A coalition of blue states told the Supreme Court that complying with a new U.S. Postal Service rule for the midterms “would be impossible” for some states and would lead to millions of voters being unable to vote by mail and others being unable to vote at all. In other states, the coalition said, it would produce “chaos” and “a significant risk that millions more voters would be denied the ability to vote.”
Delivering that warning on Wednesday, California and other states and the District of Columbia urged the justices to keep in place a preliminary injunction against the rule that the Trump administration wants the high court to upend ahead of November.
While the administration told the justices that the new Postal Service rule only imposes “modest envelope-design and addressee-information requirements for federal-election ballots sent via U.S. Mail,” the states said there’s nothing modest about the ballot restrictions.
“Tens of millions of Americans will likely wish to vote by mail this year,” they said in their opposition to the administration’s application to lift the injunction. “Under the challenged rule,” they said, “ballots will not be delivered to those voters unless each is registered in USPS’ new, not-yet-functional online portal; a voter-specific Intelligent Mail barcode (IMb) is printed on outgoing and return ballot envelopes; and those barcodes are accurately tied to each voter and uploaded to that same portal. “
They said the efforts of state and local election officials to even start to try to comply with the rule are “herculean” and that the process “is fraught with an extreme risk of error.”
When she issued the preliminary injunction against the rule last week, U.S. District Judge Indira Talwani found that implementing it right before the November elections “threatens disenfranchisement of millions of United States citizens who seek to vote by mail.”
The Obama-appointed judge in Boston said there was no evidence of mail-voting fraud presented in the litigation to support “the rushed implementation of the Final Rule.” President Donald Trump has railed against mail voting as fraudulent while voting that way himself.
Yet Solicitor General D. John Sauer pressed the fraud point in his pending application for the high court to lift Talwani’s injunction, which the justices could act on in the coming days. There is not a deadline for them to rule.
“In particular,” Sauer said, the district judge’s order “bars the Postal Service from verifying that mailed envelopes comply with the Rule’s requirements for the upcoming elections.” He said she nullified the government’s efforts to address “a particularly pernicious species of fraud that dilutes the votes of lawful voters, prevents election results from reflecting the will of the American people, and undermines ‘public confidence in the integrity of the electoral process.’”
Sauer said the Postal Service rule creates “standardized design and review requirements for ballot envelopes that build on practices the Postal Service has long recommended,” and that it makes states “upload the name, address, and barcode information of intended recipients of ballot mail in an online portal — information that election officials would necessarily already possess to send ballot mail under the Rule to those recipients.”
He said the rule “ensures that States remain responsible for determining voter eligibility and eligibility to vote by mail, and it does not dictate ballot content, mailing or receipt deadlines, or ballot-counting procedures.”
Given all of that, he said the rule “plainly does not seize control of States’ administration of elections — it simply imposes reasonable preparation requirements for certain election-related mail.”
The Supreme Court previously sided with the administration at an earlier stage of the litigation, ruling that a challenge to Trump’s executive order on mail ballots was premature because it hadn’t been implemented yet. In that ruling last month, the court emphasized that it wasn’t saying that any action taken to implement the order “will necessarily be lawful,” adding: “On that score, time will tell.” The new rule and the litigation it prompted brought the issue back to the justices for what could be a more definitive resolution.
Among the several outside parties weighing in at the Supreme Court is a bipartisan group of current and former members of Congress, which told the justices in an amicus brief that the administration’s executive order and rule “unconstitutionally and unlawfully usurp for the Executive Branch the authority over federal elections that the Framers granted exclusively to the States and to Congress.”
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