days from the election, and Missouri still does not know what its congressional districts will be in 41 days, when the election occurs.

It troubles me that, in this circumstance, as Missouri, you could have a state court that would interpret its own law. Rather than respecting that as being the final word on Missouri law, you would have federal courts trying to do an end run to allow different congressional districts to be used where the state’s own Supreme Court has said, “No, these aren’t permitted to be used under Missouri law.” That bugs me probably more so than Alito’s dissent.

When a Supreme Court of a state makes a decision, you would think that on its laws, the circuit courts and the Supreme Court would recognize the authority of that state court.

You’re not the only ones bugged by it because I think that when a Supreme Court of a state makes a decision, you would think that, on its laws, then the circuit courts and the Supreme Court would recognize the authority of a state court that happens to live in that state, happens to know what’s happening in that state, and happens to know their constitution to the best they can. I support you having put this case out here as well, because I wondered what we were going to do about Missouri, because it is so terribly confusing. I thank you for naming that.

Sure thing. Now, despite being a lawyer, I’m all talked out on elections.

Listen, we’ve got to plan something else to talk about, and I’m sure we’ve got plenty of other things because elections are tiresome and whatever. I want to say to you, and I want you to hear my comment to you, that I have a better understanding of these cases due to your ability to clearly explain them, go through the language you need to use, explain the language, and my audience has a better understanding. I want to thank you, Richard. Go rest because I do not want to talk about elections much either. Right now, even though I’m block walking and doing a number of other things. Thank you so much. I’m glad to see you back. As always, I’m very appreciative.

Thank you.

Important Links

About Richard Wilson

KERR WILSON, P.C.

16676 Northchase Drive, Suite 450

Houston, Texas 77060

(281) 260-6304

EDUCATION

University of Texas at Austin, J.D., 1995

Louisiana State University, B.S., Finance, cum laude, 1992

BAR ADMISSIONS

State Bar of Texas

S. District Courts for the Eastern, Northern, and Southern Districts of Texas
S. Court of Appeals for the Fifth Circuit

PROFESSIONAL EXPERIENCE

Kerr Wilson Houston, Texas

Shareholder 2008- present

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Advisor for small and mid-sized businesses in the energy industry
Responsible for all facets of managing and operating a law office

McFall, Breitbeil & Shults Houston, Texas

Associate & Shareholder 2001- 2008

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Established the budget, managed litigation, identified corporate objectives, retained local counsel and experts, and tried complex cases that were pending in multiple jurisdictions

Chamberlain, Hrdlicka, White, Williams & Martin Houston, Texas

Associate 1997-2001

Hirsch, Robinson, Sheiness & Glover Houston, Texas

Associate 1995-1997

ACHIEVEMENTS

First chair jury trials in professional liability, breach of contract, insurance, trade secret, and personal injury cases
Appeals to the Fifth Circuit and Texas appellate courts
AV Rated by Martindale-Hubbell

PUBLISHED CASES

Webb v. Crawley, 590 S.W.3d 570 (Tex. App.—Beaumont 2019, no pet.)
O’Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017)
Stallworth v. Ayers, 510 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.—Eastland 2014, pet. denied)
Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 390 (5th Cir. 2014)
Allstate Tex. Lloyd’s v. McKinney, 964 F. Supp. 2d 678 (S.D. Tex. 2013)
Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
Willbros RPI, Inc. v. Continental Cas. Co., 601 F.3d 306 (5th Cir. 2010)
Duerr v. Brown, 262 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)
King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002)

PUBLICATIONS

Author, From Advocate to Party – Defenses for Lawyers Who Find Themselves in Litigation, 61 LAW REVIEW OF SOUTH TEXAS COLLEGE OF LAW 43 (2020)
Author, Policy Benefits- Are They Recoverable Under Extra-Contractual Theories When A Covered Claim is Denied?, JOURNAL OF TEXAS INSURANCE LAW, Volume 12, Issue 5, at 17

(cited by the Texas Supreme Court in USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 487 (Tex. 2018))

Author, The Additional Insured, an update of recent developments in Texas focusing on additional insured clauses and indemnity agreements
Co-author, Recent Legislation Concerning Attorneys

Texas Lawyers’ Insurance Exchange Newsletter

Panelist, Occurrence-Innocent Insured Pays Price for Guilty Third Party?

Presented to the Insurance Practice Section of the State Bar of Texas

REPRESENTATIVE EXPERIENCE

Successfully defended an attorney in a two-week trial in federal court against fraud claims based on representations made during negotiations for the purchase of a multi-million-dollar interest in an oilfield services company.
Defended one of the world’s largest insurance brokers in a malpractice and breach of fiduciary duty case. This was one of the first cases to go to trial concerning broker duties related to the failure of Reliance. I obtained a take nothing judgment for the broker.
Defended an oilfield services company in a catastrophic injury case where the client destroyed the key piece of evidence after the accident. After a week-long trial, the jury returned a finding of minimal liability and damages against the client.
After a month long trial, obtained a take nothing judgment for a manufacturing company in a misappropriation of trade secrets case. Represented that client and several co-defendants in the appeal, and successfully reversed an unfavorable verdict against the co-defendants.
Successfully defended a liability insurer in a bad faith and Texas Insurance Code case concerning damages to a major pipeline. Obtained a summary judgment in the client’s favor, and persuaded the Fifth Circuit that the client’s coverage position was correct on appeal.
Represented an employer in an insurance coverage dispute all the way to the Texas Supreme Court, and persuaded the Texas Supreme Court to recognize coverage for the employer when an employee has committed an intentional act.
After being hired by a probate judge to defend him, successfully obtained the dismissal of a suit against him and on appeal defined the judicial immunity available to courts in Texas.
Obtained summary judgment for a law firm sued for malpractice over its handling of Sulzer implant cases. The summary judgment was affirmed on appeal.