WASHINGTON, D.C. — The Trump administration and a coalition of states led in part by Washington state Attorney General Nick Brown have now laid out their competing cases to the United States Supreme Court over whether new U.S. Postal Service (USPS) rule for mail-in ballots may take effect before the November midterms—down to the 11th hour.
Solicitor General D. John Sauer asked the justices to stay a preliminary injunction—known as an Application of Stay—issued Sept. 4 by U.S. District Judge Indira Talwani in Boston and to grant an immediate administrative stay while the application is pending. The states, in an opposition filed Sept. 9 (a.k.a. Opposition to Application) and signed by Brown, California Attorney General Rob Bonta, Massachusetts Attorney General Andrea Joy Campbell and Nevada Attorney General Aaron Ford, asked the Court to deny the stay so the injunction remains in force through Nov. 3.
The legal battle centers on the USPS’s Aug. 26 final rule, “Ballot Mail for Federal Elections.” Under the rule, states that send federal election ballots through the mail would have to use automation-compatible envelopes bearing the Election Mail logo and unique Intelligent Mail barcodes, obtain Postal Service approval of those designs, and upload each intended recipient’s name, address and barcode data into a federal portal. The Postal Service would scan outgoing ballot mail and return pieces that do not match the portal.
Sauer’s application calls the rule a modest set of envelope-design and address requirements that govern use of the mail, not a federal takeover of how states run elections.
It argues Congress gave USPS authority to adopt regulations necessary to collect, handle and deliver mail, and that the agency has long set special preparation rules for sensitive items such as cremated remains and replica explosives. The government says many of the envelope standards were previously recommended in Postal Service guidance and are already used in some states. States would still decide who is eligible to receive a ballot he wrote and that the Postal Service would not check citizenship nor maintain voter rolls or count votes.
The Trump administration contends that the injunction is currently causing irreparable harm, arguing that ballots are going into the mail system now which cannot be pulled back, and that every extra day of delay makes it harder for USPS to apply the new checks this year. Keeping compliance voluntary, and not mandatory, the administration argues, creates confusion and may leave states unprepared if the stay is later granted.
Sauer also points to an Aug. 24 order by the Supreme Court in a related case, that already found the government was likely to suffer irreparable harm if a block on implementing a final rule lasted through the midterms, to further justify his position..
The states’ opposition, on the other hand, calls the new USPS rule an unprecedented interference with election administration on the eve of a major election.
AG Brown et al. argue that the Elections Clause of the U.S. Constitution assigns the “Times, Places and Manner” of congressional elections to the states and to Congress, not to an executive agency. The general postal statutes, the state argue, are ordinary grants of authority to run the mail system and do not authorize USPS to refuse to deliver ballots. Congress has historically acted only to make mail voting easier, they argue, referring to favorable postage rules and free delivery of overseas military ballots, and has never authorized a matching portal to validate ballots nor rejection of non-compliant election mail.
The opposition also argue that the rule is procedurally flawed because USPS did not adequately address states’ reliance on existing systems nor obtain a required opinion from the Postal Regulatory Commission.
“Allowing the challenged USPS rule to take effect for this year’s imminent November elections would ‘be an unmitigated disaster,'” Utah’s Lieutenant Governor said that was included in the Opposition to Application raising alarm bells over the potential “catastrophic harms” by USPS’ new rule.
In all-mail states, they further argue, there is little in-person voting infrastructure to even absorb a sudden breakdown in the current process stating, “there would be chaos—and a significant risk that millions more voters would be denied the ability to vote.”
Washington state’s all-mail voting system is central to the arguments laid out by AG Brown et al. AG Brown said after the rule was finalized, that compliance before November would be “practically impossible” given the demands on local officials and that “the chaos that would cause is exactly what Trump wants.”
Secretary of State Steve Hobbs told the Lynnwood Times after Talwani’s earlier order that the rule “would sow chaos” and that Washington would keep administering “safe, secure, and accessible” elections.
“I will continue fighting this administration’s efforts to dismantle vote-by-mail elections and disenfranchise voters,” Secretary Hobbs wrote in a statement following Thursday’s denial of appeal by the First Circuit Court leading to the upcoming Supreme Court application.
Elections are the lynchpin of our democracy, and my office remains dedicated to ensuring every voter can participate and make their voice heard.”
The states also state in their opposition that the Supreme Court has repeatedly declined to allow even smaller election-rule changes on the eve of an election. They state there is no evidence of impending mail-ballot fraud that would justify rushing the new USPS rule into effect now: “Defendants’ fears of harms to ‘election integrity’ (Appl. 29) while the court’s order is in place are wholly unfounded. USPS expressly declined to resolve ‘[w]hether or not voter fraud is common or uncommon’ when it adopted the final rule, 91 Fed. Reg. at 54969, and ‘the record includes no evidence relating to fraudulent mail voting,’ App’x 45a-46a. USPS thus cannot show that the rule’s immediate implementation is necessary to ‘address the risk that the federal mails will be used to perpetrate voter fraud.’”
The Trump administration replies that there is no “reverse Purcell” principle allowing a court to block a lawful postal regulation simply because officials say they cannot comply in time. It calls the states’ harm claims overblown or self-inflicted and notes that USPS is exempt from ordinary Administrative Procedure Act review of whether a rule is arbitrary and capricious. The best way to reduce uncertainty, Sauer argues, is to lift the injunction immediately so states know compliance is required.
Postmaster General David Steiner has even said that the Postal Service acted within its legal authority to carry out the president’s March executive order but will follow court determinations.
So, the battle to the Supreme Court by AG Brown to protect Washinton’s all-in vote-by-mail system commenced on Aug. 26, the day USPS published its final rule. Then on Aug. 27, Judge Indira Talwani issued a short-term restraining order blocking the rule. On Sept. 4 she replaced that order with a preliminary injunction limited to the November midterm election and only to the rule’s mandatory features. Then on Sept. 10 the First Circuit denied the Trump administration’s request to lift that injunction. Justice Ketanji Brown Jackson, who handles emergency filings from the First Circuit, then set the briefing schedule and now the full Supreme Court is expected to decide whether the new USPS rule can take effect this year.
Author: Mario Lotmore
