At some point today, Judge Indira Talwani will tell Donald Trump once again that his scheme to use the Post Office to weed out “illegal” ballots is entirely ultra vires. She’s already said so at least four times, blocking much of Trump’s executive order telling USPS to require states to upload lists of voters and refuse to deliver ballots to anyone they can’t verify as citizens.
On August 27, she issued the most recent TRO, finding that the Post Office has no role at all in policing elections. That came after the Supreme Court’s conservatives kicked the legs out from under her prior rulings, finding them unripe because the Postal Service hadn’t issued a final rule when 24 states, the District of Columbia, and a coalition of civil rights groups led by the League of Women Voters filed their complaint in April.
The rule was finalized on August 21 and made effective immediately — supposedly ready to roll out today, September 4. But the Post Office has never really claimed that the portal is up and running. The best it can manage is a declaration submitted yesterday mumbling that “We continue to make refinements to the Portal, including consideration of changes needed in light of the TRO. We anticipate being in a position to make the Portal available to users for voluntary use by sometime next week.”
According to a whistleblower report published by Sen. Richard Blumenthal, though, the entire thing was rushed into production — in violation of Judge Talwani’s prior orders — and is nothing more than a rickety bucket of code (likely AI generated) held together with duct tape and MAGA shitposts.
The hearing on the PI did not go well for the DOJ, whose main concern seemed to be getting its ticket punched by the trial judge and the First Circuit, where it is almost certain to lose, before asking John, Clarence, Sam, Neil, Brett, and Amy to bail them out again.
Just hours after the hearing, with nothing in writing from those laggards in New England (plus Puerto Rico!), they made good on their promise to take the fight back to Washington.
“The district court’s continued prejudgment of the rule is baseless, and an immediate stay is warranted because ‘the District Court’s errors deal a serious setback to the Executive’s goals while this litigation unfolds,’” Solicitor General John Sauer huffed in his emergency petition requesting an immediate administrative state of the TRO.
It takes balls to accuse the trial judge of “continued prejudgment” of a rule that was finalized two weeks ago in exactly the same form as when it was proposed months ago. In his signature indignant style, Sauer goes on to argue that, just as the post office has the right to regulate the shipment of cremated pets, it must necessarily be allowed to regulate voting for tens of millions of American citizens. This is mere housekeeping, he insists, while somehow also claiming that it’s vital to ensuring free and fair elections.
Sure, the states have already invested in non-compliant ballot envelopes and no one is quite sure if this thing will work. But allowing the midterms to proceed under the status quo ante is an irreparable harm to the government and red states, even though they are perfectly free to shove their voter rolls into the Post Office’s magic sorting hat if they want to.
In the event, Justice Jackson did not grant the admin stay. She gave the states until Tuesday, September 8 to respond. Presumably the government will take another swing at it after Judge Talwani rules later today, perhaps hoping to gin up enough conservative pressure to force Justice Jackson’s hand. And meanwhile we all wait to see exactly how much chaos the six horsemen of the apocalypse feel like unleashing on an election that is just 59 days away.
League of Women Voters v. Trump [Docket via Court Listener]
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
