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..
