Trump’s plot to take over state voting systems had a busy week in court. The U.S. Postal Service’s final rule on Ballot Mail for Federal Elections took effect August 21, got formally published August 26, then got blocked by Judge Indira Talwani less than 24 hours later. Over the weekend, the government moved to stay that injunction pending appeal, on the theory that it’s somehow illegal to challenge an illegal government takeover of elections if “appellate review in the ordinary course would come too late for the 2026 midterms.”
The Supreme Court’s conservative justices have once again introduced chaos into an election cycle by jettisoning any pretense of doing real law. And there’s plenty of time left for them to make it even worse!
Ballot grab
Trump has scrambled to assemble a national voter registry since returning to office. The Justice Department’s Civil Division filed dozens of lawsuits ordering states to hand over their unredacted voter rolls, including Social Security and drivers’ license numbers. So far, the government is 0-for-23 in those cases. But the administration hasn’t quit trying to get that voter data.
In March, Trump belched out an executive order requiring states to route their mail ballots through a new USPS-run enrollment portal, slap voter-specific barcodes on every ballot envelope, and submit to USPS “verification” before a single ballot goes out. Miss any of those steps, and USPS won’t transmit the ballot at all. And because the statute requires states to preregister all mail-in voters with the post office, Trump would get his hands on at least a partial voter list from every state.
In May, Judge Carl Nichols in D.C. rebuffed the DSCC’s and NAACP’s motion for a TRO because USPS hadn’t yet finalized the rule. A month later, Judge Talwani in Massachusetts reached the opposite conclusion in a parallel suit brought by 23 states and D.C. She found that the election officials faced imminent harm because they’d already purchased noncompliant envelopes, trained their staff, and programmed machines — efforts which would have to be repeated at great expense if the rule were allowed to go into effect. She held that any action by the Postal Service to block election mail would be ultra vires — i.e. outside of lawful authority — and enjoined the agency from doing anything to implement the executive order.
On August 24, the Supreme Court stayed Judge Talwani’s ruling. By then, the Post Office had actually published the final rule, but the six conservative justices tut-tutted that Judge Talwani had gotten ahead of herself by acknowledging the imminent harm facing the state plaintiffs when they filed back in April.
“At the time this suit was filed—the time when standing is measured—the District Court had to engage in a string of speculations to find this suit justiciable,” they scolded.
The government’s howls that the states filed prematurely because there’s no imminent harm are undercut by its emergency demand that it be able to visit that harm on them immediately. As Justice Jackson noted in dissent:
To be sure, the Court has not foreclosed States from challenging this blatantly unconstitutional Order. But it declines to explain when, exactly, is the right time to bring a meritorious election-rule claim challenging unconstitutional interference with electoral processes. The majority just signals that these claimants had to wait—even though the election cycle had started and despite facing pocketbook costs, threats of prosecution, and an affront to their sovereignty—before receiving the relief to which they are likely entitled.
Two days later, Judge Talwani lifted her prior injunction in light of the Supreme Court’s ruling, but invited the plaintiffs to file an amended complaint now that the rule has been finalized. Which they did within hours, along with a second motion for TRO. The very next day, that motion was granted and the injunction was back on.
Ballots are not cremated pets, you weirdos
Which brings us to this weekend. The government filed an immediate notice of appeal to the First Circuit and asked Judge Talwani to stay her own order while that appeal plays out.
DOJ describes the rule as nothing more than routine housekeeping: “This is ultimately a regulation of the U.S. mail, and a modest one at that—not a federal takeover of election administration by the Postal Service.”
They argue that the post office does too have authority to interdict ballots under 39 U.S.C. § 404(a)(1), which grants it responsibility “for the disposition of undeliverable mail.” Of course, these ballots aren’t “undeliverable” — Trump just ordered the Post Office not to deliver them unless states allow him to seize control of local elections.
The government adds that it has authority to impose tracking regulations on deliveries which are “both sensitive and non-dangerous.”
“Although ballot mail does not present the same operational issues as cremated remains or replica explosives, it is sensitive mail that raises unique and important operational considerations,” they huff, without explaining what interest the federal government has in policing those considerations.
The DOJ’s arguments about irreparable harm are even more screamingly disingenuous. The government delayed this case for months by claiming the harms were speculative, but now says it’s too late for relief.
Two weeks before USPS issued the final rule, DOJ told Judge Talwani that courts could sweep in and supply full relief if that rule ever harmed a voter. Days before the rule dropped, DOJ said plaintiffs could simply amend their complaint once the rule was finalized. Now that the plaintiffs have done exactly that, DOJ says they waited too long, because appellate review “would come too late for the 2026 midterms.”
Obviously, the only solution is to let them continue breaking the law through November!
DOJ and the eleven intervenor states filed their motions to stay late Friday evening. Neither asked for expedited briefing, even though both insist North Carolina and Alabama’s mailing deadlines — September 4 and September 9 respectively — mean every day counts. But even they can’t guarantee that this scheme could feasibly be implemented before the November 3 election.
Missouri Secretary of State Denny Hoskins submitted a bare bones affidavit attesting that “The temporary injunction threatens imminent irreparable harm to Missouri’s elections because it would likely bar Missouri from fully complying with the Rule—and benefitting from the increase in security to mail voting it would guarantee—during the 2026 General Election.”
That’s not what irreparable harm means. But even Hoskins couldn’t guarantee that it would go off without a hitch: “Although my staff are still figuring out some details of implementation, I believe it is possible to implement this rule for the 2026 General Election.”
Back in D.C., the plaintiffs went back to Judge Nichols with a renewed motion for injunctive relief, and they’re quite clear on those “details of implementation.” As the USPS’s own factfinding sets out:
Scanning a barcode generally takes less than a minute per mailpiece. Depending on how many barcodes are scanned, the verification process should take no more than a few hours for larger mailings, and potentially only a few minutes for smaller mailings. Authorized Ballot Mailers should remain at the BMEU [Business Mail Entry Unit] or postal retail location during the verification process.
So by the government’s own math, the ballot-scanning process will be so cumbersome that election officials will be effectively stranded at the post office waiting indefinitely for someone from USPS to scan their mail-ballots. As the DC plaintiffs note in their motion, this makes the proposed vote scheme wholly infeasible.:
For example, Maricopa County, Arizona is expected to mail more than 2.6 million outbound mailpieces as part of its first mailing of ballots for the 2026 general election. If it takes USPS one minute to scan each of the 2.6 million mailpieces, the Maricopa County Recorder will have to remain at the BMEU continuously for nearly 5 years. If 30 seconds per mail piece, 2.5 years. If one second, 30 days. And if a tenth of a second, it would still take 72 hours.
This is the same Postal Service that lost $9 billion last fiscal year and has suspended required pension payments, being asked to stand up a nationwide voter-enrollment portal from scratch, untested, in under six weeks. But nothing matters until the six conservative justices get a chance to weigh in.
Relatedly …
DSCC v. Trump [Docket via Court Listener]
League of Women Voters v. Trump [Docket via Court Listener]
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
The post Trump Admin Says Post Office Can Treat Ballots Like Cremated Pets appeared first on Above the Law.
Trump’s plot to take over state voting systems had a busy week in court. The U.S. Postal Service’s final rule on Ballot Mail for Federal Elections took effect August 21, got formally published August 26, then got blocked by Judge Indira Talwani less than 24 hours later. Over the weekend, the government moved to stay that injunction pending appeal, on the theory that it’s somehow illegal to challenge an illegal government takeover of elections if “appellate review in the ordinary course would come too late for the 2026 midterms.”
The Supreme Court’s conservative justices have once again introduced chaos into an election cycle by jettisoning any pretense of doing real law. And there’s plenty of time left for them to make it even worse!
Trump has scrambled to assemble a national voter registry since returning to office. The Justice Department’s Civil Division filed dozens of lawsuits ordering states to hand over their unredacted voter rolls, including Social Security and drivers’ license numbers. So far, the government is 0-for-23 in those cases. But the administration hasn’t quit trying to get that voter data.
In March, Trump belched out an executive order requiring states to route their mail ballots through a new USPS-run enrollment portal, slap voter-specific barcodes on every ballot envelope, and submit to USPS “verification” before a single ballot goes out. Miss any of those steps, and USPS won’t transmit the ballot at all. And because the statute requires states to preregister all mail-in voters with the post office, Trump would get his hands on at least a partial voter list from every state.
In May, Judge Carl Nichols in D.C. rebuffed the DSCC’s and NAACP’s motion for a TRO because USPS hadn’t yet finalized the rule. A month later, Judge Talwani in Massachusetts reached the opposite conclusion in a parallel suit brought by 23 states and D.C. She found that the election officials faced imminent harm because they’d already purchased noncompliant envelopes, trained their staff, and programmed machines — efforts which would have to be repeated at great expense if the rule were allowed to go into effect. She held that any action by the Postal Service to block election mail would be ultra vires — i.e. outside of lawful authority — and enjoined the agency from doing anything to implement the executive order.
On August 24, the Supreme Court stayed Judge Talwani’s ruling. By then, the Post Office had actually published the final rule, but the six conservative justices tut-tutted that Judge Talwani had gotten ahead of herself by acknowledging the imminent harm facing the state plaintiffs when they filed back in April.
“At the time this suit was filed—the time when standing is measured—the District Court had to engage in a string of speculations to find this suit justiciable,” they scolded.
The government’s howls that the states filed prematurely because there’s no imminent harm are undercut by its emergency demand that it be able to visit that harm on them immediately. As Justice Jackson noted in dissent:
To be sure, the Court has not foreclosed States from challenging this blatantly unconstitutional Order. But it declines to explain when, exactly, is the right time to bring a meritorious election-rule claim challenging unconstitutional interference with electoral processes. The majority just signals that these claimants had to wait—even though the election cycle had started and despite facing pocketbook costs, threats of prosecution, and an affront to their sovereignty—before receiving the relief to which they are likely entitled.
Two days later, Judge Talwani lifted her prior injunction in light of the Supreme Court’s ruling, but invited the plaintiffs to file an amended complaint now that the rule has been finalized. Which they did within hours, along with a second motion for TRO. The very next day, that motion was granted and the injunction was back on.
Which brings us to this weekend. The government filed an immediate notice of appeal to the First Circuit and asked Judge Talwani to stay her own order while that appeal plays out.
DOJ describes the rule as nothing more than routine housekeeping: “This is ultimately a regulation of the U.S. mail, and a modest one at that—not a federal takeover of election administration by the Postal Service.”
They argue that the post office does too have authority to interdict ballots under 39 U.S.C. § 404(a)(1), which grants it responsibility “for the disposition of undeliverable mail.” Of course, these ballots aren’t “undeliverable” — Trump just ordered the Post Office not to deliver them unless states allow him to seize control of local elections.
The government adds that it has authority to impose tracking regulations on deliveries which are “both sensitive and non-dangerous.”
“Although ballot mail does not present the same operational issues as cremated remains or replica explosives, it is sensitive mail that raises unique and important operational considerations,” they huff, without explaining what interest the federal government has in policing those considerations.
The DOJ’s arguments about irreparable harm are even more screamingly disingenuous. The government delayed this case for months by claiming the harms were speculative, but now says it’s too late for relief.
Two weeks before USPS issued the final rule, DOJ told Judge Talwani that courts could sweep in and supply full relief if that rule ever harmed a voter. Days before the rule dropped, DOJ said plaintiffs could simply amend their complaint once the rule was finalized. Now that the plaintiffs have done exactly that, DOJ says they waited too long, because appellate review “would come too late for the 2026 midterms.”
Obviously, the only solution is to let them continue breaking the law through November!
DOJ and the eleven intervenor states filed their motions to stay late Friday evening. Neither asked for expedited briefing, even though both insist North Carolina and Alabama’s mailing deadlines — September 4 and September 9 respectively — mean every day counts. But even they can’t guarantee that this scheme could feasibly be implemented before the November 3 election.
Missouri Secretary of State Denny Hoskins submitted a bare bones affidavit attesting that “The temporary injunction threatens imminent irreparable harm to Missouri’s elections because it would likely bar Missouri from fully complying with the Rule—and benefitting from the increase in security to mail voting it would guarantee—during the 2026 General Election.”
That’s not what irreparable harm means. But even Hoskins couldn’t guarantee that it would go off without a hitch: “Although my staff are still figuring out some details of implementation, I believe it is possible to implement this rule for the 2026 General Election.”
Back in D.C., the plaintiffs went back to Judge Nichols with a renewed motion for injunctive relief, and they’re quite clear on those “details of implementation.” As the USPS’s own factfinding sets out:
Scanning a barcode generally takes less than a minute per mailpiece. Depending on how many barcodes are scanned, the verification process should take no more than a few hours for larger mailings, and potentially only a few minutes for smaller mailings. Authorized Ballot Mailers should remain at the BMEU [Business Mail Entry Unit] or postal retail location during the verification process.
So by the government’s own math, the ballot-scanning process will be so cumbersome that election officials will be effectively stranded at the post office waiting indefinitely for someone from USPS to scan their mail-ballots. As the DC plaintiffs note in their motion, this makes the proposed vote scheme wholly infeasible.:
For example, Maricopa County, Arizona is expected to mail more than 2.6 million outbound mailpieces as part of its first mailing of ballots for the 2026 general election. If it takes USPS one minute to scan each of the 2.6 million mailpieces, the Maricopa County Recorder will have to remain at the BMEU continuously for nearly 5 years. If 30 seconds per mail piece, 2.5 years. If one second, 30 days. And if a tenth of a second, it would still take 72 hours.
This is the same Postal Service that lost $9 billion last fiscal year and has suspended required pension payments, being asked to stand up a nationwide voter-enrollment portal from scratch, untested, in under six weeks. But nothing matters until the six conservative justices get a chance to weigh in.
Relatedly …
DSCC v. Trump [Docket via Court Listener]
League of Women Voters v. Trump [Docket via Court Listener]
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
