Justice Department makes final case to 1st Circuit to revive USPS anti-mail voting rule 

The U.S. Postal Service’s mail voting restrictions are “modest” and “clearly lawful,” the Department of Justice said in its final filing to a federal appeals court in a bid to implement the standards for the November elections.

“The Final Rule merely governs the design of envelopes and the verification of envelope barcodes,” lawyers for the administration wrote. “Ballot mail remains deliverable; in fact, USPS intends to process and deliver as many lawful ballots as the States wish to send.”

The Justice Department is racing the clock to get President Donald Trump’s anti-mail voting order enacted before the November midterms. However, some states are already sending out mail ballots, and many more face statutory deadlines to begin mailing theirs in the coming days.

The Justice Department seized on the short time states have left to prepare for the upcoming election as a reason to allow the new measures to go forward with less than 60 days until voting. The administration argued that “the States with the closest deadlines have not suggested any such hardship in having to comply with the Rule.”

The Postal Service’s rule requires states to seek approval for their mail voting envelopes. It also requires states to submit a list of approved mail voters to the Postal Service for review via a portal that is not yet active, even though mail ballots are already being mailed in some states. 

The Justice Department immediately appealed to the 1st Circuit last week after U.S. District Judge Indira Talwani issued a preliminary injunction barring USPS from enforcing the new mail voting rules before the midterms. The administration has also asked the Supreme Court to weigh in. 

Pro-voting groups urged the appeals court to reject the government’s request in a filing on Monday, arguing the Postal Service unlawfully overstepped its authority when developing the new mail voting rules. The Constitution gives states – not the president – the power to administer elections with oversight from Congress.

The groups said USPS’ action represents an “assertion of federal power over state election processes” that “lacks the explicit, unambiguous authorization” required by the major questions doctrine – a legal principle that states a federal agency must have clear permission from Congress if it wants to issue rules on matters of national or political significance.

A coalition of 24 Democratic attorneys general echoed that sentiment in their own opposition brief, in which they said USPS is “regulating well ‘outside its wheelhouse’” to the detriment of voters – one-third of whom cast their ballot by mail in 2024.

“USPS’ rule is both substantively and procedurally defective,” they wrote, highlighting the fact that a key aspect of the new USPS system – a federal portal where states are required to upload sensitive voter data – isn’t even operational yet.

“And the preliminary injunction prevents catastrophic harm to the States and their voters. Indeed, allowing the rule to take effect for this year’s elections would be ‘an unmitigated disaster,’” the Democratic officials said.

The Justice Department attempted to swat down those arguments in Tuesday’s reply brief, contending the major questions doctrine doesn’t apply and downplaying the rule’s impact as a simple mail regulation rather than election administration.

“All the Rule requires is that States abide by certain design and data-reporting requirements with respect to ballot mail,” lawyers for the department wrote. “Those requirements, which are much more akin to requiring postage or a clear, legible address of the intended recipient, are modest. Holding otherwise, as the district court did, would effectively exempt states from having to conform their election mail to any regulation of mail delivery by USPS.”

Notably, the Justice Department brief did not address the status of the online portal states would use to submit lists of approved mail voters. 

At minimum, the Justice Department and red states backing the administration said the federal appeals court should narrow the scope of the preliminary injunction to apply just to blue states challenging the order.

With the arguments now fully briefed in the 1st Circuit, a decision could come at any time. However, the next round of briefs to the Supreme Court on the same issue is due Wednesday.