After the Supreme Court made a (purely procedural)
decision about Trump’s executive order on mail-in voting, rejecting judicial
action in the case brought by blue state AGs because it wasn’t “ripe” for a
decision yet, Judge Indira Talwani did the logical thing. She gave the
plaintiffs in that case and in the case brought by the League of Women Voters a
push toward updating their lawsuits. The government showed off the final rule
it wants to use to implement the executive order. The ripeness argument is now
moot. The administration zeroed it out when the Postal Service announced its
final rule was ready to publish. The rule was published on Wednesday.
Both groups of plaintiffs with cases before Judge Talwani
refiled and asked for preliminary injunctive relief, also requesting that the
court issue a temporary restraining order (TRO) to stay the government
defendants’ implementation of the Final Rule. Quick reminder: a TRO is the
shorter, emergency type of injunction. A preliminary injunction stays in place
for a longer period of time, while litigation is happening. (Plaintiffs in
related cases in the District of Columbia took steps to update their cases too.)
Thursday night, Judge Talwani granted a 14-day temporary
restraining order in both of the cases before her, “staying the United States
Postal Service (‘USPS’) from implementing certain sections of its final rule,
Ballot Mail for Federal Elections.”
She explained that “On emergency review, on
August 24, 2026, the United States Supreme Court concluded that this court
lacked jurisdiction to review challenges to the EO’s constitutionality where it
was speculative as to whether the USPS would (1) propose a rule; (2) weigh the
comments; and (3) issue a final rule consistent with the EO’s
directives”—that’s the “ripeness” argument we’ve been discussing for weeks now.
In essence, the Supreme Court directed her that the government hadn’t taken
enough steps toward implementing Trump’s EO for the court to know what that
implementation would look like and whether it was lawful. Too soon, the Supreme
Court told Judge Talwani. You need to wait for the government to do more.
Now, the government has done more.
As we all know by now, the footnotes are frequently where
the action is. This decision was no exception. In Footnote 4, Judge Talwani
takes on a perplexing omission from the Supreme Court’s opinion: Their failure
to discuss or even acknowledge that the Postal Service had announced its final
rule. Judge Talwani explained it for them like this, which has the
not-so-coincidental benefit of further strengthening her decision to reimpose
an injunction against the executive order, because she’s set up a situation
where they didn’t have all of the facts she had when they ruled:
The Supreme Court gave no indication that it was aware of
the Final Rule when the Order was issued. Defendants nonetheless insist,
without citation, that “publication of a Final Rule” was “already known to the
Supreme Court” at the time of the Court’s Order …
Although the government’s
Supplemental Brief regarding the Final Rule was docketed at the Supreme Court a
few hours before the Court’s per curiam Order was entered on
August 24, 2026 … this court cannot assume that the Justices received the brief
prior to the issuance of the per curiam Order a few hours
later.
In any event, that Order found a lack of standing based on the events at
the time the complaint was filed and did not purport to take into account
events that occurred during the months that the litigation was pending.
Judge Talwani also strengthens her order for when it
heads back to the Supreme Court by pointing to the purely procedural nature of
the Court’s decision last week. Their decision was limited to timing; it was
not about whether the executive order itself is lawful. By setting it up this
way, the Judge clarifies that she is free, now, to take up the substantive
issue.
She wrote, “The Supreme Court explicitly noted, however, that the
disposition of the government’s emergency application ‘does not mean that any
measure taken by the Government to implement the Order will necessarily be
lawful.’” By pointing out that the Supreme Court itself left that issue open,
she positions the new TRO as the next step in the case, not a decision contrary
to the Court’s dictates (although we should expect the government to try to
play it that way).
Judge Talwani also took a gentle, but satisfying slap at
the Court, pointing out that the Trump administration isn’t exactly playing by
the rules when it comes to court orders: “Although the Supreme Court expressed
concern that this court’s injunction ‘prevent[ed] the Postal Service from so
much as initiating a rulemaking that could yield a rule applicable to these
States[,]’ … no such delay occurred, as the USPS had gone ahead and noticed a
proposed rule, solicited and reviewed comments, and issued a Final Rule.”
The
Roberts Court has largely ignored the Trump administration’s efforts to
challenge the authority of the courts, but occasionally, it bristles and
summons some backbone when the administration goes too far—think last term’s
decision on birthright citizenship or firing a Fed Governor. This opinion is a
signal to the Court that this case too is one where the government must be
reined in, lest the Court lose all authority to act as a check and balance on
an out-of-control executive.
With the background laid out, we hit a critical juncture
in the Judge’s decision. Here’s the most important thing to understand: the
government defendants, who just days ago were arguing that the plaintiffs’ case
wasn’t ripe for the court to decide, are now arguing that it’s too late for the
court to intervene. Yes, you read that right. Too early has now
become too late, with no Goldilocks spot in the middle. So much for the
“justice” in Justice Department.
Here’s how Judge Talwani explains it. It’s worth reading
her full layout:
“Two weeks before the Final Rule issued, Defendants’
counsel represented to the court that: when the final rule is implemented, if
it affects an individual voter’s ability to vote, then they certainly have
standing to challenge that final rule. And courts are able to work in an
expedited basis. It would only take a very short amount of time for a temporary
restraining order or a preliminary injunction to issue.”
“And two days ago, when Defendants asked the court to
vacate the preliminary injunction entered in LWVM prior to the Supreme Court’s
Order, Defendants represented that Plaintiffs were not without a remedy, for
where the Rule had now issued, they could ‘simply amend their complaint’ and
challenge the Final Rule directly.”
“Defendants [the Trump administration] now claim that
Plaintiffs are too late ‘because appellate review in the ordinary course would
come too late for the 2026 midterms.’”
The Judge goes on to explain the technical reason the
government is wrong on that last point. It’s because “the question is not when
appellate review will be completed. The issue before the court is whether
Plaintiffs have met the traditional standards for emergency relief.”
But the
thing that really matters here is that the courts should not permit the Trump
law firm formerly known as the Justice Department to play gotcha when it comes
to something as important as Americans’ right to vote. DOJ’s position is
nothing short of appalling. And predictable, unfortunately, for this
administration.
Temporary restraining orders preserve the status quo
until courts reach a decision on the substance of cases before them. Judge
Talwani’s order preserves the pre-executive order status quo, for now. To issue
a TRO, she has to find in the movants’ favor on the elements courts have
established for entering an injunction: a strong chance of success on the
merits, irreparable injury in the absence of the remedy, and public interest/a
balance of the equities favoring the injunctive relief.
So, for starters, she has
to be persuaded that the plaintiffs have a good chance of succeeding with their
claims. They now argue that the newly issued final rule “is unconstitutional,
contrary to statute, and ultra vires,” and that it “violates both the
separation of powers doctrine and the USPS’s governing statutes.” The
government responds that it’s just doing what is necessary to implement the
executive order and the final rule “merely imposes modest conditions on the
sending of mail.” Seriously. That’s what they say. They add in an argument that
none of the plaintiffs have standing.
The Judge pushes the weak standing argument aside. As to
the government’s claim it’s taking innocuous action to support the president’s
order, she reminds them that “As to the substantive merits, the Constitution
charges the States with election administration … the court is unaware of, and
no party has proffered, any delegation Congress has made that would permit the
USPS to regulate election mail.”
Judge Talwani concludes, “Through the Final Rule, the
USPS is refusing to send mail ballots to eligible voters unless States or local
election officials submit their mail ballot envelopes and return envelopes and
receive advance approval from the USPS without regard to impending deadlines
for the November 3, 2026 election …
Additionally, the Final Rule requires
elections officials to create accounts for a new electronic portal, certify
that they have received approval regarding the mail ballot design, and thereafter
upload to the USPS portal each voter’s information, including name, address,
and a unique intelligent mail barcode.” She rules that the plaintiffs are
“likely to succeed on the merits of their claims that (1) the USPS lacked
authority to issue the Final Rule; (2) the Final Rule is unconstitutional in
imposing these requirements on the States; and (3) the Final Rule is
unconstitutional in prohibiting non-compliant State and local officials from
using the United States Postal Service to mail ballots.”
The likelihood of success argument is the heavy lifting
here. The irreparable injury is practically self-proving when it comes to the
risk that people will be disenfranchised, denied the right to vote. But Judge
Talwani makes it plain, ruling that “Plaintiff States face irreparable harm
where they are required to comply with a likely unconstitutional regulation for
which compliance is practically impossible as to the 2026 midterm elections,
now little more than two months away.” She offers specific examples:
Most Plaintiff States have already ordered their mail
ballots. Some are required by state law to send them to eligible
voters as early as next week. Plaintiff States have neither time nor funds to design
new mail ballots, seek approval of the new designs, order production of mail
ballots, update their own election management systems, train election officials
to use the USPS portal, and upload citizen data to the portal, all before the
midterms.
The Final Rule includes no deadline or contemplated
turn-around time for USPS approval of submitted mail ballot envelopes. If Plaintiff States are unable to comply with the Final
Rule, an outcome that seems unavoidable given the timeframe, they will violate
their obligations under the Constitution and State laws to administer
elections.
The bottom line here is so grotesque that it’s impossible
to imagine any other Justice Department advocating for such a plan, and any
court taking longer than a few moments to reject it, as Judge Talwani did
today. She notes that the government defendants “offer no reply to Plaintiff
States’ assertion that compliance for the 2026 midterm elections will be
impossible for many of them.”
And what’s at stake is the right of Americans to
vote. She notes the “significant risk of disenfranchisement” and finds that “In
light of the State election officials’ unrebutted declarations that compliance
with the Final Rule at this late date is impossible, the risk of irreparable
harm to voters in those jurisdictions is grave.”
As for the
League of Women Voters, their members face irreparable harm for the same
reasons—because they live in states that will be unable to comply with these
new measures, and so, their ballots will not count.
This is another key point we should all note. Why won’t
the ballots count? It’s not because the voters involved aren’t eligible to
vote. They are. It’s not because they’ve done anything wrong—failed to register
or vote in a timely fashion. They haven’t.
Americans will be disenfranchised
because Donald Trump does not want them to vote. No legal sleight of hand can
legitimize that. It’s an appalling abuse for an American president,
especially one who spends so much time ranting about virtually non-existent
voter fraud, when his intent is to keep eligible voters from exercising their
rights.
The only thing that remains for the Judge to assess after
this is the balance of harms and the public interest. “The record continues to
lack any evidence regarding fraudulent absentee or mail-in voting,” she begins.
Then she drives an industrial strength nail into the administration’s coffin and lays down something of a gauntlet to the Supreme Court, just in case it
wants to contemplate reversing her again:
“In any event, the USPS’s interest in
correcting an unsubstantiated problem through likely unconstitutional means is
dwarfed by the overwhelming risk of pervasive disenfranchisement of citizens
who need access to mail ballots in order to vote. The balance of harms and
public interest warrant a TRO.”
And so, Judge Talwani grants a temporary restraining
order, explicitly forbidding the government from taking additional steps
towards implementing specified parts of its final rule for the next 14 days
(she is still considering the request for a longer preliminary injunction). The
final rule can’t be implemented. It can’t be enforced. The Trump administration
can’t take “further preparatory steps” toward putting it into operation.
And
she gives it some teeth, requiring that the government “must” within a day of
receiving the order, “provide written notice of this Order to the USPS
Defendants and their employees” and “notify all such recipients that they are
required to comply with this Order, under penalty of contempt.” District Judges
have become wise to this administration’s tricks. Judge Talwani is playing for
keeps here. There will be no excuses, only contempt if the government violates
her order.
Will the Supreme Court permit the administration to throw
the upcoming elections into confusion and disenfranchise broad swaths of
voters? John Roberts probably doesn’t want that to be his legacy; it’s already
tarnished enough. The easy out for the Court will be blocking the measure for
the 2026 elections but allowing it to move forward for 2028. This will not be
over any time soon.
We’ve now reached the point in this case where the
lawfulness—or not—of what Trump wants to do to our elections takes center
stage. The case will go back to the Supreme Court and the Court will have to
decide whether the Constitution, which clearly leaves this bit of election
administration up to the states, still matters. Will the Roberts Court decide
to undo 250 years of American democracy? Are there five votes left for the rule
of law? One hopes that even on this court, a majority, however slender, that will
do the right thing exists.
This is the hard work we do here at Civil
Discourse. I hope you’ll share this piece widely, because it matters,
and this sort of insight into a judicial decision isn’t something you’ll get
from the headlines. Thanks to those of you whose support means I have the time
and resources to write a piece like this. For those of you who aren’t already
paid subscribers, it’s a good day to join us.
We’re in this together,
Joyce Vance
