Tag: voting

  • District Court Halt’s Trump Mail-In Ballot EO, Again

    The same federal district court that earlier enjoined the Trump Administration from enforcing President Trump’s EO on mail-in balloting again halted the Administration.

    The move came yesterday, after the Supreme Court stayed the district court’s original injunction and after the plaintiffs renewed their motions in light of the now-issued USPS regulations.

    The upshot is that the USPS is barred from enforcing its new regulations on mail-in voting. The government already appealed, however, and will almost certainly seek an emergency stay. Ultimately, the case seems destined to return to the Supreme Court, this time probably on the merits.

    Here’s the backstory:

    President Trump issued an executive order that, among other things, directed the Postal Service to issue regulations that specify the design of mail-in-ballot envelopes, require states to report eligible voters to USPS, and refuse to deliver ballots to individuals if the ballots don’t conform to the new design rules or if the individual isn’t on the state-provided list. (The EO also directed DHS to generate a list of eligible voters in each state and to provide that list to the states. That part of the EO isn’t directly at issue in the ruling and filings in the last couple days.)

    States and voting-rights organizations filed two separate lawsuits that landed before the same judge. The court issued preliminary injunctions in both cases, holding, in short, that the EO likely exceeded the President’s authority. (Under the Constitution’s Elections Clause, states, not the federal government, have responsibility in the first instance for running federal elections. If the federal government gets involved, as it can under the Elections Clause, the Constitution gives the authority to Congress, not the President. Because Congress hasn’t authorized anything like the provisions in President Trump’s EO, President Trump and the implementing agencies lack authority.)

    The First Circuit declined to stay the states’ injunction, but the Supreme Court on Monday granted a stay. The Court didn’t rule on the merits, though; instead, it ruled that the states likely lacked standing and that their claims likely weren’t ripe, because they couldn’t demonstrate how the not-yet-finalized USPS regulations would harm them. (The USPS did, in fact, finalize the regulations last Friday, three days before the Court ruled. But the Court assessed standing (and apparently ripeness) at the time of the states’ complaint, not at the time of its ruling.) The district court then lifted its injunction in the organizations’ case.

    In response to the Supreme Court ruling, the states filed a new lawsuit, and the organizations supplemented their complaint to allege cognizable harms and ripeness in light of the now-issued USPS regulations.

    The regulations require states to get USPS approval for their mail-in-ballot envelope design, then, upon approval, to load their voter data into a USPS portal. Under the regs, USPS won’t mail ballots sent in a non-conforming envelope, and it won’t mail ballots to individuals not on the state-uploaded list.

    But there’s no timeline for any of this, and there are a lot of opportunities for mistakes. And because jurisdictions have already printed their envelopes and will start mailing them out shortly, any delay by USPS or any ordered re-design will cost states time and money and interfere with their elections. The regs also create confusion for voting organizations (that seek to educate voters) and voters themselves.

    With those harms now in hand, the court late yesterday issued a temporary restraining order, halting USPS from enforcing its regulations. On the merits, the court said exactly what it said before: the states have authority to regulate federal elections unless preempted by Congress, and Congress hasn’t enacted legislation that authorizes USPS’s regulations.

    The Administration appealed, and will surely seek an emergency stay from the First Circuit and, in all likelihood, the Supreme Court.

    Stay tuned . . . .

  • Supreme Court Green-Lights Trump’s EO on Mail-In Ballots, for now

    The Supreme Court today stayed a lower-court ruling that halted implementation of President Trump’s executive order on mail-in voting.

    The ruling means that the Administration can move to implement the EO. This could have a significant impact on mail-in voting in the upcoming mid-term elections.

    But the ruling was limited to jurisdictional issues and the stay factors; it did not address the EO’s lawfulness. The ruling thus allows state-plaintiffs to sue again if and when the EO harms them. But that potentially raises a different jurisdictional problem: the Court has ruled that courts should not intervene in a way that alters election rules too close to an election, lest they create confusion. Given the timing, this principle–the Purcell principle–could limit the ability of states to sue the closer we come to the election, even if they suffer harm.

    (In a separate case brought by the League of Women Voters, the court earlier this month entered a preliminary halting USPS from initiating rule-making under the EO for the upcoming mid-terms. The Administration filed a motion to reconsider in light of the Supreme Court’s ruling today. The court hasn’t yet ruled.)

    President Trump’s EO comes in three parts. First, it requires the Department of Homeland Security to create a list of citizens over the age of 18 in each state and to send that list to the states. Next, it requires the Attorney General to prioritize prosecution of those who issue federal ballots to ineligible voters. Finally, it requires the Postal Service to initiate rule-making that would require outbound ballot envelopes to contain a unique barcode and not to deliver the ballots of anyone not enrolled by a state with USPS.

    A group of states and D.C. sued, and a district court entered final judgment prohibiting the Administration from implementing those portions of the EO.

    The Supreme Court today granted a stay. On the likelihood of success on the merits, the Court ruled that the states lacked standing, because they haven’t yet demonstrated a concrete and particularized, actual or imminent harm. It also held for similar reasons that the case wasn’t ripe for judicial review. It held that other stay factors also favored the government.

    Justice Sotomayor wrote a dissent, joined by Justice Kagan. Justice Jackson wrote her own dissent.

    It’s not clear what happens next. The Administration may not have time to implement and enforce the EO before the mid-terms. If it does, however, it’s not entirely clear what would happen, that is, how the Administration would actually implement it, including how many mistakes DHS’s list may contain. And if the states can demonstrate harm, it’s not clear whether they could sue to block Administration actions, given the Purcell principle.

    On the merits, the Constitution gives the states in the first instance–not the federal government, and certainly not the President alone–the authority to run and regulate federal elections. According to the lower court (and the law), the President has no legal authority to issue much of the EO. Still, the Court didn’t seem too concerned about overreach, at least not yet, because, according to the Court, the EO limited DHS, the Attorney General, and USPS to act only “[t]o the extent feasible and consistent with applicable law.”

  • District Court Halts Trump EO on Mail-In Voting

    Judge Indira Talwani (D. Mass.) issued a preliminary injunction halting the Postal Service from “implementing, giving effect to, or enforcing” a key portion of President Trump’s executive order on mail-in voting in the upcoming elections. The ruling means that the Postal Service can’t move forward with its regulations that specify the design of mail-in ballots and restrict mail-in voting to voters on a USPS-approved list.

    We previously covered the issue here. Recall that circuits split on standing and ripeness, and the Administration asked the Supreme Court to intervene. (The Court hasn’t yet ruled.)

    The Massachusetts district court previously ruled (in denying a portion of the Administration’s motion to dismiss) that the plaintiffs plausibly alleged that the EO violated the Constitution. Its analysis in the PI ruling was curt and direct:

    The court has already answered and will again resolve the question clearly and affirmatively. The executive branch has no authority to regulate elections. U.S. Const., art. I, sec. 4, cl. 1; id., art. II.

    The ruling deals a sharp blow to the Administration and its efforts to regulate mail-in voting. Even if the Supreme Court intervenes and rules for the Administration in its pending application, the Administration will now have to reckon with this ruling–most likely by seeking a separate stay. As the court says, though: the Administration’s merits arguments are (extraordinarily) weak, and the other PI factors lean (strongly) in the plaintiffs’ favor.

  • Ninth Circuit Allows Arizona Voter Restrictions to Stay on the Books

    The full (en banc) Ninth Circuit ruled on Friday that voter-rights organizations lacked standing to challenge one Arizona election law, and that they were not likely to win in their challenge against another.

    The standing ruling is significant, because it walks-back the Ninth Circuit’s more permissive approach to organizational standing in light of FDA v. Alliance of Hippocratic Medicine. (The Supreme Court held in that case that pro-life medical associations lacked standing to challenge the FDA’s approval of mifepristone–a drug designed to end a pregnancy. The Court rejected the organizational plaintiffs’ theory that they were harmed because the FDA action caused them to conduct their own studies and to expend resources to draft citizen petitions to FDA and to engage in public advocacy.) Moreover, the case illustrates the standing hurdles to pre-enforcement challenges of states’ elections laws, again in light of Alliance for Hippocratic Medicine.

    The case, Arizona Alliance for Retired Americans v. Mayes, challenged two provisions in Arizona’s election law: (1) a requirement that a county recorder cancel a voter’s registration in that county if the voter moves to and registers to vote in a new county; and (2) a provision that criminalizes knowingly providing a “mechanism for voting” to someone registered to vote in another state.

    The court ruled that the plaintiff voting-rights organizations lacked standing to challenge the first provision, the “cancellation provision.” The plaintiffs alleged that the provision would interfere with their voter-registration activities, and that they’d have to spend time and resources to assist voters with cancelling old registrations when they register in a new county, and that they’d have to divert resources to educate voters about the provision’s effects.

    The court said that these harms didn’t cut it under Alliance for Hippocratic Medicine. The court wrote that the alleged harms lacked record support and were highly speculative, and that “the Organizations’ expenditures to better inform their members and the public about [the Cancellation Provision’s] risks” and “to engag[e] in public advocacy and public education” do not confer standing.

    As to the criminal provision, the court held that the plaintiff organizations had standing for pre-enforcement review. But it went on to say that they weren’t likely to succeed on the merits, because “mechanism for voting” didn’t encompass their “voter registration and mobilization” activities.

    Judge Bress, joined by four other judges, concurred and argued that the court didn’t “engage fully with the core reasoning of Alliance for Hippocratic Medicine, including by not acknowledging key parts of that decision.”

    Judge VanDyke separately concurred, joining Judge Bress’s decision and adding that the court should modify its approach to organizational standing.

  • D.C. Circuit Declines to Halt Trump EO on Mail-In Voting

    The D.C. Circuit today affirmed a lower court’s refusal to halt the implementation of President Trump’s EO on mail-in voting. The ruling would allow the Administration to move forward with its implementation of the EO.

    But at the same time, the decision comes just days after the Second Circuit declined to stay a different lower court opinion that halted the implementation. The Administration asked the Supreme Court to intervene in that case just yesterday.

    Both cases test whether the issue is ripe for judicial review, given that the Administration hasn’t yet implemented the EO.

    The two cases leave the EO in limbo, at least in the plaintiff states in the Second Circuit.

    The cases test President Trump’s March 31, 2026, EO on mail-in voting. The plaintiffs in the cases argued that the EO’s Sections 2, 3, and 5 exceeded the President’s authority, violated the Elections and Electors Clauses, and violated the Tenth Amendment’s anti-commandeering principle.

    Section 2 of the EO directs DHS to compile a list of U.S. citizens and transmit the list to the states. It also provides for investigation and prosecution of state officials who issue or distribute ballots to individuals not eligible to vote. Section 3 directs the U.S. Postal Service to issue regulations governing the design of envelopes for mail-in voting and requiring all ballot mail to be mailed in such envelopes. Section 5 orders the Attorney General and department heads “to deter and address noncompliance” by “state and local election officials” and “public or private entities engaged in” ballot printing or distribution.

    The problem with the challenges, according to the Administration and the D.C. Circuit, is that the Administration hasn’t yet implemented the EO, and so we don’t know exactly how the Administration will implement it and exactly what harms it might cause. Without better information about implementation and harms, the reasoning goes, courts can’t judge its lawfulness.

    That said, the D.C. Circuit expressed some mixed feelings on the merits. On the one hand, it wrote that the “Plaintiffs have identified a number of serious questions concerning the lawfulness of proposed actions if implemented on the threshold of the upcoming federal election.” (Emphasis in original.) On the other, it said,

    Given the Executive Order’s repeated commands for agency action to conform to the law, this court cannot assume that the agencies will impose such late-breaking disruption on the States’ conduct of the 2026 election.

  • Court Halts Key Portions of Trump’s Elections Executive Order

    Judge Indira Talwani (D. Mass.) ordered the government to halt implementation of key portions of President Trump’s executive order on elections.

    The ruling prevents federal government agencies from compiling a list of eligible voters; it prevents the Postal Service from initiating rulemaking on mail-in ballots; and it halts the government from enforcing certain provisions against states.

    While the ruling is a sharp rebuke, the Trump Administration will surely appeal.

    The case, State of California v. Trump, tests the constitutionality of three portions of President Trump’s EO on “Ensuring Citizenship Verification and Integrity in Federal Elections.” Twenty-three states sued to halt these provisions:

    (1) Section 2 of the EO, which directs the Director of the U.S. Citizenship and Immigration Services, in coordination with the Commissioner of the Social Security Administration, to compile lists of citizens eligible to vote in a specific state, and directs the Department of Homeland Security to transmit these “Confirmed Citizen Lists” to each state at least 60 days before a scheduled federal election;

    Section 3, which directs the Postmaster General to initiate rulemaking regarding “election mail design,” to provide each state with a list of individuals “enrolled with the USPS,” and not to transmit a ballot of any voter who hasn’t been “enrolled”;

    Sections 2 and 5, which describe certain federal criminal offenses and require the Attorney General to prioritize the prosecution of state and local officials who issue ballots to individuals who are not eligible to voter; and

    Section 5, which strongly suggests that states retain voting records for five years.

    The court ruled that the President lacked authority to issue the EO in each of these areas.

    The court started by noting that the Voter Qualifications Clause (for members of the House), the Seventeenth Amendment (for members of the Senate), the Elections Clause, and the Electors Clause all say that states, not the federal government, have default power over federal elections. At the same time, the court acknowledged that Congress has authority to “make or alter” state election laws under the Elections Clause, and that it has done so through several acts, including the Help America Vote Act.

    But the court said that nothing in the Constitution or federal law gave the President the power to issue these orders.

    As to compiling the lists, the court simply held that the President has no power to order this.

    As to USPS regulations, the court said that USPS lacks statutory authority to issue regulations on mail-in voting, and that in any event the EO requires USPS to act on a timeline that’s inconsistent with federal law.

    As to enforcement, the court held that to the extent that the EO attempts to intimidate state and local election officials to use the federally created eligible-voter lists, it’s invalid.

    Finally, as to voting-record retention, the court said that Congress set a twenty-two-month retention requirement, and that the President has no authority to extend it.