By Mary Alice Miller
The Trump administration appealed a ruling from a Boston federal judge that halted mail-in voting rules.
The appeal took place on August 28, one day after Judge Indira Talwani froze a Postal Service rule published last week writing it was likely unconstitutional and exceeded the agency’s authority.
Judge Talwani’s ruling blocked the U.S. Postal Service from making changes to mail-in voting procedures a mere weeks before the midterm elections.
According to a report by the New York Times, Judge Indira Talwani of the Federal District Court for the District of Massachusetts, in a ruling on Thursday, August 27, wrote that while the Supreme Court had previously said the issue was not ripe, the justices had also concluded that it was not yet clear if the administration’s plan was lawful. She wrote that it was likely not.
Judge Talwani is an Obama appointee.
Under the rule, the Postal Service would not deliver mail ballots in states that do not share voter data with the agency, and would only deliver ballots to voters on a USPS-created list of “enrolled” voters.
The Trump administration had argued that the Postal Service plan would not give the agency an overly intrusive role in scrutinizing voters or regulating election mail.
“The Postal Service will not determine voter eligibility, ballot content, mailing or receipt deadlines, or ballot-counting procedures,” the agency said in a filing.
In response to the Postal Service’s published rule, a group of more than 20 Democratic state attorneys general and a coalition of voting nonprofits and organizations returned to court to challenge it.
The Supreme Court had considered the issue once already, and on August 24 issued an unsigned opinion that found it was too soon for litigants to challenge the March mail-in ballot executive order because the Postal Service had not yet taken steps to carry it out.
On August 24, the Supreme Court cleared the way for the Trump administration to implement an executive order that imposed restrictions on mail-in voting by pausing an injunction issued by U.S. District Judge Indira Talwani in Boston. SCOTUS issued the 10-page unsigned opinion seven weeks before the November Midterm General Election.
Judge Talwani’s injunction had barred the federal government from applying provisions of that executive order in the upcoming November elections to 23 states and the District of Columbia that has challenged the legality of the restrictions.
“This decision is a painful setback, but it will not be the final word. The right to vote is sacred, and no administration should be allowed to put that right in jeopardy by making it harder for eligible voters to cast their ballots,” said New York State Attorney General Letitia James in a statement. “This fight is far from over. We are exploring our legal options.”
The dispute over mail-in ballot restrictions originated with an executive order signed by Trump in March.
In a statement from the New York State Attorney General’s office, “Attorney General James, 22 other attorneys general, and the governor of Pennsylvania filed a lawsuit on April 3 challenging the president’s executive order that would have upended state election systems, baselessly restricted mail-in voting, and threatened election officials with prosecution for carrying out their duties.
On June 25, the U.S. District Court for the District of Massachusetts granted the coalition’s motion for summary judgment and blocked key provisions of the executive order.
After the U.S. Court of Appeals for the First Circuit declined to overturn the ruling, the Trump administration appealed to the Supreme Court, and today the Supreme Court granted the administration’s motion for a stay of the District Court’s decision.”
SCOTUS’ own June decision upheld Mississippi’s law allowing mail-in ballots postmarked by Election Day to count if received up to five days later.
However, there are three elements of the executive order that the Supreme Court majority said in its unsigned opinion that the states’ challenge was too soon for courts to consider because the order has not yet been carried out, meaning that the states have not suffered the kind of injury that allows their lawsuit to move forward.
SCOTUS blog outlined the three provisions at dispute:
“As it came to the court in late July, the focus of the case was on three different provisions of the order. The first instructs the Department of Homeland Security to create lists of the adult U.S. citizens in each state and to send those lists to states at least 60 days before a federal election. The second provision commands the U.S. attorney general to “prioritize the investigation and, as appropriate, the prosecution of State and local officials … who issue Federal ballots to individuals not eligible to vote in a Federal election.” And the third provision requires states to give the U.S. Postal Service a list of voters to whom the states intend to send mail ballots, and it prohibits the USPS from mailing ballots to voters who are not on the lists of “enrolled” voters that the USPS will create.”
A group of 23 states, led by California, and the District of Columbia challenged the government’s implementation of the order in federal court. That group of states argued that the executive order conflicts with provisions in the Constitution that give states the power to determine voter eligibility and to set the “Times, Places, and Manner” of holding congressional elections.
Mail-in ballots were set to go out as early as tomorrow in North Carolina.
The issue will likely be settled by the Supreme Court.