USPS Plays a 'Puzzle Game' With the Right to Vote

Justice Kentanji Brown Jackson, dissenting from the Supreme Court's decision to stay a preliminary injunction against implementation of President Trump's executive order on mail-in voting, wrote that allowing the plan to proceed could "foment chaos" ahead of the upcoming midterm elections. You’ll never guess what happened next.

Following a weeklong litigatory blitz involving myriad motions by multiple plaintiffs in two jurisdictions, the United States Postal Service's final rule—issued at 9 p.m. on the Friday before the Monday on which the Supreme Court ruled the challenge wasn't ripe for review because there was no final rule—got its day in court on Sept. 3.

"I don't think anyone can be accused of slow-walking anything," Judge Indira Talwani says upon taking her seat on the bench at the John Joseph Moakley Courthouse overlooking a drizzly Boston Harbor. She's hearing combined arguments in League of Women Voters of Massachusetts v. Trump and State of California v. Trump on revised motions for a preliminary injunction that would supersede the temporary restraining order (TRO) she has already put in place. The Justice Department has already appealed the TRO to the First Circuit (this despite TROs being generally understood to be unappealable), and its opening move in the hearing evinces a similar need for speed: Rule today, its lead counsel says, or we’re going to take the appeal all the way to the Supreme Court.

Judge Talwani provides a spoiler for what to expect from the hearing—or rather, what not to expect. She never rules from the bench, she says, and she doesn’t plan to today. The administration, as promised, appealed the TRO to the Supreme Court before close of business, in a highly irregular and possibly impermissible step.

The desire to move fast in order not to break things permeates the rest of the proceedings. This is no surprise. The election is under 70 days away, and some states are slated to send out mail-in ballots this very week. Both sides have cast a loss under these circumstances as causing them irreparable harm: the plaintiffs because they may be forced to comply with unlawful rules that will disenfranchise voters, and the defense because they may be unable to implement lawful rules that they claim will enhance election integrity.

There’s a certain irony to this. The government had previously insisted that it wasn’t too early for the merits to be considered. Now, suddenly, it seems to have become too late.

The Proof Is In the Voting: Jurisdiction and Standing

The hearings begins in earnest with the question of jurisdiction. Judge Talwani wants to know whether there’s any disagreement that the 23 plaintiff states and the District of Columbia now have standing with respect to at least some of their claims, and there’s not. But the defense does challenge the standing of the seven plaintiff organizations, a collection of voting rights groups with members in all 50 states.

Judge Talwani says she understands the argument that the members of these groups already represented by plaintiff states may not have standing, but what about members from the 12 states who are intervening in the matter on the side of the government? She has declarations—many, many declarations—from individuals in those states concerned that this late rolled-out program will mean that even though they’re properly on the voter rolls, they’ll be prevented from actually voting: because, say, one barcode in a batch of 10,000 ballots doesn’t match up with what appears in the portal USPS plans to assemble of state-submitted lists of mail-in voters. This risk of disenfranchisement doesn’t suffice?

The answer to her question comes from the counsel for the intervening states, and it remains constant at various points in the hearing: The states “believe they can comply” with the order, so from their perspective there’s no risk of disenfranchisement in their states, and the burden should be on the plaintiffs to prove that there is that risk—not on them to prove there isn’t. This is convenient, considering these states have provided only a single declaration, of a single page, from a single state, Missouri, actually attesting that it will be “possible to implement this rule” for the upcoming midterms.

Judge Talwani has other reasons to be dubious. One of them, she will note later in the hearing, she won’t take into advisement because it isn’t officially in the record: This is a letter released by Sen. Richard Blumenthal (D-Conn.) days before, in which a whistleblower claims that the USPS’s development of the Federal Ballot Mail Portal to which states are supposed to submit their voter lists has been “sloppy,” “haphazard,” and even a “shitshow.” This, coupled with a zero percent rate of tolerated failure, could result in large batches of ballots being sent back to states when only one of them was flagged—perhaps falsely—as noncompliant. Judge Talwani also doesn’t engage the parties on the portion of the whistleblower letter that suggests the continued development of this system while her injunction was in place was in violation of her order.

What she does address, and what is already before her, is the lack of detail available on how this portal is supposed to function. Does it work like a party invitation website, she wants to know, such that states can upload entire spreadsheets rather than submit voters one-by-one? The lawyers for the defense indicate, somewhat uncertainly, that it’s a “yes” to the spreadsheets. When states submit their ballot designs for review—step one—when can they expect to hear back?

Judge Talwani concedes that she was incorrect in her TRO to say there was no estimated timeline; it turns out that USPS has referred to a “historical practice” of two days. But “you want me to go on historically,” when there is no actual deadline in the rule, and there have never been 10,000 separate designs from 10,000 separate jurisdictions submitted all at once, and assume two days?

Yes, says the Justice Department lawyer.

Returning to standing, Judge Talwani would still like to understand why voters who are worried that their ballots will be turned away don’t have it. The counsel for the intervening states replies that the “injury is too speculative.” When won’t it be too speculative? Apparently, when evidence emerges that a state actually can’t comply—never mind that this evidence may only emerge following vote failure. And by the way, the defense says, limit the standing to voters in the states where that evidence has been established.

Finally, Judge Talwani probes the government’s position that at least some portions of their complaints have to be routed through the PRC (NB: the Postal Regulatory Commission, not the People’s Republic of China, lest there be any confusion). She’s curious whether, even if it’s ultimately the PRC’s responsibility to address the merits, district courts may enter preliminary injunctions absent any legislation stripping them of jurisdiction—essentially, to provide time-sensitive review where otherwise it would be foreclosed.

The Justice Department lawyer’s answer that the proper Article III authority in that situation would be the 1st Circuit does not persuade her, because, well, “circuit courts don’t give out injunctions.” So, after telling the plaintiffs that the PRC couldn’t hear a complaint until the rule was out, now the defense is telling them that they must go to the PRC despite the fact that it won’t provide any sort of response for 90 days—which is 20 days after the election? “That is your position?”

Yes, says the government. Okay, then.

The plaintiffs affirm and expand on the idea of foreclosed review. The counsel for the groups also addresses the original subject of the standing discussion: stressing that they’ve shown, in the “voluminous briefing” Judge Talwani wryly notes she has received, that there is a substantial likelihood members in every state will suffer irreparable harm—not only in states that have deemed it impossible to comply with the rule. One reason for the problem: As of yet, “the portal does not exist.”

Of Major (Or Minor?) Importance: Merits

Judge Talwani turns next to the question of whether USPS is constitutionally and statutorily permitted to use the as-yet-nonexistent portal to reject ballots. Somewhat perplexingly, the executive order that prompted the USPS rule isn’t actually under review—only the rule is. And the defense is saying that the authority for the rule doesn’t come from the president at all but rather from the Congress.

The implications of this posture are teased out over the course of a rather convoluted colloquy. But the upshot is this: The government believes its line of reasoning allows it to dodge the constitutional questions in the case entirely; either there’s statutory authorization for the USPS’s actions, or there’s not. The plaintiffs disagree, and so, ultimately does Judge Talwani.

The way she sees it, the Elections Clause of Article I, Section 4, of the Constitution does two things. It reserves most aspects of elections entirely for states, and it reserves time, place and manner regulations for states too except that those may be preempted by Congress. The rule here falls into the second category. This means that the statutory matter has a constitutional layer. Judge Talwani must determine whether Congress intended to preempt state laws in this area—and, because of the major questions doctrine, clear and explicit legislative text may be required for her to arrive at that determination.

Of course, the defense isn’t willing to concede that USPS is claiming congressionally delegated authority to preempt state laws under the Elections Clause at all. Judge Talwani suggests that she finds this difficult to believe. USPS has said that states can simply not use the U.S. Postal Service for voting if they can’t comply with its rules—but states had laws already in place prior to the rule’s issuance that effectively lock in the use of the U.S. Postal Service for voting. Nonetheless, the government insists that it can alternatively source its authority to the Article I, Section 8, Postal Service Clause and the authority Congress has delegated under it.

The plaintiffs devote themselves to dismantling that idea. The Justice Department has asserted that USPS has “broad authority” under its general powers statute “to adopt, amend, and repeat such rules and regulations…as may be necessary in the execution of its functions” and under its specific powers statute to “provide for the collection, handling, transportation, delivery, forwarding, returning, and holding of mail.” But whatever leeway USPS has in transmitting mail, it has far less in refusing mail. Indeed, Congress has enumerated what constitutes “nonmailable” matter—including the cremated remains and explosive devices that the government has cited as examples of restrictions similar to those it now imposes on ballots.

“There is no category,” say the plaintiffs, “where nonmailability happens without an expression delegation of congressional power.” So why would ballots be any exception?

The counsel for the intervening states pushes back with a history lesson: “Congress did micromanage the Post Office,” he says, but in the 1980s it “washed its hands” of that approach. This turns out to be a rather creative interpretation. When Judge Talwani asks for an example of a non-mailability interpretation by USPS after that date that’s unmentioned by statute, the Justice Department presents “replica explosives.” Judge Talwani is confused. Wasn’t that statute from before? The distinction the defense is making, it turns out, is between “replica explosives” and “explosives.”

The plaintiffs also point out that Congress has reenacted the non-mailability chapter of the USPS title multiple times. Embarking on something of a side quest, they also suggest that the Administrative Procedure Act, in fact, should apply. This leads Judge Talwani to ask how she should balance the aforementioned need for speed with a desire for thoroughness—so that she can avoid precluding the plaintiffs from pursuing certain arguments before the 1st Circuit, where this case will almost invariably end up. (Her solution, in the end, is to tick through each argument and deem success likely, unlikely or warranting further examination, citing the relevant briefs for the approximate reasoning.)

Judge Talwani also asks the plaintiffs what their response is, if she does reach APA review. They say their purported lack of concern for the states’ reliance interests is a “political and policy judgement.” Judge Talwani points out that this returns her to the executive order, which supposedly shouldn’t be under her scrutiny here. Essentially, the government is saying they did the rule the way they did it because the president told them to.

This allows Judge Talwani to segue back to the main storyline by raising the major questions doctrine again. The lawyer for the intervening states says that, actually, “we often like the major questions doctrine.” But he would argue that this case is simply “not as major” as where said doctrine is typically applied. “There are a lot of adjectives,” says Judge Talwani. Descriptions of the rule range from “modest” to “end of the world.” But, “as a practical matter, the rule is impacting”—she checks her numbers—tens of millions of ballots. “How is that simply a minor little program?”

Adjectives are indeed “not the way to decide this,” says the intervenors’ lawyer. It turns out that he means money is the way to decide: The Supreme Court’s major questions cases, he posits, involved economic programs of hundreds of millions of dollars.

Judge Talwani says she isn’t a business court. “Sometimes,” she says, “the people in front of me are people.” This “isn’t just a question of dollars, it’s a question of voting.” So, if she finds based on the record before her that major disenfranchisement is likely, “aren’t we right there? Or do I need dollars?”

The plaintiffs chime in to suggest that the major questions doctrine also ought to apply because their contention is that Congress has given away a core congressional power, regardless of whether you cite the Postal Service Clause or the Elections Clause, and because the regulation of one of the most common forms of voting in the country constitutes an obvious “political question.”

The counsel for the intervening states says it would be “radical” to suggest that any mandatory USPS rule that “could potentially” affect elections introduces a major question. (Along the way, the Justice Department appears to attempt to convince Judge Talwani it doesn’t make sense for voluntary regulations on election mail to be authorized and mandatory regulations not, but has little success.) Judge Talwani corrects him: any rule “directed at” elections, not just rules that happen to affect elections. The plaintiffs, unsurprisingly, agree.

A “Test Run” for Elections: Remedies and Results

We return, fittingly, to where we began: that phantom portal around which this whole thing revolves.

After the Justice Department lawyer is unable to answer Judge Talwani’s inquiry as to what “certification,” precisely, a state’s election official must provide pursuant to the rule (he defers to the text of the rule, she says it isn’t in the rule—hence the question, presumably), she asks what happens after all of this. If she dissolves her TRO and denies the request for a preliminary injunction, does the portal go live?

“We’d like to fully implement the final rule,” the Justice Department non-answers.

Does the portal go live? He “can’t make representations.”

“So I have nothing in the record to show that—,” Judge Talwani sighs. The administration has, after all, alleged irreparable harm from being prevented from launching a portal that they now cannot aver is even launchable. “Okay, we’ve all been working really hard for a week,” says Judge Talwani. “And you can’t tell me the government has the portal ready to go?”

She asks for a filing that afternoon, which does ultimately appear on the docket in the form of a declaration indicating that USPS anticipates “being in a position to make the Portal available to users for voluntary use by sometime next week.” The document also clarifies what the “certification” pertains to.

The intervening states are very clear in comparison as to what they plan to do after the ruling—if they get their way and the judge limits any injunction to the plaintiff states. They would like to have “the option” to comply fully with the rule, and simply being permitted to submit compliant ballots won’t be enough if USPS isn’t allowed to reject any non-compliant ballots they end up sending in. This would have the added benefit of yielding “real-world evidence” of the rule’s impact.

So we’re going to do a “test run” on this election? Well, “in some states,” yes!

We’re “not playing an intellectual puzzle game,” Judge Talwani reminds him. “We’re talking about people’s right to vote.” She says that having USPS tell states whether noncompliant ballots have been identified and what batches they would return as a result ought to do just as well as a “laboratory” or “experiment,” without risking disenfranchisement.

Which leads to the real question: Why would you want less of a right to vote in your states? The response is, again, that no disenfranchisement has been proven—and that what is desired is to stop cities and counties from submitting flawed ballots. “You can do that with state law,” says Judge Talwani. So the real real question becomes: Why would you want election integrity in your state to be decided by the Postal Service?

The hearing concludes without an answer. Judge Talwani is running out of time; she has another proceeding on the hour. But the country is running out of time, too, as the midterms approach and the mail-in ballots whose transmission this rule is supposed dictate come due.  Her ruling, whenever it comes, is almost certain to land in the 1st Circuit and later the Supreme Court. Meanwhile, regardless of what either USPS or the 12 intervening states want and why they want it, what they’ve gotten so far is exactly what Justice Jackson warned of: chaos.