Trump Admin Asks Supreme Court to Lift Boston Judge’s Block on Mail-Ballot Rules as Ballots Start Going Out

The Justice Department asked the Supreme Court on Thursday to freeze U.S. District Judge Indira Talwani’s temporary restraining order on a U.S. Postal Service rule for federal mail ballots. Solicitor General D. John Sauer told the justices the Aug. 27 order “partially nullifies the Postal Service’s efforts to address the risk that the federal mails will be used to perpetrate voter fraud.” He also asked for an immediate administrative stay. Justice Ketanji Brown Jackson, the circuit justice for the First Circuit, set a 10 a.m. Sept. 8 deadline for the challengers to respond and did not grant the administrative stay. The TRO runs through Sept. 10 unless Talwani replaces it with a longer injunction. The First Circuit has not yet ruled on the government’s stay request there.

The Postal Service published the final rule on Aug. 26 after President Trump’s March executive order on election integrity. It requires states and localities that use USPS for federal absentee and mail ballots to upload names, addresses, and unique barcodes for eligible mail voters to a USPS portal and to use specified envelope designs. The rule says USPS may refuse to deliver ballot mail that does not comply. Sauer wrote that North Carolina and Alabama “will begin sending ballots to voters, the first as soon as September 4. Once those ballot envelopes enter the mailstream, there is no retrieving them.” CBS reported that some Wisconsin municipalities had already mailed ballots and that more states follow in mid-September. Federal law requires overseas and military ballots 45 days before Election Day.

Talwani, an Obama appointee in Boston, held a two-hour hearing Thursday on whether to convert the TRO into a preliminary injunction covering the Nov. 3 midterms in 23 states and the District of Columbia. She did not rule from the bench. She asked Justice Department attorney Michael Velchik whether the portal was operational and said she had “nothing from USPS telling me how this will happen” 70 days before the election. She has written that the rule is “likely unconstitutional,” that compliance before November is “practically impossible,” and that states lack time and money to redesign envelopes, reprogram systems, train clerks, and upload lists. Challengers include Democratic attorneys general and voting-rights groups. Twelve Republican-led states, including Alabama, have backed the administration. Velchik told the court the core question is whether the statute authorizes the Postal Service to set those conditions.

This is the administration’s second trip to the Court on the mail-ballot fight. On Aug. 24 the Court, 6–3, lifted Talwani’s earlier nationwide injunction because the states had sued before the Postal Service finalized a rule. The majority left the merits open and said states could challenge a finished regulation. Justices Sonia Sotomayor, Elena Kagan, and Jackson dissented. USPS published the final rule three days before that order. Talwani then issued the new 14-day TRO on Aug. 27. A ruling after the Sept. 8 briefing is unlikely before mid-next week. Parallel to the case, the House-passed SAVE America Act — photo ID, documentary proof of citizenship, and limits on no-excuse mail ballots — remains stalled in the Senate, which Trump has pressed Majority Leader John Thune to move before the midterms.