The Trump administration's effort to implement new United States Postal Service (USPS) requirements for mail-in ballots ahead of the November midterms hit another roadblock Thursday, as a unanimous federal appeals court refused to lift the preliminary injunction blocking mandatory enforcement of the rule while the case is appealed.
On Thursday, a 1st Circuit Court of Appeals panel (consisting of Judges Gustavo Gelpi, Julie Rikelman, and Seth Aframe, all Biden appointees) denied the Trump administration's request to stay Judge Indira Talwani's preliminary injunction, meaning the injunction remains in effect while the appeal proceeds.
To review:
- Trump's election-integrity executive order directed USPS to develop new requirements for ballot mail.
- Plaintiffs initially challenged the policy before USPS issued its final rule.
- Talwani issued a preliminary injunction.
- That was quickly appealed up the chain, and the U.S. Supreme Court stayed that earlier injunction, essentially saying the challenge was premature because courts ordinarily review final agency action (which hadn't yet occurred).
- Meanwhile, USPS finalized the rule two days before SCOTUS issued its stay.
- Plaintiffs returned to court challenging the actual final rule.
- Talwani issued a new preliminary injunction on September 4, blocking mandatory enforcement for November.
- The administration appealed and asked the 1st Circuit to stay her injunction.
The new rule requires, among other things:
- voter-specific Intelligent Mail barcodes on outgoing and return ballot envelopes;
- matching those barcodes to information uploaded to a USPS database;
- USPS approval of ballot-envelope designs;
- election officials to upload voter-specific information through a USPS portal (which the 1st Circuit points out still isn't operational).
The key point is that ballots that don't satisfy the requirements could be prevented from being delivered to voters.
The Elections Clause gives authority over the manner of congressional elections to the states, subject to alteration by Congress. In its decision, the 1st Circuit says USPS's rule looks very much like an election regulation, not merely a postal regulation
The title of the Final Rule is "Ballot Mail for Federal Elections," and the Final Rule explicitly and exclusively regulates election mail. 91 Fed. Reg. at 54966, 54990-92. It requires action by the States' "chief election official[s]" and its policy justification is "protect[ing] the integrity of federal elections." Id. at 54968-69; see also id. at 54966, 54976 (citing Exec. Order No. 14399, titled "Ensuring Citizenship Verification and Integrity in Federal Elections," as the source of the policy goals justifying the Final Rule). In short, the Final Rule targets election-related mail in a manner that affects the States' management of elections, and the Final Rule's asserted purpose relates to election integrity. To label this Final Rule as merely a "modest" regulation of the mails is to focus on the trees while ignoring the forest.
The court also points to a congressional-authorization problem, expressing skepticism that Congress delegated this kind of authority through broad postal-management statutes.
The 1st Circuit backs Talwani's findings that implementing this now could create chaos:
- some states couldn't obtain/reprint compliant envelopes in time;
- USPS approval itself could cause delays;
- the portal isn't operating;
- USPS would need to scan and match tens of millions of ballots.
And, importantly, there was no contrary record evidence undermining those findings.
Ultimately, the panel reasons that implementation could result in disenfranchisement of “millions of voters across the country” for “minimal — if any — gains in combating voter fraud.”
To be clear, this ruling does not find the USPS rule unconstitutional. Thursday's order is not a final decision on the constitutionality of the rule. The 1st Circuit was merely deciding whether Talwani's injunction should remain in place while the appeal proceeds. But in order to decide that, the panel assessed the likelihood of success — and it expressly agreed with Talwani that the rule likely regulates elections in a manner constitutionally assigned to states and Congress.
One other note: States may opt to voluntarily comply with the rule, and the USPS may continue preparing the system for post-November elections. Mandatory implementation for November, however, remains blocked.
The administration has already turned to the Supreme Court for emergency relief, with a stay application now pending before the Court. This time, however, the case arrives in a markedly different posture from the one SCOTUS confronted just a few weeks ago: USPS has now issued its final rule, and both the district court and a unanimous 1st Circuit panel have concluded that the challengers are likely to succeed in showing that the rule is unconstitutional.
Editor's Note: This article was updated post-publication for clarity.