Trump Loses on Mail Ballots & Kennedy Center

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1:02homes, valuables, and more. Because planning for the future isn't only about knowing what's next, it's about making sure you're ready for what you can't predict. Let Cincinnati Insurance make your bad day better. Find an independent agent at cianfian.com. So as a pizza genius, I know pizza shop orders come from, well, everywhere. With genius by global payments, online orders actually syncs straight into your kitchen. It's as simple as pie. And with digital menu boards, your specials, your prices, your brand, always front and center. It's one system, ready for game night crowds. Any night of the week, really? Bigly reliability for any business. That's genius. This is Bloomberg Law with June Grasso from Bloomberg Radio. The Supreme Court has refused to allow the Postal Service to enforce new restrictions on mail-in

2:04ballots for the midterms. The Justice's decision on Monday night came after North Carolina and Alabama already began mailing thousands of ballots to voters. And after election officials warned that late-breaking changes would inject chaos into the elections. The court held that the Trump administration was unlikely to win the merits of its challenge to a lower court's injunction, and that officials failed to show they had a stronger case for immediately reviving the rules ahead of the midterms. It was a brief unsigned order, with Justice Brett, Kavanaugh writing a concurrence, and Justice's Samuel Alito and Clarence Thomas dissenting. President Donald Trump denounced the decision in a social media post, calling it a horrible, highly political ruling, but praising Alito and Thomas as legends. My guest is an expert in election law, Richard Brafald, a professor at Columbia Law School.

3:05So this is an unsigned three-sentence order. Tell us what the Justice has decided. The majority rejected the government's effort to lift the stay that the district court in Massachusetts had imposed on the Postal Services implementing its new mail ballot regulation. As you know, driven by the President, the Postal Services proposed to adopt new and very restrictive rules, a very burdensome rules on the use of mail and ballots that were supposed to take effect for this current midterm election, various groups of states and voting groups, including the League of Women Boaters, tried to block that process. Srinquit ultimately said they came too early. The Postal Services should be allowed to finish its rulemaking. As soon as they issued the rule, the same groups went back to court, the district court in Massachusetts issued a first-day temporary restraining order than a preliminary injunction, which was sustained by the first circuit,

4:06the appeals court that oversees Massachusetts. Partly on the theory that they're really on the merits, the law could not be sustained that it was inconsistent. It was really beyond the authority of the Postal Service to do anything like this. And also on the equities, on the fairness that it's so close to the election that it would be highly unlikely the Postal Service could effectively and efficiently implement this rule in less than 60 days before the election. And as a result, it results in the denial of the vote of potentially millions of people. And so that's where things stood the administration brought this matter to the Supreme Court last week. I think right after or at a right holiday, the court's order basically very briefly said deny the administration's effort to undo this day in a brief very short opinion, but in a brief phrase of the court's opinion suggesting that they thought that even on the merits, the government would lose. They didn't give a reason, they didn't give a justification, they didn't say whether it was a statutory problem

5:10or an administrative procedure problem or a constitutional problem, all of which had been raised in the litigation. Or given that it had been raised that the Postal Service didn't go through proper process, that it was beyond the scope of its authority under the statutes, and then as a matter of federalism and of the right to vote, this would be on constitutional. Basically, three different levels of arguments had been raised. The court just said that on the merits, the case against it was strong, but then in any event, as a matter of equity, given the closeness to the election, they would not lift the stay. There was a brief concurring opinion by Justice Kavanaugh saying he thought there was a plausible case on the merits for the Postal Service rule, but that he agreed that it would be in his language arbitrary and capricious to allow that rule to go forward, given that it's so close to the election. I was surprised that there was any dissent, the states said that they couldn't get this done in time, and ballots have already gone out in two states. It just shows you how in the tank for the Trump administration, Alito and Thomas R. I agree with you, there was

6:13both on the merits and Kavanaugh's focus on the equities. It would be impossible. Alito had a kind of a snarking line that the reason it would be so hard is if the states had fought this for so long that it had delayed the Postal Service ability to get the rule out. But as some of the briefing noted on this matter, the Postal Service still has not opened the portal that it would be necessary for the states to send their ballots or their ballot envelopes to, which the Postal Service said we would have to review what you're doing before we can handle them. They hadn't even opened the portal that would allow them to do that reviewing. So as of, I mean, now there's no rush, but as of close of business yesterday, at that point, we were within what seven weeks of the election, it would have been impossible. And indeed, some of the states that already speak on to send their ballots out. And if the Supreme Court had decided this issue on the merits, when it first came to them, instead of taking the off ramp of a procedural issue, it wouldn't be this late. I mean,

7:15Alito also laid the Supreme Court for taking so long on the other, earlier case. I mean, I think he was digging in his colleagues for taking until late August to dismissing the challenge by the states of Postal Service. And so he basically says, the court was irresponsible for this and the states were responsible. And it was a kind of that still doesn't get around the fact that it would have been impossible for this for the state to comply. And millions of voters would have been unable to vote by now. Millions of registered lawful citizen voters would have been unable to vote. So it's really quite a kind of a shocking opinion. And this isn't the end. This is going back to a lower court. I think it's the end for 2026. Basically, I think there's no way that the new Postal regulations can be in effect for 2026. It is not the end of a proposal. My guess is there will need to be a full-fledged trial now. I mean, all of these, all of the action until now has been on an emergency basis. I think that there will need to have be a full-fledged trial going

8:16forward in the assumption that now the Postal Service and the states would have until basically until 2028. Although, I mean, it's not just for federal elections, I think. So there presumably there'll be elections in 2026. But it'll have some time. And then presumably, this may be back in the Supreme Court on the merits. Although the court signaled it was very brief, but they seemed to signal on the merits, although without saying what about the merits, they found troublesome. They seemed to signal on the merits that they were not likely to support this, but you know, no. You know, there's at least three justice to this signal. They are willing to support some kind of Postal Service regulation. And we don't know what of the six who did not write how many of them would be willing to go forward if there was more time. We just don't know that. You know, the signaling support for the Postal Service, how did they get around the constitutional provisions about elections and allowing the Postal Service to impose these rules? I mean, there are a bunch of questions. And, you know, one question is, are these election rules,

9:18are Postal rules? I mean, I think it's these are clearly going to impact how an election is run, but one argument might be their Postal Service rules. A second question that was relevant to this, and Alito spent some time on, is, you know, what's the procedural vehicle for challenging this? Because the Postal Service is for the most part is not under the administrative procedure rack. The Postal Reorganization Law provided special procedures for challenging new Postal rules and going through a Postal Regulatory Commission, which was sidesteped in all of this because Judge Delani in Massachusetts basically said this was so beyond the scope of what the Postal Service is like to do. There was ultravirus, totally outside their authority. And the courts could hear that. Alito basically said, we hardly ever do that. And that was a good part of his argument was that this was kind of procedurally irregular. That question may get more attention later. But I think all of this has gone very quickly. And I do think now we'll have a slower more deliberate rule. I mean, there's, you know, I think there's a serious question before

10:19we get to the constitutional question of the federal government of the St.C.s, whether this falls within the Congress's grant of authority. I mean, Congress does have the power under the elections clause of the Constitution to change the rules, to write the rules for how federal elections are run, not state elections, but how federal elections are run. And Congress could authorize something like this. And since the sayback, which didn't pass, would have done something like that. That would have been the way to do this. The question is, has Congress given the Postal Service the authority to do this? And that just strikes me if there was ever used for the major questions doctrine. That's this. But in any event, the legislation that the Postal Service has been given to write rules for mail, for Carrie Meal, I think that there's just no basis in their current authority. So I think, you know, if you look at it, I think, before we even get to the constitutional question, I think the statutory question is really real and would happen to be addressed by the Supreme Court, which is maybe they were hinting at that. Maybe they were hinting

11:19at problems with the process by which the Postal Service did this. It was very cryptic, but it did use the word, you know, merits, as well as the timing issue in terms of rejecting the Postal Service Rule. So many times on the shadowdocket, you get brief opinions or no opinions. But here, why do you think they didn't give a more fulsome explanation? Could there be justices besides the three that we know about who have problems with the challenger's position here? It's certainly possible. It's certainly possible. And also, you know, as a matter of kind of a small sea judicial conservatism, there are hard issues there, and I think a full-fledged opinion would have taken longer. And I think it was important to resolve this issue as quickly as possible. Once we got past Labor Day, it seemed just incredibly unlikely that they will allow this rule to go forward this year. Just the timing issues were insuperable. And I think even you see that in Cabinlo's opinion. But, you know, I think many of us think that the case against Postal Service

12:21intervention here is incredibly strong. You know, there are arguments on the other side that the government was raising. And we may ultimately get a full-fledged opinion on this in another year. But, you know, there's very little case law on the powers of the Postal Service. And it's rule-making authority. It's also possible, you know, even the Democrats do well in the elections. When I can imagine Congress trying to adopt legislation barring this rule, although it's unlikely to get past the precedent. But, yeah, I think the arguments that the Postal Service just lacks statutory authority for this are just really powerful, and probably need to be more fully addressed than in a quick opinion. I think the court was right to try and get this out and dawn as fast as possible. And now that this is over, we wait for the next election controversy. Thanks so much, Rich. That's Professor Richard Brafalt of Columbia Law School. Coming up next on the Bloomberg Law Show. President Trump threatens to stop efforts to repair the Kennedy Center unless his name is added to the building. I'm June Grasso and you're

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16:50Today, Tis and Cis apply. President Trump's fight to get his name on the Kennedy Center continued today in court and at a meeting of the Center's Board of Directors. This afternoon, a federal judge ruled for a second time that Trump's name cannot be added to the building. Rebuking the Board of Directors for trying to circumvent an earlier order. Federal Judge Christopher Cooper said simply put, the Board cannot install memorials for President Trump or anyone or anything else at the Kennedy Center without Congress's blessing. After the judge's decision, the Board, which was handpicked by Trump, voted to close the Kennedy Center for renovations. But Trump posted that the Justice Department will appeal the decision and, quote, if the ruling is a negative one, which it should not be

17:52and is not overturned by the U.S. Supreme Court, the reconstruction and the renovation of the Kennedy Center will not take place. Joining me is Bloomberg Law reporter Suzanne Monyak, who has been covering the Kennedy Center controversy since the beginning. Start with what is the state of play right now. Tell us what the latest is on the Kennedy Center. The latest is that the Kennedy Center's Board, his members have been handpicked by President Donald Trump, are not going to be allowed to put his name back on the exterior of the building. This is the second attempt that they've made to do this. The first was to rename the Center for Him. This is now a stated effort to acknowledge Trump's contributions to the performing arts venue. But again, they'd wanted to acknowledge it in lettering on the outside of the building and a judge today has said no, they cannot do that. The Board had suggested various phrases that could be used to show Trump's contribution to the Kennedy Center. And the judge just said that no way, there's no way that he's going to be allowed to

18:56add his name to the building. That's right. Judge Casey Cooper here in DC made clear that the federal law that created the Kennedy Center as a memorial to assassinated President John F. Kennedy, it does not allow the building to have any other public memorials for other people. So not only can it not be fully renamed, there can't be any other memorial for a different person as part of the institution. They also wanted to rename the Plaza there for Trump. That's right, there were a couple of different pieces to the attempted renaming on this latest attempt. They had wanted to say that essentially I introduced some kind of recognition of Trump's contributions to renovations in the building. They had also wanted to add a second line once they reached a $100 million fundraising goal indicating that it was endowed by the Trump Kennedy Fund. And thirdly, they wanted to rename the grounds of the Kennedy Center facility, the Donald J. Trump Plaza. And so what happened here today is that the DC judge blocked one in three of those. Number two, acknowledging a fund

20:02raising goal in the future from the endowment. He's not ruled on yet, but only because he said that that she was premature right now given that $0 tap and raised according to the government's representations in court. So that maybe it decided at a later date I wouldn't expect the judge to necessarily allow it. He already indicated that he saw as legally dubious in today's decision. What does the board say the state of the Kennedy Center is? The board has said that the Kennedy Center is currently headed toward certain fiscal collapse, quote, in materials circulated ahead of a meeting that happened today as well after today's court decision. And the facility has not been having performances ahead of an anticipated closure of the Center for renovations. And that's because the Kennedy Center's board has now been voting kind of separate but related to the renaming attempts. The board is also trying to close the facility for two years for what they're saying or needed repairs for the safety of the facility. Judge Cooper here in DC has previously blocked the board from closing the facility after finding that a vote earlier this year that the board just

21:06didn't rely on enough information that they relied on a one-sided presentation. And so he blocked the outcome of that vote trying to close the facility, but the board voted again in August to do so and again today. So the next steps on that aspect of the case are that the government's going to be moving to undo that part of the court's earlier ruling blocking the closure so they can close it again. So, you know, we'll see further proceedings on that issue too. And how many times has the judge said they couldn't close it? In May, the judge said as she'd a temporary order saying that they can't close it, but he did very explicitly leave room in that decision for the board to come back to consider maybe a more fulsome presentation of information and should they decide to close it again. They could come back to court. And so that's where we're at now. They have decided to close it again based on what they will, I'm sure, represent is a more fulsome amount of information. We haven't heard from the plaintiff yet. That's representative Joyce Badi, a Democratic Congresswoman from Ohio, who's an ex-sufficio trustee of the Kennedy Center. But I wouldn't be surprised if we were to hear

22:06that the challengers are again arguing that they see this as pretextual again. That was indicated at today's hearing. Before today, there was a threat that if they didn't allow his name to be on the building that he wouldn't help with fundraising efforts. There's been a few threats of those kind regarding the impact of not allowing Trump to put his name on the building. Essentially, the position of the Kennedy Center board has been that it's necessary to, you know, Trump's prestige and his prominence is required for the building to be able to fundraise and without his help, they'll never be able to avoid financial insolvency. Latest as in court, we saw a warning that perhaps the trust that the Kennedy Center could be headed toward bankruptcy and that, you know, having Trump's name would be, you know, enough to save it because Trump would be unlikely to do so if he were not appropriately recognized. That's actually came up at today's court hearing the judge asked the Justice Department lawyer point blank, can a, you know, public charitable trust, like the Kennedy Center actually declared bankruptcy and the government lawyer replied that he was

23:10not prepared to answer that question. So unclear if that is actually going to be happening, but certainly there is concern raised by the Kennedy Center board about the institution's finances and, of course, as we discussed, they haven't been holding performances for a long time. And so those concerns, you know, may not be unfounded. I mean, did the judge bring up the fact that the reason the Kennedy Center is in this situation is because Trump took it over and suddenly artists didn't want to appear there and lots of people didn't want to go there. That's certainly the challenger's position that this is a self-inflicted injury and that, you know, they've argued that the Kennedy Center's board, which is led by President Donald Trump as the chair, that they have been the ones to be driving this institution into the ground. The board sees it differently. The judge himself isn't one to show too many of his cards at these hearings. So we've yet to hear from the judge explicitly on that one. So when they say they want to close the Kennedy Center, is it for renovations or just to sit there? Well, no, they have said that they want to close it for renovations. They've made the case that

24:10they believe that closing it is necessary for full renovations to be done safely. That's sort of what's at dispute here on the closure vote back earlier this year. The judge had found when they voted at the beginning of the year to close it for renovations that they just really hadn't considered other options. Like say partially closing it during repairs, you know, maybe you do repairs on part of the building and keep the other half open or, you know, what if we only close it for a shorter period of time for certain repairs, you know, just other options that one could do outside of a full scale to your closure. So, you know, in theory, they are supposed to have considered those other options. Now for this, for this latest vote and believe that they said they had, they've brought on a third party consulting group and submitted some reports on that. The other side here are lawyers for representative Bady have disputed some of that evidence and they're really pushing to see more discovery in this case because they want to see, you know, just like more information on what the board is relying on to make these representations. And if Trump is not going to contribute in any way, where would the money come from for the renovations?

25:12Well, Congress has already appropriated about $250 million for repairs for the Kennedy Center. It's really undisputed that some repairs are necessary for this building. It's an old building. It's been around a while. We've seen the executive directors testifying court as to some of the problems, water damage, etc. So, I think that element of things isn't necessarily undisputed. And the judge himself has made a point in multiple hearings to note, hey, I'm not blocking you from making repairs. I'm just blocking you from closing the facility based on the vote that you did at the beginning of the year. So, I think that's an important distinction as well. And is the judge going to oversee any renovations so that you don't end up with what happened at the East Wing? You know, tearing things down before anyone could even object. I think that'll be remain to be seen how that process is going to work. I sense this judge has just not want to be a construction manager in order to see if that's the court's role here. But certainly there's been interest in the judge has been interested in knowing the scope of renovations. So, there's been testimony on that. I'm sure that'll come up in discovery as well.

26:14And I think the plaintiffs would, you know, we could expect them to return to court. Should they believe the renovations are exceeding the scope that was initially represented? And Suzanne, what's the status of the challenges to some of Trump's other projects in DC? There have been a number of legal challenges to other efforts by Trump to change parts of DC and its historic landmarks. We've seen a proposal to put up a triumphal arch that, you know, have, may have worked starting eminently. And then we've also seen proposals to paint the exterior of a Eisenhower Executive Office building, which I mean, in 19th century building located near the White House. In that one, a federal judge has allowed the administration to do some testing of paint on the granite exterior. But that litigation is still ongoing. There's a lawsuit filed by historic preservationists in the Eisenhower building case. And just to mention that the DC Court of Appeals hasn't ruled yet on whether Trump's name can be restored to the Kennedy Center.

27:17And in his post today, Trump said that, quote, the renovation and reconstruction, which is a very large and complex job, cannot begin until such time as the DC circuit rules on the board's approved name. He went on to say that if the ruling's a negative one, he's going to take it to the Supreme Court and then threaten to stop the renovation. If the courts don't give him the answer that he wants, which is to put his name on the building. Thanks so much, Suzanne. That's Bloomberg Law reporter Suzanne Monyeck. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple podcasts, Spotify and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grasau and you're listening to Bloomberg. If you listen to financial news, you know a lot of time is spent thinking about what's

28:23next. The next opportunity, the next investment, the next move. But sometimes what matters most is being ready for what you never saw coming. For more than 75 years, Cincinnati Insurance has worked with independent agents to help protect businesses, homes, valuables and more. Because planning for the future isn't only about knowing what's next. It's about making sure you're ready for what you can't predict. Let Cincinnati Insurance make your bad day better. Find an independent agent at CINFIN.com. Before you sign off, you tuned in for ways to help teams move faster, make sharper decisions, and turn scattered contexts into work they can use. ChatGPT for business can help. ChatGPT for business gives teams a shared workspace with admin controls, permissions and access to work and codex in ChatGPT. This means your business can move from question to answer and code to roll out quicker. Join over 10 million business and enterprise users worldwide already using

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