Judge says Trump’s attack on mail voting is ‘unconstitutional,’ legal challenge can continue

A federal judge in Massachusetts has refused to dismiss a lawsuit against President Donald Trump’s executive order (EO) targeting mail voting, setting the stage for the challenge to proceed.

In her order Wednesday, U.S. District Court Judge Indira Talwani called the order “unconstitutional” and said that, if allowed to stand, “disenfranchisement as to the upcoming election is plausibly likely and imminent.”

The Trump administration argued that the lawsuit, filed by a coalition of voting rights groups led by the League of Women Voters (LWV), should have been tossed as premature and for failing to state an actionable claim. But U.S. District Court Judge Indira Talwani disagreed, allowing it to continue.

“Plaintiffs’ organizational and associational injuries are caused by the EO’s novel voting regulation mandates and enjoining the EO would cure those injuries,” Talwani wrote.

The decision suggests that Talwani will likely find that LWV can show that, if the EO isn’t blocked, they will suffer the “irreparable harm” required for a court to grant the preliminary injunction plaintiffs are seeking.

The executive order directs states to send the U.S. Postal Service (USPS) a list of voters who asked to vote by mail and to develop new envelopes with barcodes linked to those voters for mail ballots. The Postal Service would then refuse to deliver ballots to unlisted voters or ballot envelopes without the barcode. 

Talwani already blocked the order’s implementation in 22 states and Washington D.C. in a separate lawsuit launched by those jurisdictions, which she alluded to in her order Wednesday. 

“As this court has explained, Section 3 of the EO is unconstitutional,” Talwani wrote. “The ‘Constitution lodges power over congressional elections in state legislatures primarily and in Congress ultimately. The President plays no role in the regulation of elections.”

“Congress has not delegated authority to USPS to sort the mail, let alone to refuse to transmit mail ballots for certain voters,” she added, noting that the EO, in fact, “directs the violation of several of [the] obligations imposed on USPS by Congress.”

The LWV plaintiffs asked the court to block implementation of the EO Monday, after a Washington D.C. appellate court in an independent lawsuit suspended a nationwide preliminary injunction pending appeals there. Talwani ordered briefing on LWV’s renewed injunction motion ahead of an Aug. 7 hearing.

While allowing the plaintiffs’ constitutional and Voting Rights Act challenges to stand, Talwani did grant one of the administration’s motions, dismissing an Administrative Procedure Act claim.