Nonmailable Matter

What Trump Can Teach Us About Con Law

The episode uses a historical 1912 legal dispute over a piano contest as an analogy to examine modern attempts to restrict mail-in voting th

Key takeaways

• A 1912 contest by Armstrong Bird Music Company was legally contested because the postmaster refused to mail prizes deemed a 'lottery'.
• Trump's executive order directs the USPS to implement strict new rules for ballot design, including unique barcodes and specific logos.

Main topics

• Mail-in voting legality
• Trump Executive Order on USPS

Notable quotes

The results would have been classified as non-mailable matter under federal law.

Conclusion

The episode illustrates how administrative and procedural legal maneuv

Transcript preview

Speaker 1 (0:00) It is Thursday, September 17th at 2 p.m. as we're recording this. What are we going to be talking about today? Speaker 2 (0:07) All right. Well, in 1912, the residents of Oklahoma City, Oklahoma, received a widely distributed flyer in the mail from the Armstrong Bird Music Company. In the center of the flyer was a nine-box square, something that would be familiar to a Sudoku player today. Three of the boxes were filled in on a diagonal with the numbers 2, 5, and 8. Below the square were the instructions. Take the numbers from 1 to 9 inclusive and place them in the boxes so that when added together vertically, horizontally, and diagonally, the total will be 15. No number can be used more than one time. Winning entries could receive prizes. The first special award, according to the flyer, was a beautiful upright piano, value $350. Second place won you an upright piano worth $350 at the discounted price of $125. Third place earned you a $350 piano for $150. Fourth and fifth places earned you a violin and a guitar, and the next 100 winners would receive 100 additional awards. In fact, everyone who sent in a correct answer would receive an award. But how would the top prizes be awarded? The flyer said that prizes would be awarded to the neatest solution to the problem. The remaining prizes would be awarded in order of merit. Now, more than 6,000 entries were received. Most people wrote their answers on the flyer, but a number of entries decided that the neatest solution would also be the most creative one. Some turned in their answers on burnt wood, and some turned in pillows with answers stitched in embroidery. And the number of unusual answers actually exceeded 105 special awards that were announced in the flyer, but the judges awarded them anyway. Those special awards, they turned out to be a voucher for $117 to buy a new piano. But this contest ended up being the center of a legal dispute. And that's because when the Armstrong Bird Company tried to notify the contestants of their awards, Speaker 1 (2:24) the postmaster refused to deliver them. Speaker 2 (2:28) And that's because federal law in 1912, as it does now, prohibits the mailing of any item considered a lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance. Both sides in the lawsuit agreed that a lottery consisted of three elements, a prize, consideration, that's something you do or offer, and chance rather than skill. No one disputed that there was a prize. or that the contestants did something for a chance to win. But was chance an important part of that scheme? After all, what determined whether your embroidered pillow or burnt wood solution won the contest? In 1914, a federal court decided that while chance might have played some small role in whether you won a free piano, it wasn't enough to turn the contest into a lottery. The court also noted, with some annoyance, that the piano, advertised as being worth $350, only cost the company $130 wholesale, so the value of the voucher prize was dubious. Nevertheless, the winners could be notified by mail. Had the court decided otherwise, that this was a game of chance rather than skill, the postmaster would have been right to refuse to deliver the contest results. The results would have been classified as non-mailable matter under federal law. And it turns out that a dispute about whether a shady contest for free pianos tells us something about why the Trump administration has been trying so hard to restrict mail-in voting for the midterm elections. Could, should our ballots for the 2026 midterms be considered non-mailable matter under federal law? Time to find out. Speaker 1 (4:11) Let's do it. Speaker 1 (4:31) This is what Trump can teach us about con law. The ongoing series of indeterminate length and sporadic release where we look at the right to a free piano and the right to vote, and we use them to examine our Constitution like we never have before. Our music is from Doomtree Records. Our professor and neighbor is Elizabeth Jo, and I'm your fellow student and host, Roman Mars. Speaker 2 (5:02) All right. So, Roman, first, let's talk about why the midterm election in November is so important, right? Oh, yes. At this point in his second year of his second term, Trump's approval ratings are really low in the 30s. This is very low for historical standards for a president at this point in his second term. Speaker 1 (5:20) This Speaker 2 (5:20) is like Nixon levels of disapproval before he resigned. Speaker 1 (5:23) They're Speaker 2 (5:24) just terrible numbers. We're in a deeply unpopular war. We have high inflation, pessimism about the economy. unpopularity about immigration enforcement. And it doesn't help that Trump keeps talking about building his ballroom or Speaker 1 (5:36) building Speaker 2 (5:37) his arch. Speaker 1 (5:38) So Speaker 2 (5:38) what that means is that Democrats are very likely right now to secure a majority in the House. They have a chance of controlling the Senate. That's a little less certain. Speaker 1 (5:47) And what does it mean for Trump if they do win the House? Speaker 2 (5:50) Well, potentially a lot. So remember right now, Republicans control it all, the House, the Senate and the White House. If Democrats take the House, there are a lot of things that might happen. First, the House will certainly try to block Trump's legislative agenda. Any GOP bill will not pass a Democratic House, period. Second, investigations. A Democratic House means that Democrats will control House committees, and that means they will have the legal power to issue subpoenas and launch investigations into what the Trump administration has been up to. And this could include anything, right? Everything from how Trump and his family have been profiting from the presidency, foreign policy decisions, what kind of looks like a pay-to-play use of the pardon power, Speaker 1 (6:36) his Speaker 2 (6:36) ballroom project, the Epstein files. There's a huge list of potential topics. Now, Trump would certainly respond with his usual tactics, blocking and delaying and refusing and suing. But a Democratic House is almost certainly going to be launching investigations on day one. Speaker 1 (6:51) Yeah, yeah. Speaker 2 (6:52) So in the less likely event that the Democrats win the House and the Senate, there would be even more obstacles for Trump. Trump would have difficulty getting nominations through the Senate. That includes not just his executive branch appointments, but federal judges. And federal judges includes the Supreme Court. Justice Alito has expressed interest in retiring. So that is a whole other can of worms right there. Yeah, Speaker 1 (7:16) yeah. Speaker 2 (7:17) And a Democratic Congress also sets up the possibility of yet another Trump impeachment. Speaker 1 (7:23) That Speaker 2 (7:23) seems maybe less likely since there have been already two failed impeachments. And it's hard to know whether people have the energy to do that again. Speaker 1 (7:30) So Speaker 2 (7:31) all of this just halfway through his second term is why the midterms are so important and things do not look good for Trump. Right. So if you're Trump, you're extremely unpopular. You can't make the voters vote for you. And in fact, they're not even voting for you. They're voting for members of Congress. So if you can't do much about it directly, there's one thing you can do, and that is you can try and make it difficult, maybe impossible, for people who want to vote for a democratically controlled Congress as a check on him. Speaker 1 (8:01) And Speaker 2 (8:02) that is exactly what Trump has done. On March 31st of this year, Trump issued an executive order, which, simply put, tries to blow up voting by mail in the United States. Speaker 1 (8:13) So how does it do that? What does it propose? Speaker 2 (8:16) Okay, well, first let's establish some basics about voting by mail. This has been happening for a long time. States have allowed voting by mail since the Civil War. Keep in mind, the Civil War is like one of the very first times we have a big proportion of voting eligible men who are away from their home districts. Right. Speaker 1 (8:33) Yeah. Speaker 2 (8:33) And it wasn't run exactly the way voting by mail works today. If you were a soldier, then most of the time you'd have an election at your camp and then the results would be tallied. And then that result was sent back to your home district. But that precedent, ever since then, states have recognized that voting by mail is a legitimate and important way for people to exercise their right to vote. So, for instance, federal laws like the 1986 Uniformed and Overseas Citizens Absentee Voting Act, that's a law that allows members of the military and their families to vote from abroad because obviously they can't vote if they're not in their home districts otherwise. But the biggest recent impact on voting by mail happened in 2020 because of the pandemic, Speaker 1 (9:17) right? Speaker 2 (9:18) During the pandemic, many states did everything they could to give voters more choices so they wouldn't have to risk exposure to COVID-19. So that included early voting and voting by mail. And that had a huge effect. So in the 2020 election, 43 % of voters voted by mail. That's compared to 21 % of voters who voted by mail in 2016. And for the 2024 election, almost a third of the electorate voted by mail. So it is a really big and important part of how people vote today. So today, eight states allow all elections to be conducted 100 % by mail. Let's take California because that's where you and I are most familiar with that. So in California, county election officials mail ballots to every registered voter. You and I don't have to ask for one. They just mail it to us. Speaker 1 (10:09) It's the greatest. Speaker 2 (10:11) Yeah, it's awesome. We just say, you know, we just don't even have to say anything. We're registered voters. We simply get our ballots. Shows Speaker 1 (10:17) up, reminds you that it's happening, gives you everything you need. It's fantastic. Speaker 2 (10:22) Right. That means we vote at home and we put our ballots in the mailbox or put it in an official drop box or even drop it off in person. The easiest thing, though, is that we just put it in our mailbox and the postal carrier comes and takes it away. I Speaker 1 (10:34) think it's fun to put it in the drop box personally down by the library, but still. Speaker 2 (10:39) For me, whatever works, whatever gets people to vote. Right. So California, according to its own state law, will be mailing more than 23 million ballots to its registered voters for the midterms. Now, more than half of the states allow you to request a mail ballot without stating any reason. You can just say, I want one, and they'll send it to you. Now, the rest of the states have different rules about when and how you can vote in a so-called non-traditional way. And that means either voting by mail or voting in person, but early. But the main point is that voting by mail today is a very popular, pretty easy, and very secure way for people in most of the states to vote. Speaker 2 (11:19) I also don't want to give the impression that voting by mail represents just like an option for every voter. As if, you know, you can vote by mail or you can go in person and that's really just the choice for everybody. A lot of voters, and I'm talking about the elderly, disabled, people who live in rural areas, voting by mail is their only choice. So if there's no vote by mail, they don't vote at all. Speaker 1 (11:42) So Speaker 2 (11:42) now let's go back to Trump's executive order. Trump's order. does not try to dictate who is eligible to vote and or even who is eligible to vote by mail. And the order doesn't tell the states how to count votes or anything like that. There are several parts to the order, but the only part I want to focus on is section three, which is about the Postal Service. Trump's order directs the Postal Service to finalize a set of rules around voting by mail. So first, the order requires election officials around the country, before they do anything else, to send the name and address of every person who is supposed to receive a mail-in ballot to a portal created by the Postal Service. It doesn't appear to be public-facing yet, but more on that in a