Trump-appointed judge freezes USPS mail-ballot rule for November

U.S. District Judge Carl J. Nichols in Washington issued a preliminary injunction late Sunday that stops the United States Postal Service from applying its 21 August mail-ballot rule to the 3 November midterms. The case is DSCC v. Trump, 26-cv-1114, in the District of Columbia. Nichols is a Trump appointee. In May he had refused to freeze the plan because the Postal Service had not yet issued a final rule. It did so on 21 August, with some accounts dating the publication to 27 August. The plaintiffs came back. This time he granted the hold.

The rule grew out of the 31 March executive order titled Ensuring Citizenship Verification and Integrity in Federal Elections. Under the final text, states would send the Postal Service a list of eligible absentee voters. The service would then deliver ballots only to names on that list, and only in envelopes whose design it had approved. Election officials in several states said they could not rebuild their mail systems on that timetable. Early ballots have already gone out in some jurisdictions.

Nichols wrote a 24-page opinion. He found that the Postal Service lacked statutory authority for the parts of the rule that decide who may receive a ballot. "As the government concedes, the Postal Service could issue (and enforce) the Rule only if Congress gave it the authority to do so, but here no statute grants the Postal Service the power to issue key parts of the Rule," he wrote. He also wrote that the government "does not point to any record evidence that there will be significant fraud in the upcoming elections" if the rule stays frozen. The plaintiffs, including the Democratic Senatorial Campaign Committee and civil rights groups, had shown "an increased risk that a significant number of otherwise appropriate absentee or mail-in ballots will ultimately not be counted."

He cited Purcell v. Gonzalez (2006) for the public interest in leaving election mechanics alone close to a vote. The short gap between the final rule and November, he said, "cuts strongly in favor of preliminary injunctive relief." Unlike the earlier Boston order from Judge Indira Talwani, an Obama appointee, Nichols blocked the rule in full. Talwani's narrower freeze is already before the Supreme Court on an administration emergency request. The justices have not acted. A three-judge appellate panel had left her stay in place.

The practical effect of two overlapping injunctions is that county clerks can keep using the envelopes and voter files they already have. That is the status the plaintiffs wanted. The Justice Department can appeal Nichols as it appealed Talwani. Even a fast Supreme Court order would land after many states have mailed ballots. Republicans hold a slim majority in Congress. Mail voting is large enough in several competitive states that a late change in delivery rules would have moved counts, or at least moved the litigation into November.

Trump has argued since 2020 that mail ballots are open to fraud. Nichols treated that as a claim that needed a record. The record, as he described it, did not show the fraud the rule was written to stop. What it did show was a federal agency writing eligibility rules that Congress had left with the states. That statutory point is the part of the opinion most likely to survive if the Supreme Court takes the Boston case first and this one second.

For election administrators the next 50 days now look like the calendar they had in August, before the Postal Service published the rule. For the White House the path runs through the justices. Nichols has told them, in a case that carries his own appointment in the caption, that the Postal Service cannot decide the electorate by regulation.