Third appeal filed as states begin mailing ballots
The Trump administration on Sunday filed a new emergency appeal with the Supreme Court, asking it to allow the U.S. Postal Service to implement new restrictions on mail ballots before the November midterm elections. The filing, the third time the administration has sought the high court's intervention, comes two days after U.S. District Judge Indira Talwani issued a preliminary injunction blocking the plan indefinitely.
Judge Talwani's order, handed down Friday in Boston, extended an earlier temporary restraining order against the Postal Service enforcing President Donald Trump's executive order on election mail. The administration had already asked the Supreme Court to lift the temporary order; that earlier appeal was withdrawn Sunday after the new filing, with the Justice Department saying it acted "to simplify proceedings" and filed the new appeal out of "an abundance of caution."
The legal fight is unfolding as states begin sending out ballots. North Carolina has already started mailing ballots, and Alabama is set to begin September 9, with at least five additional states starting the week of September 13, Solicitor General John Sauer wrote in the filing. "Once those ballot envelopes enter the mailstream, there is no retrieving them," the Justice Department told the court, arguing that each day the injunction remains in place "risks sowing confusion and chaos" because it makes preparations to comply with the rule voluntary rather than mandatory.
The Supreme Court has previously allowed the plan to move forward but has not ruled on its legality. Justice Ketanji Brown Jackson, who handles emergency appeals from the Boston-based 1st U.S. Circuit Court of Appeals, set a Wednesday deadline for responses to the administration's request.
What the Postal Service rule would require
The rule, issued to implement an executive order Trump signed in March, would require state and local election officials to upload lists of mail ballot recipients to a federal portal, including names, addresses and barcode information. All outbound and return ballot envelopes would need to bear unique Intelligent Mail barcodes and meet automation and design requirements, including the official Election Mail logo. The Postal Service could refuse to deliver ballots that do not comply or are associated with voters not on the lists.
The administration maintains the rule is a "lawful and modest exercise of rulemaking authority delegated by Congress to the Postal Service" and that it "regulates the U.S. Mail, not federal elections." In the filing, Sauer argued that states "cannot choose to use the federal mails to carry out their elections but then insist that their election-related mail is somehow exempt from the Postal Service's rulemaking authority." He said the rule would not give the Postal Service authority to determine voter eligibility, maintain voter rolls, or count ballots, and that eligibility for mail-in and absentee voting will continue to be governed by state law.
The administration has framed the restrictions as commonsense measures to improve ballot security and prevent fraud. Sauer said the rule is intended to ensure ballots are sent only to eligible voters and to enable tracking of ballot mail.
Lower court found rule likely unconstitutional
Judge Talwani, an Obama appointee overseeing challenges from more than 20 Democratic-led states and from civil and voting rights groups, ruled that Trump's directives were likely unconstitutional and would grant the federal government power over the handling of mail-in ballots. In her Friday order, she wrote that with just two months until election day, the rule "threatens disenfranchisement of millions of United States citizens who seek to vote by mail," according to reporting by Al Jazeera.
The judge also found that "Congress has never delegated its Elections Clause power to the USPS," as reported by Forbes. The ruling agreed with arguments from Democratic state attorneys general that the rule would intrude on states' constitutional responsibility to administer elections.
The administration argued in its filing that the judge's decision was "baseless" and would cause "irreparable harm" to the public, according to Forbes. Sauer asked the Supreme Court to grant an immediate administrative stay, saying it would remove "the improper cloud of uncertainty that the district court has cast over the Rule."
Opposition and concerns about timing
Democratic-led states and voting rights groups have challenged the restrictions as unconstitutional, with some arguing the changes amount to voter suppression. Election officials have said there is not enough time to revise their systems to comply with the new requirements, noting in court filings that ballot envelopes have already been ordered and printed.
ACLU Voting Rights Project director Sophia Lin Lakin said in comments reported by The News International that with fewer than 60 days before the election, "there is not a shred of evidence that states could comply with it without disenfranchising voters who rely on mail ballots."
The dispute carries high stakes for the November elections, when control of Congress is at stake. Nearly one-third of U.S. voters cast mail ballots, according to multiple reports. All states allow some form of mail-in voting, with 29 states permitting voters to request a mail ballot without providing a reason and eight conducting elections entirely by mail.
Trump has long sought to limit mail voting, despite often using the method himself, and has falsely claimed his 2020 election loss was the result of widespread voter fraud, according to reports citing the president's statements.