Major pieces of Post Office’s mail voting rule missing while Justice Department presses Supreme Court to move it forward

The Justice Department’s (DOJ) various court filings defending the U.S. Postal Service’s (USPS) new voting restrictions remain mum on when important components of the rule necessary to comply will become available, even as states start sending out ballots.

The Justice Department is pressing the U.S. Supreme Court (SCOTUS) to lift a lower court block and allow the rule to take effect, arguing the states shouldn’t have problems complying despite the missing components. 

The biggest missing piece is a federal portal where states are expected to upload the names and personal information of everyone who is authorized to vote by mail. On Thursday, the Post Office predicted the portal would be online this week – just hours after a Justice Department attorney fumbled several questions from a federal judge about its availability.

In its filing with the Supreme Court, the Justice Department barely even references the portal, which is mentioned just five times across the 40-page document. Yet, the Trump administration’s argument for allowing the rule to fly hinges on states’ access to it. 

U.S. District Judge Indira Talwani cited the low confidence in the Postal Service’s ability to get the portal up and running in a timely fashion when blocking it on Friday. 

As even the Justice Department noted, at least one state, North Carolina, has already sent out ballots, and several more will mail theirs throughout September. There are 24 states, along with the District of Columbia, that are challenging the rule that will need to send out more than 51 million ballots combined by late October.

The Justice Department doesn’t address whether the portal is near completion or when completion can be expected in its appeal to the Supreme Court. It does say in a separate appeal to the 1st  Circuit Court of Appeals yesterday that “the portal will be functional by next week,” but this is notably absent in the Supreme Court appeal. 

Instead, DOJ wrote off the District Court’s questions about the portal as speculation.

“[A]s for USPS’s purported inability to perform its functions under the Rule, the district court relied heavily on speculation by state officials who lack direct knowledge of the Postal Service’s implementation plans,” the DOJ’s filing to the Supreme Court reads. 

However, state officials would need direct knowledge of those plans in order to comply with them. 

The missing portal is a key concern for states because voters who are not on that approved list will not have ballots delivered by the Postal Service, disenfranchising them.

The Justice Department  appears to admit as much in the appeal to SCOTUS: “In short, the USPS has both specific and general authority to adopt rules for the delivery of the mail, and the Postal Service can refuse to deliver mail that fails to comply with those otherwise-valid rules without somehow violating the statutes that make other types of mail nonmailable.”

Talwani addressed this in her block of the rule, noting that such conditions don’t apply across all forms of mail carried by USPS but instead “explicitly and exclusively regulates election mail.”

As state election officials and attorneys general from many of those states have argued, having to add an extra layer of bureaucracy to the list maintenance that they already have set up would incur more costs and training time. 

Many states may not be able to pull that together with such little turnaround time. Some states have decentralized elections where cities and towns administer voting activities rather than counties, and may not have the resources for a mail voting overhaul so close to an election.

However, the Justice Department seemed to disregard such complications.

“More fundamentally, though, there is no ‘reverse Purcell’ principle under which district courts are free to issue improper injunctions close to an election just because parties purportedly cannot comply with a lawful regulation in time for the election,” the DOJ brief reads. “That is especially so here, where there is no claim that the purported inability to comply in time for the election itself renders the Rule unlawful.”