Justice Department asks the Supreme Court again to free a USPS mail-ballot rule

The Justice Department returned to the Supreme Court on 3 September with an emergency request to lift a Boston judge's freeze on a U.S. Postal Service rule that would change how states send mail ballots. Solicitor General D. John Sauer told the justices that U.S. District Judge Indira Talwani's temporary restraining order "partially nullifies" the Postal Service's effort to keep the mails from being used for voter fraud. North Carolina was scheduled to start sending ballots the next morning.

Talwani issued the 14-day order on 27 August. She found that the rule likely collides with the Constitution's assignment of election administration to the states and that states could not comply before the midterms. The freeze covers the District of Columbia and the 23 states that sued. It is set to lapse around 10 to 14 September, depending on the count. Alabama's mailing deadline also falls inside that window.

The rule, adopted after President Donald Trump's March executive order on elections, has two operational pieces. States and localities would have to submit names, addresses and unique ballot barcodes to a Postal Service portal. Envelopes would have to meet a uniform design. Ballots that do not match could be refused in the mailstream. Sauer described those as "modest envelope-design and addressee-information requirements" and said the rule regulates the mail, not elections.

More than 20 Democratic-led states and civil rights groups say the portal and the refusal power would confuse clerks and strand lawful ballots. They also say the computer system behind the portal was still not shown to be working when the administration's lawyers appeared before Talwani on 3 September. The administration filed at the Supreme Court the same afternoon, after the First Circuit declined to stay her order.

This is the second trip to the justices on the same cluster of policies. Last week the court voted 6-3 to lift a broader injunction Talwani had issued against parts of the March executive order. That unsigned emergency order let the administration proceed while the legality stayed open. It did not decide the Postal Service rule now in front of the court. Justice Ketanji Brown Jackson, who handles First Circuit emergencies, set 8 September as the deadline for the plaintiffs' response. A decision before mid-next week is therefore unlikely.

Sauer argued that once ballot envelopes enter the mail there is "no retrieving them." Two states, North Carolina and Alabama, sit on the near edge of that problem. At least two Wisconsin municipalities had already mailed ballots. The government asked for an administrative stay as well as a stay pending appeal, the standard pairing when the calendar is shorter than the briefing.

The legal oddity is the vehicle. Temporary restraining orders are not usually appealable. The Justice Department appealed anyway, first to the First Circuit and then to the Supreme Court, on the ground that Talwani's order functions as an injunction and causes irreparable harm. Twelve states led by Alabama had earlier sided with the administration on the executive order. They are not the named applicants on this filing. The applicant is the United States.

Trump has framed the Postal Service changes as anti-fraud architecture. The challengers frame them as a federal gate on a state function, built too late for clerks to rebuild envelopes and lists. Both descriptions can be tested only if the rule actually runs. Talwani's order keeps it from running in the suing states through the middle of September. Sauer wants that pause lifted before Friday's North Carolina drop and before the rest of the mid-September wave.

Nothing in the new application asks the court to decide the merits of mail-in voting as a practice. It asks the court to let a federal agency impose design and data conditions on election mail during an election already underway. Whether that is a mail rule or an election rule is the question Talwani answered one way and Sauer wants answered the other, on a clock measured in hours rather than terms.