The Justice Department Skipped the Appeals Court and Went Straight to the Supreme Court on Mail Ballots

The Trump administration asked the Supreme Court on Thursday afternoon to let it enforce new Postal Service rules for mail ballots immediately, filing an emergency application that leapfrogged a federal appeals court still weighing the case. Ballots for the November midterms start going out Friday.

The rules flow from an executive order Trump signed in March directing the Department of Homeland Security and the Social Security Administration to assemble a nationwide list of eligible voters. Under the accompanying Postal Service policy, a state that wants its mail ballots delivered must obtain federal approval of its envelope designs and hand the USPS a roster of voters eligible to receive them. Neither requirement has any precedent in the agency's history.

U.S. District Judge Indira Talwani issued a temporary restraining order last week blocking parts of the policy. Rather than wait for the First Circuit to rule, the Justice Department went directly to the justices. The Court directed the challengers to file their response by 10 a.m. Eastern on Tuesday, September 8 — a schedule that leaves the justices roughly eight weeks before Election Day and considerably less than that before most states are well into voting.

A coalition of 23 Democratic-led states and several voter advocacy groups brought the underlying challenge. Their argument is structural rather than partisan: the Constitution assigns the times, places and manner of congressional elections to state legislatures and to Congress, and neither the president nor the Postal Service has any role in deciding which mail ballots reach which voters. Requiring federal sign-off on an envelope, they contend, hands an executive agency a veto over a state's election machinery.

This is the second time this cycle that the administration has taken its mail-ballot order to the Supreme Court. It asked the justices to unblock the order in late July, fourteen weeks out from the midterms, after a federal judge blocked it in June along with the federal voter-list provision. The Postal Service had separately floated a proposal in June to stop delivering mail ballots in states that decline to share voter data. Each piece has drawn its own litigation, and the pieces are now converging on the same court at the same time.

The timing is the whole fight. An emergency application of this kind asks the justices to change the rules of an election that is already underway, which the Court has historically been reluctant to do. Election administrators in the 23 challenging states have printed envelopes, programmed scanners and trained workers on the assumption the policy stays blocked. A ruling for the administration in September would require them to redo that work while ballots are in the mail; a ruling against it leaves a signed executive order unenforced through a second federal election.