Today, the First Circuit Court of Appeals affirmed Judge Talwani’s injunction that prevents the administration, at least for the midterm elections, from putting its plans to interfere with mail voting into effect. That’s good news.
The Court wrote, “The US Postal Service is not the gatekeeper for mail ballots. It does not have that authority. And it cannot usurp election authority from the states and Congress.” You can just as easily insert “Donald Trump” into the first sentence as “US Postal Service,” because that’s what this is about. The Court hammered the point home, “This decision rightly keeps in place an order blocking USPS from enforcing its disruptive and disenfranchising rule through the November election and preserves the current system, which has worked safely, securely, and reliably for decades.” You can read the full opinion here. The Supreme Court will have the final say. It would do well to heed the practice it has followed in thousands of cases involving injunctions, where the status quo is preserved while litigation proceeds in cases where disrupting it would do irreparable harm. If making it more difficult for Americans to vote, let alone preventing people from voting at all, isn’t irreparable damage, then it’s hard to imagine what is. The First Circuit’s opinion included a succinct explanation of the changes to mail voting the USPS’ final rule would impose:
And, of course, all of that would have to be in place, not just in time for the formal election day on November 3, but even now, as states are already required by their laws to begin sending out mail ballots. Just reading what states must actually do to comply with the Trump administration’s policy renders it patently obvious that it cannot be done, and that any effort to require states to comply would result in massive disenfranchisement of Americans. And for what purpose? We should always remember the context—Trump is doing this because of baseless claims that noncitizens are voting by mail. He is not protecting elections; he would be interfering with the most fundamental right we possess as Americans, the right to vote and choose our elected officials, the people who represent us. The Court of Appeals noted, “there is no record evidence of past fraud or a likelihood of impending fraud related to the November 3 election.” The government’s strategy seems to be focused on an attempt to convince the Supreme Court that the injunction Judge Talwani entered is too broad. It’s a bit of a nuanced argument that has to do with standing. Plaintiffs must have standing in order to be able to sue. Here, the government is advancing a theory that the League of Women Voters has limited “organizational standing” and the relief the Judge ordered in their favor exceeds what a party with their standing is entitled to. The Court of Appeals explained that “To establish organizational standing, a plaintiff ‘must show [injury] 'far more than simply a setback to the organization's abstract social interests.’” After offering some examples of cases where organizations lacked standing to sue, the Court concluded, “A plaintiff can establish organizational standing, however, by alleging that the challenged actions ‘directly affected and interfered with [the plaintiff's] core business activities’ beyond issue-advocacy -- if, for instance, the challenged actions ‘perceptibly impair[]’ a housing nonprofit's counseling and referral services.” The Court put the damage the administration’s new rule would do squarely in the heartland of that doctrine, explaining that “it interferes with the provision of their core services: conducting voter-registration drives; translating election-related materials; and educating the public on how to vote, including by mail. The district court specifically found -- based on the unrebutted declarations submitted by the appellee organizations -- that ‘[t]he chaos engendered by the Final Rule's immediate deadlines is significantly interfering with [the appellee organizations'] mission to provide [their] members with accurate and reliable information about how to vote, including by mail,’ such that the appellee organizations ‘do not know whether to advise their members to vote by mail, despite legal entitlement, due to the high risk of disenfranchisement.’” How did the government respond to these arguments when it briefed them for the Court? It tried to sidestep them entirely. The opinion explains that “Appellants [the Trump administration] do not address these findings in their briefs. Instead, they attempt to cast the appellee organizations’ activities as ‘merely engaging in public advocacy and public education regarding governmental action.’” But the First Circuit doesn’t buy that, and in a footnote that seems designed to convince the Supreme Court they’re correct, they focus on how narrow the injunction is, because it “does not bar voluntary compliance by States with the Final Rule; nor does it prohibit the Postal Service from continuing with the Final Rule's implementation for elections after November 2026, including by creating the portal and training staff on the Final Rule's requirements.” The table is set for the Supreme Court. But there’s one final pleading worth noting. Wednesday night, a bipartisan group of 38 current and former election officials filed a brief with the Supreme Court, urging it to block the new rule from taking effect for the midterm elections. The amici include officials from 10 states, the Missouri Association of County Clerks and Elections Authorities, and a group that advocates for free and fair elections. Their brief points out that “Several were elected to their offices on the Republican line, and several serve in Republican majority jurisdictions.” It’s a powerful brief that should hold sway with the Supreme Court. The table of contents lays out the argument: It is simply not possible to implement major changes so close to the election without throwing the process into chaos.
When considering today’s ruling in combination with the amicus brief filed to alert the Court to the whistleblower allegations we discussed last week—which exposed the inadequacy of the process USPS used to create the portal that is essential for the new plan to work—it’s clear that no matter how much the administration wants to do this, even if its plans were lawful (they aren’t), they are simply unworkable on this timeline. There is every reason for the Supreme Court to affirm Judge Talwani’s order and keep the status quo in place for this November. The government can still have its day in court on what comes after this election is over. Thanks for being here with me at Civil Discourse. Your subscriptions make the newsletter possible. Your commitment to the practice of civil discourse and understanding how our system of government is supposed to work makes democracy possible. We’re in this together, Joyce You're currently a free subscriber to Civil Discourse with Joyce Vance . For the full experience, upgrade your subscription.
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