Washington — A federal judge on Friday extended her block on the U.S. Postal Service’s new requirements for mail voting, as states prepare to begin sending mail ballots to voters for the November midterm elections.
U.S. District Judge Indira Talwani issued a preliminary injunction barring the agency from enforcing the rules, which were finalized and published late last month, during the midterms. Talwani had temporarily blocked the measure on Aug. 26 and, following a hearing Thursday, agreed to grant a request for longer relief sought by two dozen Democratic-led states and voting rights groups.
In her 49-page decision, the judge said the Postal Service’s new rules are likely unconstitutional and said states’ difficulties with implementing the regulations so close to the November elections “nearly guarantee[s] significant disenfranchisement for eligible voters.”
The judge also said the Postal Service likely exceeded its authority by moving ahead with the new requirements because “the Constitution reserves election regulation to Congress and the States, Congress has not authorized the USPS to make requirements of States before permitting use of the USPS for mailing their ballots, and … the Final Rule impermissibly establishes a new category of nonmailable material.”
“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,” she wrote.
Talwani reiterated concerns raised by state and local election officials about their ability to comply with the regulations in the weeks before the election and said they are already “consumed” with completing other election-related tasks, like registering voters, maintaining voter lists, conducting early voting and processing applications to vote by mail.
“The Final Rule’s new requirements would be an extraordinary amount of work for local officials at any time,” she wrote. “But imposing these mandates on election officials at present poses greater difficulties than otherwise because election officials are actively administering elections.”
The Justice Department is likely to appeal the decision.
During a hearing Thursday, government lawyers said that if Talwani continued to block the requirements, it would bypass the federal appeals court and seek the Supreme Court’s intervention. The Trump administration asked the high court later Thursday to let it enforce the mail-ballot limits — before the judge could issue her decision on the preliminary injunction.
The fast-moving legal battle is unfolding as states gear up to send mail ballots to voters. At least two municipalities in Wisconsin have already mailed ballots out, and in North Carolina, they will go out to certain voters Friday. More states will begin sending mail ballots around mid-September.
At issue in the case is a final rule issued by the Postal Service that requires states and localities to meet design requirements for mail ballots, including unique barcodes, and to submit to an online portal information about residents who will vote by mail, including their names, addresses and individualized barcodes.
Those voters will be enrolled with the Postal Service and included on state-specific “Mail-In and Absentee Participation Lists.”
The rule requires postal workers to review and verify ballot mail being sent to voters. Any ballot mailings that don’t comply with the requirements “will not be accepted and will be returned” to the election offices, the Postal Service said.
The Trump administration has said the rule imposes “modest informational requirements” on states and localities, and “should not prevent a single voter from voting by mail.”
But state and local election officials have warned that it will be expensive and logistically challenging to meet the Postal Service’s new mandates for the November elections.
An anonymous whistleblower has also warned of “potentially catastrophic problems” with the Postal Service’s system. The agency’s new mail ballot portal is “untested” and its development “rushed,” the whistleblower said in a disclosure provided to Congress. The federal official also warned that the Postal Service’s new verification process could keep significant numbers of mail ballots from being delivered.
The Postal Service has said it continues to make “refinements” to the new ballot mail portal and anticipates the portal will be available for voluntary use “by sometime next week.”
Because of Talwani’s earlier order that blocked implementation of the rule, the Postal Service is not requiring states and localities to submit ballot envelopes for review to ensure they comply with the new design rules.
The agency has, however, “made that review available for states that wish to voluntarily submit their envelopes for review to ensure that they meet the standards set forth in the Final Rule,” Steven Monteith, executive vice president of the Postal Service, said in a filing.
