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.
Posted by Bulwark Takes, Checked
- Sources
- 5 support
- Said
- 1 time·
- Confidence
- 95%
Bulwark TakesSep 15, 2026
Kavanaugh's concurrence in the Supreme Court's September 14, 2026 order (No. 26A305) states that applying the mail-in ballot rule in the 2026 elections would be arbitrary and capricious under the APA because state and local election officials lack sufficient time to implement it; the primary opinion text and multiple outlets confirm this.
What was said
… Court said no. Brett Kavanaugh concurred with the majority opinion, but he offered a little bit more in terms of his thinking, and you can see it on the screen here. I'll read it for those who are listening. Kavanaugh writes, In my view, based on the briefing the Court has received at this interim stage, there's at least a fair prospect fair, I want to get back to that in a second the final rule falls within the Postal Service's statutory authority. But applying the rule in the 2026 elections would be arbitrary and capricious, in violation of the Administrative Procedure Act, because state and local election officials do not have sufficient time to reasonably implement the rule before the elections. For that reason, I concur in the denial of the application for a stay." So before we get to Thomas and Alito, let's talk about Kavanaugh here. He's saying, you know, if you do this again for 2028, I might be a yes vote. That's my read. …
Bulwark Takes · · from the transcriptPost →What we found
Supports. The primary Supreme Court concurrence text states that applying the rule in the 2026 elections 'would be arbitrary and capricious in violation of the Administrative Procedure Act because state and local election officials do not have sufficient time to reasonably implement the rule before the elections.'[1]
Supports. BBC, USA Today, The Hill, and CPR independently quote Kavanaugh's arbitrary-and-capricious and insufficient-time reasoning in the same September 14 decision.[2][3][4][5]
Context. Kavanaugh also said there was at least a fair prospect the final rule falls within the Postal Service's statutory authority, a point the claim omits but does not contradict.[1][2]
Sources
5 sources: 1 primary, 1 tier 1, 3 not rated
- 126A305 Postal Service v. California (09/14/2026)supremecourt.gov · primary source · cited for: supports, context
- 2Trump criticises Supreme Court after justices block mail-in ...bbc.com · tier 1 · cited for: supports, context
- 3Supreme Court keeps Trump's plan for mailed ballots on holdusatoday.com · not rated · cited for: supports
- 4Supreme Court won't restore Trump's mail-in voting plan for midtermsabc27.com · not rated · cited for: supports
- 5Supreme Court blocks Trump's mail ballot restrictionscpr.org · not rated · cited for: supports
Where this claim was made
Said in 1 published post
Related claims
- 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.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
- Justice Samuel Alito argued that the Postal Service has the authority to implement a regulation governing mail-in ballots.True
- Justice Ketanji Brown-Jackson dissented from the Supreme Court's decision regarding the Trump administration's mail-in voting executive order.True