Second U.S. judge freezes Trump mail-ballot rule as midterms near

U.S. District Judge Carl J. Nichols in Washington ordered the Postal Service late Sunday not to apply President Donald Trump's mail-ballot restriction. The rule was issued on 21 August. Nichols wrote that without an injunction there was an increased risk that a significant number of otherwise valid absentee or mail-in ballots would not be counted in the coming elections.

The order adds a second freeze on top of the one issued by Judge Indira Talwani in Boston. The Supreme Court is already considering the administration's appeal of Talwani's ban. Midterm Election Day is 3 November. Some states have already started sending ballots. North Carolina was first.

Nichols is a Trump nominee. Talwani is an Obama nominee. The split in appointing presidents did not produce a split in outcome this weekend.

How the fight reached two courts

Trump signed an executive order in March that told the Department of Homeland Security and the Social Security Administration to build a national list of confirmed adult citizens. It also told the Postal Service to deliver ballots only to voters on approved state mail-in lists, and to require barcodes and data uploads that many election offices said they could not finish before November.

Talwani blocked core parts of that order in June. She wrote that no statute gives the Postal Service control of mail-in voting and that federal agencies cannot compile complete citizen lists for every state. The Supreme Court later lifted an earlier freeze on the ground that the challenge was premature because the rule had not yet been published.

The Postal Service then published the August 21 rule. Plaintiffs in Boston and Washington refiled. Talwani issued a new hold, first for 14 days and then as a preliminary injunction. She said states could not redesign ballots, retool election systems, train staff and upload data this late in the cycle. Nichols had refused an injunction in May for the same prematurity reason the justices used. Once the rule existed, he granted one.

What the rule would have done

Under the Postal Service plan, a state that did not feed names and barcodes into a federal portal risked undelivered ballots. Election officials in the plaintiff states said they lacked time and money to rebuild envelopes and databases before the statutory mail-out dates. Talwani accepted that claim. Nichols accepted the related claim that valid ballots would go uncounted.

The administration argues that the president may direct a federal agency that carries the mail, and that states which want those ballots delivered can comply with the portal. The states argue that the Elections Clause leaves the time, place and manner of congressional elections to legislatures, with Congress able to alter those rules and the president unable to write them by order.

The calendar is now the constraint

Seven weeks remain until Election Day. Overseas and military ballots move earlier than that. A Supreme Court decision that revived the rule in October would land after millions of envelopes were already printed. A decision that left both injunctions in place would leave November on the state rules that existed in August.

Nichols's Sunday order does not end the case. It keeps the Postal Service on the old procedures while the justices take the Boston appeal. The practical effect for a voter who dropped a ballot in the mail this week is simple. The envelope should still travel under the rules the states were using before 21 August. The legal effect is that two district judges, appointed by different presidents, have now told the same agency the same thing: do not run the new rule through this election.