Justice Kavanaugh justified the decision on the mail-in ballot rule by stating that it was arbitrary and capricious under the Administrative Procedures Act because it was too close to Election Day.
Posted by The Lawfare Podcast, Checked
- Sources
- 5 support2 context
- Said
- 1 time·
- Confidence
- 93%
The Lawfare PodcastOct 8, 2026
Kavanaugh's concurrence in the September 14, 2026 Supreme Court order says that applying the Postal Service mail-ballot rule in the 2026 elections would be arbitrary and capricious under the APA because state and local officials lack sufficient time to implement it before the election.
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What was said
… Um, we saw that, the at least the way Justice Kavanaugh justified the decision, the mail-in ballot rule took a similar rule and extended to federal agencies. He basically said, look, I think the mail-in ballot rule is valid, but we can't feasibly, this close to Election Day. Therefore, it's arbitrary and capricious under the Administrative Procedures Act. That's basically a per se rule for federal agencies. I think now we don't know if that's why the other justice ruled that way, but it's there's a compelling logic there. I think the other justice may have just thought it was illegal, but, but who knows? …
The Lawfare Podcast · · from the transcriptPost →What we found
Supports. Kavanaugh's concurrence in United States Postal Service v. California (No. 26A305) states that applying the rule in the 2026 elections would be arbitrary and capricious in violation of the APA because state and local election officials do not have sufficient time to implement it before the elections.[3]
Supports. AP, CNBC, The Hill, and the Minnesota AG all quote Kavanaugh's arbitrary-and-capricious reasoning on the timing problem, matching the claim's central assertion.[1][4][5][6]
Context. Kavanaugh also said there was 'at least a fair prospect' the final rule falls within the Postal Service's statutory authority, so he did not rule on the rule's underlying validity; the claim does not say otherwise.[3][7]
Context. The Court denied the government's stay application because the government was 'unlikely to succeed on the merits'; Kavanaugh concurred, and Alito and Thomas dissented.[2][3]
Sources
7 sources: 2 fact-checkers, 1 primary, 4 not rated
- 1Supreme Court rejects Trump mail ballot restrictions ahead ...apnews.com · fact-checker · cited for: supports
- 2In loss for Trump, US Supreme Court won't let Postal ...reuters.com · fact-checker · cited for: context
- 326A305 Postal Service v. California (09/14/2026)supremecourt.gov · primary source · cited for: supports, context
- 4Trump calls Supreme Court mail ballot ruling 'big loss for Republicans'cnbc.com · not rated · cited for: supports
- 5Supreme Court won't restore Trump's mail-in voting plan for midtermswcia.com · not rated · cited for: supports
- 6Supreme Court sides with Attorney General Ellison, blocks unlawful USPS voting ruleag.state.mn.us · not rated · cited for: supports
- 7US Supreme Court rejects DOJ bid to stay injunction blocking USPS mail-in ballot rulejurist.org · not rated · cited for: context
Where this claim was made
Said in 1 published post
Related claims
- Justice Brett Kavanaugh stated that applying the mail-in ballot rule in the 2026 elections would be arbitrary and capricious because election officials lack sufficient time to implement it.True
- Justice Brett Kavanaugh concurred with the majority opinion in the Supreme Court's denial of a stay on the mail-in ballot restriction.True
- Justice Kavanaugh joined the concurrence in the Supreme Court mail-in ballot order.True
- The Supreme Court granted a stay in a legal case regarding mail-in ballot restrictions.True
- The Supreme Court's ruling on mail-in voting restrictions was issued on the emergency shadow docket.True