The Department of Justice asked a federal appeals court Friday to throw out a 14-day restraining order that a Massachusetts judge issued a day earlier blocking the U.S. Postal Service from implementing President Trump's mail-voting executive order — the second time this month the same judge has stopped the same policy. [1]
U.S. District Judge Indira Talwani granted the temporary restraining order Thursday to a coalition of Democratic-led states, finding the administration could point to no statute authorizing either Trump's order or the USPS rule carrying it out. [1] That order followed directly from this paper's Wednesday account of Talwani's first block-and-lift sequence, in which she found the administration had violated her original injunction, then lifted that same injunction a day later after the Supreme Court ruled the states had sued too early. The gap the paper flagged then — a violation finding with no enforceable remedy — has now closed. USPS finalized its rule days later, giving Talwani a final policy to block outright.
TROs are rarely appealable; courts have generally required a defendant show "irreparable harm" before an appellate panel will even hear one. [1] DOJ's Friday filing argues Talwani's order functions like a preliminary injunction in substance, and that further delay itself constitutes harm to the government's timeline. Talwani had granted the TRO specifically to buy time to weigh a full preliminary injunction, with a hearing scheduled for next Thursday — a step most observers expect her to grant, given that she has now issued three separate orders against the same executive order. [1]
The rule at issue requires state election offices to use barcode-equipped envelopes that USPS must preapprove, and to submit lists of eligible mail voters to a federal portal in advance; ballots for voters missing from that list would not be delivered. [1] Talwani wrote that "the risk of irreparable harm to voters" in states where compliance is "practically impossible" at this late date is "grave," pointing to unrebutted declarations from state election officials. [1] Washington, Oregon, Hawaii, Colorado and Utah each run elections in which more than 90 percent of ballots are cast by mail — states where a refusal to process ballot envelopes would functionally cancel the vote. [1] Washington Secretary of State Steve Hobbs called the TRO "important relief" when it landed.
DOJ's appeal lands roughly three weeks before federal law requires officials to begin mailing ballots to military and overseas voters, and days after DOJ lawyers separately asked a different judge, in a parallel Washington lawsuit, to slow that case's schedule rather than speed it up. [1] Election-law scholar Rick Hasen called that combination — pushing for delay in one court while arguing urgency justifies appeal in another — evidence of "timing games" designed to run out the legal clock before Election Day rather than resolve the rule's legality. [1] Justice Ketanji Brown Jackson made a similar accusation in her dissent from Monday's Supreme Court ruling, writing that "sowing chaos is the Government's ultimate goal." [1] David Becker, executive director of the Center for Election Innovation & Research, put the practical deadline bluntly: "When does it become too late to implement this executive order? The answer was many months ago." [1]
USPS, for its part, still has not said when the federal portal states need to submit voter data through will actually go live. [1] North Carolina submitted its ballot envelope designs for approval anyway this week, even as it continues fighting the rule in court — a bet that compliance and litigation are not mutually exclusive with ten weeks left before Election Day.
-- SAMUEL CRANE, Washington