Trump’s anti-mail voting order gets blocked again, this time by federal appeals court

The U.S. First Circuit Court of Appeals denied the Trump administration’s request to pause a lower court order that blocks the U.S. Postal Service (USPS) from executing the president’s March executive order attacking mail voting.

The decision means President Donald Trump’s sweeping assault on mail voting won’t be carried out in 23 states and the District of Columbia. The three-judge panel ruled 2-1 against the Trump administration’s motion, with one – Judge Joshua D. Dunlap, a Trump appointee – dissenting to part of the ruling.

U.S. District Court Judge Indira Talwani’s June 25 ruling that the USPS can’t refuse to deliver mail ballots to states that refuse to comply with the U.S. Justice Department’s (DOJ) demands for their unredacted voter lists will remain in place.

Judge Talwani’s ruling pointed out that complying with Trump’s executive order’s unusual demands would mean states would be financially burdened for making changes to its mail ballot envelopes. The executive order directs the USPS to control states’ mail ballot designs by ensuring they have unique Intelligent Mail barcodes and logos on the envelopes. 

The postal service is expected to impose these changes even for states that have already purchased mail-in ballot envelopes for the year.

The appeals court panel was not moved, however, by the Trump administration’s argument that such costs should be disregarded, for now, because the USPS has yet to issue any final rules on the new designs.

“As the district court determined, the summary judgment record reflects that any change to the kind of envelopes state and local officials must use for voting by mail will necessarily force the Plaintiff States to incur monetary and operational costs,” wrote the appeals court. “Thus, we fail to see how [the Trump administration] has made a strong showing that the Plaintiff States will incur no costs as a result of the EO.”

The ruling also focuses on the executive order’s threats to criminally punish any state or local officials who refuse to comply. Under the order, the USPS would only send mail ballots to states that send their unredacted voter files to DHS, which would approve voter eligibility via a national voter registration database. 

This is an unprecedented federal incursion into states’ exclusive power to determine voter eligibility as deemed by the U.S. Constitution.

“The EO directs unprecedented levels of involvement by federal officials in how states administer elections,” wrote the appeals court. “In doing so, the EO plainly affects the Plaintiff States’ ‘sovereign power . . . to create and enforce a legal code’ for elections.”

The Trump administration has ordered DHS to run states’ voter files through a flawed database system called the Systematic Alien Verification for Entitlements (SAVE), which is supposed to be used solely for verifying eligibility for government benefits. Election experts have shown that the SAVE system has regularly misidentified eligible voters. 

Meanwhile, DHS Sec. Markwayne Mullin has stated publicly that he will pursue criminal charges against state election officials who won’t submit voters’ records to run through this system.

The appeals court pointed out that the Trump administration “repeatedly indicated” that the DHS voter database could be used to “facilitate … post-election law-enforcement activity.”

However, the Trump administration argued that no such criminal prosecution threats exist because the executive order “does not change anything at all about elections in any State,” as it wrote in its July 7 emergency motion appeal. 

“It does not require the States to do (or refrain from doing) anything at all,” the Trump administration wrote. “Plaintiffs fear potential future injury from action agencies may eventually take—in other words, from ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”

But the appeals court pointed out that the Trump administration had no answer to Judge Talwani’s question of whether it would prosecute a state official for sending a ballot to someone not on DHS’s approved voter list. 

“State and local officials are no exception to the commonsense rule that ‘[p]eople do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around,’” wrote the appeals court.