The Trump administration’s latest move to restrict mail-in voting in the midterm elections defied a court order and injected needless chaos and confusion into the process, voting rights groups told the judge whose order they said the administration is violating.
The claim comes in fast-moving litigation over the administration’s efforts to add new requirements for mail ballots in the November elections that will determine congressional control. It’s an issue that the Supreme Court could weigh in on at any time.
The League of Women Voters and other groups made the claim of government defiance in an emergency motion over the weekend to U.S. District Judge Indira Talwani in Massachusetts. They noted that the Obama-appointed judge had previously issued a preliminary injunction against such restrictions from President Donald Trump’s executive order. When she issued her injunction, Talwani said the order “is presently causing confusion and threatening both increasing chaos and an erosion of trust in our democracy.” She found that ensuring people can vote “heavily outweighs the executive’s attempt to unconstitutionally insert itself into the domain of election regulation.”
And yet, the voting rights groups told the judge, the U.S. Postal Service “flouted” her order on Friday by posting what’s known as a “final rule” that the groups said would violate her injunction by imposing new mail ballot requirements for the midterms. The groups said the government could have easily complied with the judge’s injunction by specifying that the rule wouldn’t take effect until after the midterms. But instead, the administration wants to implement the restrictions ahead of November.
“The issuance of the Final Rule with immediate effect will also sow widespread confusion among election officials and the public, thereby undermining voter confidence and disrupting the administration of elections,” the groups told the judge on Saturday, seeking an order enforcing the injunction. Because the final rule is set for publication on Wednesday, they asked for the administration to respond by Tuesday so that the judge will have a chance to issue another order against the administration by Wednesday.
In a filing to Talwani on Sunday, the administration complained that having to respond within two business days is “an unnecessarily short period of time to prepare and file a response to the remarkable accusation that the United States is violating a court order.” It also stressed that the final rule will only apply to the midterms if the government “obtains relief from all outstanding court orders,” referring to Talwani’s injunctions both in this case and in a separate case that is pending at the Supreme Court, in which the justices could act at any time. The plaintiffs in the other case are 23 states and the District of Columbia.
In an order on Sunday setting the litigation schedule in the district court, Talwani said it was the government that created an emergency by posting the final rule on Friday night after the courts closed. She told the administration to respond to the voting rights groups’ emergency motion by 8 a.m. ET on Tuesday, so that she has a day to address it ahead of the rule’s intended publication on Wednesday.
Meanwhile, in the separate but related case that’s pending at the Supreme Court, Solicitor General John Sauer filed a supplemental brief Monday in connection with Friday’s rule. He said it “imposes only modest requirements for preparation and envelope design for federal ballot mail.” He also said it “underscores the need for relief” from the justices to lift Talwani’s injunction, which he said “seriously overstepped the bounds of longstanding Article III standing and ripeness principles,” referring to the rules for bringing lawsuits.
Sauer has been arguing to the justices that the challenge to Trump’s executive order is premature because the order “merely instructs agencies to pursue a proposed policy in a manner that is consistent with law, while leaving open material issues for them to resolve.”
Yet the states said there’s “no sensible reason” to have them wait to challenge the order until much closer to the midterm elections.
“The consequences of allowing such transformative changes to take effect so close to this fall’s elections would be extreme,” they said in opposing the administration’s pending emergency application to lift Talwani’s injunction in that case. “Because of the high risk of errors and the limited window for correcting mistakes, many of the millions of voters who rely on mail voting — especially voters with disabilities and those in rural areas — would likely be denied mail ballots and, as a result, disenfranchised,” they told the justices.
Even if the Massachusetts judge issues her latest order before the justices act, the high court could have the last word. A decision in the pending case has been ripe for weeks, so there could be sharp disagreement brewing among the justices.
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