“The executive branch has no authority to regulate elections,” Massachusetts District Court Judge Indira Talwani wrote this month — this time prohibiting the U.S. Postal Service from issuing new security rules for mail-in ballots.
Solicitor General John Sauer, in requesting the Supreme Court stay the judge’s ruling, wrote back: “the district court seriously overstepped the bounds of longstanding Article III standing and ripeness principles.”
Not only that, he writes, the lower court prejudged the merits of a “hypothetical rule with provisions the district court could only speculate a final rule might contain.”
That’s the state of play amid frenzied injunctions that lower district courts have rushed out to block the Trump administration’s Executive Orders that enforce federal law prohibiting fraud in elections.
In this case Judge Talwani’s injunctions involve EO14399, “Ensuring Citizenship Verification and Integrity in Federal Elections.”
Section 3 of that EO addresses federal statutes that prohibit the “unlawful use of [the] mail” in connection with federal elections.
In June, Judge Talwani took up the cause of Democratic state attorneys general by asserting that core parts of EO 14399 could not take effect. She then issued another injunction on Aug. 11th on behalf of the League of Women Voters, which used the EO to speculate what the U.S.P.S. might issue — and blocked it based on a guess.
Amid appeals of her injunctions to the Supreme Court, the U.S.P.S. issued new rules Friday for securing mail-in ballots in the midterm election. If the injunctions stays are lifted, the rules are ready to go.
(This would not be the first time the Supreme Court and appeal courts have issued stays on this judge’s injunctions of Trump administration policies.)
The 95-page rule-notice the U.S.P.S. issued on Aug. 21 does nothing that Judge Talwani’s injunction ordered it not to do.
The rule-notice also addresses some distortions among the over-200,000 comments on the new rule. For example:
And it adds:
As SG Sauer writes in the his latest Supreme Court application to stay all of the lower district court injunction:
The final rule requires federal ballots transmitted through the U.S. Mail to be mailed in envelopes that include the official Election Mail logo, are automation compatible, and use unique barcodes that denote the item’s status as federal ballot mail and its delivery point ZIP code.
The rule amends USPS’s Domestic Mail Manual to impose modest envelope design requirements for federal ballot mail. The rule was issued pursuant to the Postal Service’s rulemaking authority in 39 U.S.C. 401(2) and operational authority in 39 U.S.C.404(a)(1).
Contrary to Judge Talwani’s injunction, the new rule “will not refuse to transmit ballots from individuals who were not included on a state-submitted list, as Section 3(b)(iii) of the [EO had] contemplated,” the administration’s motion says.
Yet the [prior] injunction nonetheless precludes the rule’s implementation as to the November 2026 federal election in the respondent states based on the court’s assessments of the Order’s proposals and potential implementation, not the contents or application of a rule actually in effect, Sauer adds.
Meanwhile, SCOTUS Wire noted, the “Supreme Court remains silent on President Trump’s bid to restore his election executive order,” while voting rights groups have rushed into Judge Talwani’s court again (a day after the U.S.P.S. issued the rules) to get the rule itself thrown out.
Hence the administration’s (expected) application to stay both injunctions and get the lower courts out of the postal service’s clear authority to issue security rules for mail-in ballots.
In response to the League of Women Voters latest motion demanding the rule be tossed out, Judge Talwani is now ordering the Trump administration to file more responses Tuesday about the new U.S.P.S. rules.
It’s a volley of motions from groups that are offering no evidence beyond a claim their voting rights theoretically might be impacted. Yet they are handed standing by Judge Talwani to block U.S.P.S. rule-making authority that Congress authorized to safeguard the mail.
We await the Supreme Court’s decision on this application and other stay appeals. #
UPDATE: The Supreme Court issued a stay of the June injunction (see ruling here), and the DOJ soon after filed an emergency stay of Talwani’s August injunction against the U.S.P.S. rule on securing mail-in ballots.
See our updated coverage here.