Dem
52
Ties
1
GOP
47
There have been some developments in the case brought by the League of Women Voters (LWV) and other voting rights groups challenging Donald Trump's executive order to control how mail-in ballots are handled. As readers will recall, this case, and a case brought by 23 states titled California v. Trump, are in front of U.S. District Court Judge Indira Talwani in Massachusetts. Talwani issued injunctions in both cases, with the LWV injunction applying nationwide and the other injunction only applying to the 23 state plaintiffs. On Monday, a majority of Supreme Court justices (the exact number of which is not known) overturned the injunction as to the states, finding that because the USPS had not issued a final order, the case was not yet "ripe" (i.e., sufficiently developed for the court to hear).
In the meantime, Talwani's injunction in the LWV case, which was put in place on August 11, had enjoined the USPS not only from implementing any new rules with respect to elections but also from "initiating or completing rulemaking" in response to the executive order. Nevertheless, the postal service issued what it called a "final order" with an effective date of August 21 and to be published on August 26. LWV filed an emergency motion on Tuesday to enforce the preliminary injunction, and late Tuesday night, Talwani agreed that the administration had violated the court's order. But she stopped short of granting the relief sought by LWV to nullify the final rule as to the midterm elections. Instead, she agreed with the defendants that because her order is still in place, the rule currently has no force or effect.
Then, Talwani did a couple of very clever things. First, she noted that in its emergency appeal to the Supreme Court in California v. Trump, the government "feigned compliance" with the order and lamented to the Court that their hands were tied to implement the XO and that they were being harmed "every day that the agencies are unable to take steps to carry out the Executive Order as to the November 2026 election." At the same time, they were preparing the final rule, effective August 21, to carry out the XO in direct violation of the court's order and their assertions to the Supreme Court. Talwani also noted that the Supreme Court believed their representations, which we now know were lies.
The next thing she did was to deny the remedies proposed by LWV. Instead, she suggested to the plaintiffs that they file an amended complaint as to the final rule, formally titled "Ballot Mail for Federal Elections." The defendants indicated that they would consent to that filing. She noted that the prior filings had challenged the XO itself, not the final rule. And, as an aside, she added this: "Defendants' violation of the court's order may ultimately inure to Plaintiffs' benefit, where, now that a Final Rule has issued despite the pendency of the injunction, Plaintiffs could choose to file an amended complaint reasserting their current, non-APA claims, but noting that the issuance of a Final Rule is no longer hypothetical."
This aside previewed what happened yesterday. On Wednesday, Talwani lifted the nationwide injunction in the LWV case, and LWV and the other plaintiffs filed their amended complaint challenging the Final Rule, which was published that same day by the USPS. In other words, the Supreme Court's reasoning for striking down her first injunction in the states' case—that the case was brought prematurely—no longer applies. Now, the plaintiffs can seek a new preliminary injunction of the Final Rule, which will no doubt be granted expeditiously.
One final thought as these machinations play out: District courts don't normally have to try to game the Supreme Court like this to get justice served or to prevent significant harm to our democracy. The evidence can no longer be denied that we have a Supreme Court majority that is willing to go increasingly further to sow chaos and put a thumb on the scales for Republicans in upcoming elections. We'll see how they handle the inevitable emergency appeal when they have to decide this issue on the merits. One other trick the Supremes have up their sleeve is to again rely on their selective application of the "Purcell principle" which cautions courts about changing rules too close to an election. Readers will recall that they invoked this rule in the summer of 2025 with respect to Texas gerrymandering, despite being months away from the primary, and then claimed it didn't apply to Alabama despite voting having already begun in that state. It would be an even greater abomination to reverse an injunction on the grounds that the case was brought too soon and then reverse the same injunction on the grounds that it's too late, but we're beyond being surprised by this Court. We're not beyond being disappointed and appalled, but no longer surprised. (L)