Dem
52
Ties
2
GOP
46
Yesterday, the Supreme Court denied Donald Trump's emergency application, in which he sought to put a hold on the preliminary injunction prohibiting the full implementation of the USPS rule controlling mail-in voting.
Though one can't be sure with the shadow docket, it appears to be a 7-2 decision, because the only dissents are from Associate Justices Samuel Alito and Clarence Thomas. Associate Justice Brett Kavanaugh provided a brief concurrence, in which he declared that he was only denying the request for a stay because it would be "arbitrary and capricious" to apply the rule to the 2026 elections inasmuch "state and local elections officials do not have sufficient time to reasonably implement the rule before the elections." But he also noted that "there is at least a fair prospect" the postal service has the statutory authority to issue the final rule. That seems a bit ominous, but it looks likely there are six votes to strike the rule down altogether when it inevitably comes back to SCOTUS on the merits.
So, this case is far from over, but at least for the 2026 midterms, mail-in ballots will be delivered and returned as usual. Interestingly, the lower court's injunction only prohibits making states' cooperation with the final rule mandatory, though it still allows voluntary compliance. It's unclear what states, if any, have cooperated, and in what way since the database that postal workers are supposed to use to verify voter status for each ballot is not operational.
But that may be a moot point. SCOTUS' ruling applies in the case out of Boston brought by states and voters' rights groups and presided over by U.S. District Judge Indira Talwani. But there is another case that was brought in D.C. that is currently in front of U.S. District Judge Carl Nichols. Late Sunday night, Nichols issued his own preliminary injunction prohibiting any implementation of the USPS rule, whether voluntary or otherwise. So, his injunction goes further than Talwani's injunction. Nichols, a Trump appointee, found that the USPS exceeded its authority in issuing the rule and, therefore, it is "ultra vires" and cannot be enforced.
Nichols' order reaches the opposite conclusion from the one in Alito's dissent. Contrary to Alito, Nichols found that the plaintiffs had, indeed, shown they were likely to succeed on the merits. In a case brought by the NAACP, LULAC and DSCC, Nichols held that the new envelope design requirements, the requirement for state officials to enroll each voter in the Federal Ballot Mail Portal, and the verification process for the first two steps by postal workers "exceed any conception of the outer bounds" of statutory authority for the USPS. "Nothing in the Postal Reorganization Act authorizes the Postal Service to impose new election procedures on state election officials, to create a data collection system for mail-in and absentee voters, or to refuse the transmission of lawful mail because it fails to meet these data collection requirements." Nichols notes that none of these requirements are "necessary" or "incidental" to the delivery or processing of mail.
Nichols' injunction applies nationwide (because the plaintiff organizations have members in all fifty states) and is not affected by SCOTUS' decision in the other case. This case could be where the action is going forward. In fact, it wouldn't surprise us if there were yet another "emergency" application on the Court's shadow docket to put this order on hold, so the Trump administration can at least lean on states to voluntarily participate in the scheme. In the meantime, however, the postal rule has been returned to sender. (L)