U.S. District Judge Indira Talwani issued a 49-page preliminary injunction Friday that bars the Postal Service from enforcing the mandatory parts of its "Ballot Mail for Federal Elections" rule in the Nov. 3 midterms. The rule required election officials to submit envelope designs for Postal Service approval, print a unique barcode on every ballot envelope, upload voter information to a federal portal, and accept that the Postal Service would refuse to mail ballots that did not comply. The order came in a suit by 24 states and the District of Columbia, joined with a League of Women Voters case. It replaces the temporary restraining order Talwani issued Aug. 27.
The question before the courts is who writes the rules for the envelope a mail ballot travels in, and the answer is arriving after some of those envelopes have left.
The rule carries out Section 3 of President Trump's March executive order on election procedures, an order courts have blocked in pieces and the administration has rerouted through agencies it controls. The Justice Department went to the Supreme Court Thursday to lift the Aug. 27 restraining order. Justice Ketanji Brown Jackson set responses for 10 a.m. Tuesday. On Friday the states filed a letter telling the Court that order had been superseded. Whether the application is moot, amended or refiled against the injunction is the question Tuesday begins to answer. North Carolina mailed its first 46,000-plus ballots Friday under rules its state board adopted that morning. Wisconsin is already mailing.
- Twelve Republican attorneys general intervened to defend the rule.
- The Court's docket for No. 26A297 shows amicus briefs filed Friday and Saturday.
- Talwani wrote that Congress "has never delegated its Elections Clause power to the USPS."
Talwani holds the injunction. Solicitor General D. John Sauer holds the pending application. California leads the state plaintiffs and the Postal Service is the defendant. The Supreme Court sets the clock. The consequences land on county election offices that print and mail ballots, on the tens of millions of Americans who vote by mail, and on military and overseas voters whose ballots go out first.
Disputedwhether a federal agency the president controls may condition the mailing of ballots on state compliance with its design and data rules, and whether doing so weeks before an election protects the vote or obstructs it.
The FramingsAdministration framing (the Justice Department's application) presents the rule as modest envelope-design and addressee requirements within postal authority, aimed at mail-ballot fraud. State-plaintiff framing (California and 23 states) presents federal election regulation dressed as mail regulation, unauthorized by Congress and unconstitutional. Election-official framing presents the calendar: envelopes are printed, portals are unbuilt, and any new rule now costs time offices do not have. Republican-attorneys-general framing (the twelve intervenors) presents centralized tracking as a verification upgrade mail voting has lacked. Voting-rights framing (the League of Women Voters) presents the refusal-to-mail provision as the mechanism that disenfranchises, whatever the design rules say.
The RecordThe rule's four requirements and the injunction are in the 49-page order. Talwani found the Postal Service's "intention to withhold noncompliant ballots from the mail stream makes disenfranchisement more than likely, if not probable," and that the rule, "unauthorized by the Elections Clause," "clashes with Congress's statutory scheme." The record in the case does not establish that mail-ballot fraud is widespread. Confidence in the procedural facts: certain. Confidence in how the Court handles Tuesday's filings: low.
What to watch: Responses due at the Supreme Court in No. 26A297 by 10 a.m. Tuesday. Whether the Justice Department appeals the injunction to the First Circuit or refiles at the Court. North Carolina and Wisconsin keep mailing; most states begin mid-September.
Sources: AP (via PBS NewsHour), NPR, CBS News, The Epoch Times, Just the News, Supreme Court of the United States (docket No. 26A297), U.S. District Court for Massachusetts (preliminary injunction order)
