Good response to the Postal Service

Marc Elias, Democracy Docket - In my 30 years as a lawyer, I have read countless government documents. Over the last decade, I have watched Trump and his lawyers spin lies and frivolous arguments.

Yet, nothing quite prepared me for this sentence from a rule released by the U.S. Postal Service on Friday night: "Although ballot mail does not present precisely the same operational issues as cremated remains or replica explosives, it is unquestionably sensitive mail that raises unique operational considerations."

A mail-in ballot does not pose a health risk. It will not cause panic if exposed to the public. It's a piece of paper marked with a pen that is only dangerous to authoritarians wishing to rule rather than govern with the consent of their citizens.

Ballots do not raise "unique operational considerations" unless you are aiming to limit voting and undermine democracy. Such Orwellian reasoning is dangerous to an already fragile republic battered by years of Trump's lies. 

Yet, equating mail-in ballots to human remains and fake explosives is part of the rationale the U.S. Postal Service offered to justify Donald Trump's unconstitutional executive order. It is how they sought to get around the obvious fact that Congress has not given the USPS or the president authority to do what they're attempting here: render unmailable any ballots Trump disapproves of.

 The USPS announced all of this in a rule it released late Friday night — presumably hoping few would notice what it was up to. The new rule was crafted to effectuate Trump's March executive order, which restricts mail voting and creates a new federal voter database.

 Under this new rule, the USPS will only send mail ballots to voters included on a state list. If voters aren't on the lists, they will not receive a ballot.

 Earlier this summer, a federal court blocked this executive order and halted the rulemaking. In June, the court granted the motion of 24 Democratic attorneys general to invalidate this entire scheme.

After the First Circuit upheld this victory, the Department of Justice sought emergency relief from the Supreme Court. Their argument was not that Trump's executive order was lawful, but rather that the states' lawsuit was premature.

 The DOJ suggested that no steps had been taken to implement Trump's power grab, and perhaps the Postal Service and other federal agencies would refuse to take the actions Trump suggested. That was always a sham aimed at buying time — dismiss the lawsuit as premature, then move fast enough to later claim the process was too far along to stop.

 Since the DOJ sought Supreme Court relief in July, the time left to implement this executive order has begun slipping away. Two weeks ago, the DOJ asked the Court to hurry up.

 It also asked the Court to proactively block a nationwide injunction the district judge had issued in a second, related case brought by a group of nonprofits representing voters. Yet, as the week ended, the Supreme Court remained silent.

 Finally, on Friday night, the USPS acted, noting that "delaying the effective date would jeopardize implementation of this rule in time for the 2026 general election, which will be held on November 3, 2026."

 So much for their argument that the case wasn't ripe for adjudication.

 With this step, the Postal Service has unquestionably taken the type of concrete action that satisfies the standing requirement that the DOJ told the Supreme Court was missing. The Postal Service conceded as much in its Friday notice: "The rule would require states to adjust their processes and adapt to the changes imposed by the rule, potentially incurring new costs."

 There was one more twist that USPS was probably not expecting. On Sunday, the nonprofit plaintiffs filed an emergency motion with the trial court to halt the publication of the rule. If it isn't published, it cannot take effect.

 The DOJ attempted to minimize this by suggesting that the rule's implementation was contingent on the DOJ winning at the Supreme Court. The judge was not amused. She ordered the DOJ to respond to the motion by 8 a.m. on Tuesday — so that she could, if necessary, block its publication scheduled for Wednesday.

 We have come to expect these types of games from the Trump administration. We knew he had planned to weaponize the historically nonpartisan U.S. Postal Service to meet his own political needs.

 On that score, the rule did not hide the ball. It reflects the "importance of applying additional measures concerning the use of the mail to vote in federal elections, in order to facilitate enforcement of federal law, reduce the risk of fraud, and help protect the integrity of federal elections."

 Never mind that there is little risk of fraud and nothing this rule does would minimize it. After 250 years, it is sad to see the Postal Service reduced to chasing false claims of fraud and suggesting ballots pose unique challenges.

 Everything Trump touches is tarnished. That now includes the USPS..