Judge extends pause on 'unconstitutional' Trump order limiting vote-by-mail

President Donald Trump’s order restricting mail-in voting is unconstitutional, U.S. District Judge Indira Talwani said in a Friday order extending a freeze on the policy.

Talwani, who was appointed by President Barack Obama, issued a preliminary injunction late Friday, 60 days before Election Day, blocking a U.S. Postal Service rule from going into effect while court challenges play out. The injunction converts a 14-day pause she ordered a week prior.

The Massachusetts judge voiced several serious concerns about the policy, including that it infringes on states’ constitutional power to administer elections and Congress’ power to legislate election policy.

The rule, which the Postal Service published last month based on a Trump executive order in March, would disenfranchise voters who depend on mail voting, give states the impossible task of overhauling their election systems ahead of a fast-approaching election and assert power the agency does not have under the U.S. Constitution, Talwani said.

The Trump administration is almost certain to appeal Talwani’s order and the lengthening court battle will likely ultimately be settled by the Supreme Court.

Not an election regulation, USPS says

The administration and a handful of GOP state attorneys general have defended the rule as a “modest” mail regulation and not an election regulation. 

A statement from U.S. Postmaster General David Steiner restated the claim earlier Friday.

The portions of the rule establishing technical standards for ballot envelopes were based on longstanding best practices and were not “breaking new and uncharted ground,” Steiner wrote.

Similarly, a more controversial provision requiring states to send the Postal Service a list of eligible voters was also not complicated for the agency, he said, noting that USPS would not amend the lists.

“The USPS does not edit, change, review or question the contents of the list—the list is merely a list of voters that a State says are receiving a ballot through the mail,” he wrote. “So basically, the State provided list is a manifest identifying the recipients of ballot mail.”

Clash with law passed by Congress

Talwani said Friday the federal government’s denial that the rule is an election regulation “rings hollow.” 

“Throughout its body of election legislation, Congress has never delegated its Elections Clause power to the USPS,” she wrote. “Unauthorized by the Elections Clause, the Final Rule clashes with Congress’s statutory scheme, and is unconstitutional where it intrudes not only on Congress’s Elections Clause powers but also that power left to the States.”

In addition to the constitutional principles the rule violates, it is unworkable ahead of the Nov. 3 midterm elections that will determine control of Congress, she said. 

All states allow some form of mail-in voting. The first ballots were sent Friday, with North Carolina starting to mail ballots to certain voters. 

In a statement following the ruling, Massachusetts Attorney General Andrea Joy Campbell, one of the Democratic attorneys general who sued to block the rule, said Talwani’s order would keep the commonwealth’s election administration on track.

“This order protects our ability to effectively deliver mail ballots to all residents relying on them to make their voices heard in the November election,” she said. “Voters should continue to vote-by-mail as usual and know that this system is safe and secure.”