The Trump administration returned to the Supreme Court on Thursday in an urgent effort to revive new restrictions on mail ballots, asking the justices to overturn a federal judge’s order blocking the rules just as states prepare to begin sending ballots for November’s midterm elections.
The emergency appeal was filed Thursday afternoon, one day before North Carolina was scheduled to begin mailing ballots to voters, marking the start of a wave of states launching their mail-voting operations. The Supreme Court filing was the latest development in a rapidly unfolding series of legal battles over President Donald Trump’s executive order imposing new requirements on ballots sent through the U.S. Postal Service.
The Supreme Court’s conservative majority previously permitted the administration’s plan to proceed temporarily, although the justices have yet to decide the broader question of whether the restrictions themselves are lawful.
Trump’s executive order would allow the Postal Service to decline to deliver mail ballots from states that fail to comply with standardized envelope requirements and provide lists of eligible mail voters through a federal online portal. As of Thursday, however, questions remained about whether that portal was actually operational.
During a hearing in Boston on Thursday, U.S. District Judge Indira Talwani repeatedly pressed Justice Department attorney Michael Velchik about whether the Postal Service was prepared to carry out the administration’s plan. The online portal is a central component of the system and would potentially be used to track tens of millions of ballots. States would have to upload lists of voters receiving mail ballots, and ballots could be withheld from delivery if information on their envelopes did not correspond with data in the system.
“I don’t even have a declaration from the Postal Service: ‘This is how it will work.’ I don’t have it. I have nothing,” Talwani said, adding later that it felt like the government was running an “experiment” to see if the system would work in the upcoming election.
“As you sit here today, you can’t tell me the government has a program ready to go?” Talwani asked.
Velchik maintained that the Postal Service would “fully implement the rule” it issued last month, while arguing that the central legal question was whether Talwani had the authority to prevent the agency from doing so.
“The $64,000 question is, is this authorized by the statute?” Velchik said.
Talwani was weighing whether to keep in place through Sept. 10 her temporary order preventing the Postal Service from requiring states to use the new system. The timing has become particularly significant because North Carolina was scheduled to begin sending all requested mail ballots Friday, with additional states expected to follow soon afterward.
The dispute was not Talwani’s first encounter with Trump’s mail-voting order. In June, she barred the administration from implementing the executive order for November’s elections, concluding that the federal government was attempting to impose significant changes too close to the start of voting.
Late last month, however, the Supreme Court concluded that Talwani had acted prematurely because the Postal Service had not yet issued regulations detailing how Trump’s directive would be implemented. The agency subsequently published those regulations, leading Democrats and voting-rights organizations to quickly renew their legal challenges.
Opponents of the administration’s policy argue that Trump lacks constitutional authority to impose election requirements of this kind. They contend that responsibility for establishing election procedures belongs primarily to the states, with Congress also possessing authority in certain circumstances.
The challengers initially prevailed when Talwani issued a 14-day restraining order against the new requirements. Administration attorneys appealed that decision to the 1st U.S. Circuit Court of Appeals in Boston before taking the additional step Thursday of asking the Supreme Court to intervene quickly as election deadlines approach.
Trump has long been a critic of widespread voting by mail and has repeatedly challenged the way mail ballots are handled. He has also personally cast ballots using mail voting.
State and local election officials have warned that complying with the new Postal Service requirements at this stage could force them to substantially restructure procedures that are already underway. Before delivering a state’s mail ballots, the Postal Service would have to approve the envelopes being used and require the state to upload information about recipients into the new online system.
Some mail ballots were already in circulation by Thursday. Several Wisconsin municipalities began sending ballots earlier in the week, while North Carolina’s statewide mailing on Friday was expected to represent the first major launch of mail voting ahead of the November election.
The administration has argued that the requirements constitute relatively modest changes that fall within the Postal Service’s existing legal powers.
“While the States have primary authority to regulate the manner of elections, they 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, conferred by Congress, to regulate envelope design and addressee information,” Trump’s solicitor general, John Sauer, wrote in the appeal.
Much of Thursday’s hearing before Talwani centered on whether the plan could actually be implemented in time. The online portal had apparently not yet become operational, while election officials around the country had already printed large quantities of ballots and envelopes.
Velchik told the court that states could voluntarily opt into the new system. The Postal Service, however, had not identified any state that had chosen to do so. Even the 12 states that intervened in the case in support of the administration’s authority to establish the program had not announced plans to voluntarily participate.
Talwani challenged Missouri Solicitor General Lou Capozzi over his state’s support for the administration’s plan.
“You want the voters in your states to be disenfranchised,” Talwani said. “I don’t understand the interest.”
Capozzi rejected that characterization.
“There is no risk that people would be disenfranchised.”
Adding to the controversy, a whistleblower report released this week warned that the Postal Service requirements could result in millions of mail ballots never reaching voters. Under the new rule, batches of ballots would have to be physically delivered to post offices before being mailed. According to the report, if the barcode on even a single ballot produces an error, an entire batch potentially containing tens of thousands of otherwise valid ballots could be rejected.
