{"id":557,"date":"2026-09-04T14:09:44","date_gmt":"2026-09-04T14:09:44","guid":{"rendered":"https:\/\/nationalconsumerreportss.com\/?p=557"},"modified":"2026-09-04T14:09:44","modified_gmt":"2026-09-04T14:09:44","slug":"usps-plays-a-puzzle-game-with-the-right-to-vote","status":"publish","type":"post","link":"https:\/\/nationalconsumerreportss.com\/?p=557","title":{"rendered":"USPS Plays a ‘Puzzle Game’ With the Right to Vote"},"content":{"rendered":"
\n

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 could “foment chaos” ahead of the upcoming midterm elections. You\u2019ll never guess what happened next.<\/p>\n

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Following a weeklong litigatory blitz involving myriad motions by multiple plaintiffs in two jurisdictions, the \u2014issued 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\u2014got its day in court on Sept. 3.<\/p>\n

“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 <\/em>and State of California v. Trump<\/em> 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\u2019re going to take the appeal all the way to the Supreme Court<\/em>.<\/p>\n

Judge Talwani provides a spoiler for what to expect from the hearing\u2014or rather, what not to expect. She never rules from the bench, she says, and she doesn\u2019t 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.<\/p>\n

The desire to move fast in order not <\/em>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.<\/p>\n

There\u2019s a certain irony to this. The government had previously insisted that it wasn\u2019t too early <\/em>for the merits to be considered. Now, suddenly, it seems to have become too late.<\/p>\n

The Proof Is In the Voting: Jurisdiction and Standing<\/strong><\/p>\n

The hearings begins in earnest with the question of jurisdiction. Judge Talwani wants to know whether there\u2019s 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\u2019s not. But the defense does <\/em>challenge the standing of the seven plaintiff organizations, a collection of voting rights groups with members in all 50 states.<\/p>\n

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\u2014many, many declarations\u2014from individuals in those states concerned that this late rolled-out program will mean that even though they\u2019re properly on the voter rolls, they\u2019ll be prevented from actually voting: because, say, one barcode in a batch of 10,000 ballots doesn\u2019t 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\u2019t suffice?<\/p>\n

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 \u201cbelieve they can comply\u201d with the order, so from their perspective there\u2019s no risk of disenfranchisement in their states, and the burden should be on the plaintiffs to prove that there is <\/em>that risk\u2014not on them to prove there isn\u2019t. 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 \u201cpossible to implement this rule\u201d for the upcoming midterms.<\/p>\n

Judge Talwani has other reasons to be dubious. One of them, she will note later in the hearing, she won\u2019t take into advisement because it isn\u2019t 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\u2019s development of the Federal Ballot Mail Portal to which states are supposed to submit their voter lists has been \u201csloppy,\u201d \u201chaphazard,\u201d and even a \u201cshitshow.\u201d 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\u2014perhaps falsely\u2014as noncompliant. Judge Talwani also doesn\u2019t 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.<\/p>\n

What she does <\/em>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\u2019s a \u201cyes\u201d to the spreadsheets. When states submit their ballot designs for review\u2014step one\u2014when can they expect to hear back?<\/p>\n

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 \u201chistorical practice\u201d of two days. But \u201cyou want me to go on historically,\u201d 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?<\/p>\n

Yes, says the Justice Department lawyer.<\/p>\n

Returning to standing, Judge Talwani would still like to understand why voters who are worried that their ballots will be turned away don\u2019t have it. The counsel for the intervening states replies that the \u201cinjury is too speculative.\u201d When won\u2019t it be too speculative? Apparently, when evidence emerges that a state actually can\u2019t comply\u2014never 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.<\/p>\n

Finally, Judge Talwani probes the government\u2019s position that at least some portions of their complaints have to be routed through the PRC (NB: the Postal Regulatory Commission, not <\/em>the People\u2019s Republic of China, lest there be any confusion). She\u2019s curious whether, even if it\u2019s ultimately the PRC\u2019s responsibility to address the merits, district courts may enter preliminary injunctions absent any legislation stripping them of jurisdiction\u2014essentially, to provide time-sensitive review where otherwise it would be foreclosed.<\/p>\n

The Justice Department lawyer\u2019s answer that the proper Article III authority in that situation would be the 1st Circuit does not persuade her, because, well, \u201ccircuit courts don\u2019t give out injunctions.\u201d So, after telling the plaintiffs that the PRC couldn\u2019t 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\u2019t provide any sort of response for 90 days\u2014which is 20 days after the election? \u201cThat is your position?\u201d<\/p>\n

Yes, says the government. Okay, then.<\/p>\n

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\u2019ve shown, in the \u201cvoluminous briefing\u201d Judge Talwani wryly notes she has received, that there is a substantial likelihood members in every state will suffer irreparable harm\u2014not only in states that have deemed it impossible to comply with the rule. One reason for the problem: As of yet, \u201cthe portal does not exist.\u201d<\/p>\n

Of Major (Or Minor?) Importance: Merits<\/strong><\/p>\n

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\u2019t actually under review\u2014only the rule is. And the defense is saying that the authority for the rule doesn\u2019t <\/em>come from the president at all but rather from the Congress.<\/p>\n

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\u2019s statutory authorization for the USPS\u2019s actions, or there\u2019s not. The plaintiffs disagree, and so, ultimately does Judge Talwani.<\/p>\n

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 <\/em>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\u2014and, because of the major questions doctrine, clear and explicit legislative text may be required for her to arrive at that determination.<\/p>\n

Of course, the defense isn\u2019t 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 <\/em>for voting if they can\u2019t comply with its rules\u2014but states had laws already in place prior to the rule\u2019s 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.<\/p>\n

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The plaintiffs devote themselves to dismantling that idea. The Justice Department has asserted that USPS has \u201cbroad authority\u201d under its general powers statute \u201cto adopt, amend, and repeat such rules and regulations\u2026as may be necessary in the execution of its functions\u201d and under its specific powers statute to \u201cprovide for the collection, handling, transportation, delivery, forwarding, returning, and holding of mail.\u201d But whatever leeway USPS has in transmitting mail, it has far less in refusing <\/em>mail. Indeed, Congress has enumerated what constitutes \u201cnonmailable\u201d matter\u2014including the cremated remains and explosive devices that the government has cited as examples of restrictions similar to those it now imposes on ballots.<\/p>\n

\u201cThere is no category,\u201d say the plaintiffs, \u201cwhere nonmailability happens without an expression delegation of congressional power.\u201d So why would ballots be any exception?<\/p>\n

The counsel for the intervening states pushes back with a history lesson: \u201cCongress did micromanage the Post Office,\u201d he says, but in the 1980s it \u201cwashed its hands\u201d 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\u2019s unmentioned by statute, the Justice Department presents \u201creplica explosives.\u201d Judge Talwani is confused. Wasn\u2019t that statute from before? The distinction the defense is making, it turns out, is between \u201creplica explosives\u201d and \u201cexplosives.\u201d<\/p>\n

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\u2014so 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.)<\/p>\n

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\u2019 reliance interests is a \u201cpolitical and policy judgement.\u201d Judge Talwani points out that this returns her to the executive order, which supposedly shouldn\u2019t 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.<\/p>\n

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, \u201cwe often like the major questions doctrine.\u201d But he would argue that this case is simply \u201cnot as major\u201d as where said doctrine is typically applied. \u201cThere are a lot of adjectives,\u201d says Judge Talwani. Descriptions of the rule range from \u201cmodest\u201d to \u201cend of the world.\u201d But, \u201cas a practical matter, the rule is impacting\u201d\u2014she checks her numbers\u2014tens of millions of ballots. \u201cHow is that simply a minor little program?\u201d<\/p>\n

Adjectives are indeed \u201cnot the way to decide this,\u201d says the intervenors\u2019 lawyer. It turns out that he means money <\/em>is the way to decide: The Supreme Court\u2019s major questions cases, he posits, involved economic programs of hundreds of millions of dollars.<\/p>\n

Judge Talwani says she isn\u2019t a business court. \u201cSometimes,\u201d she says, \u201cthe people in front of me are people.\u201d This \u201cisn\u2019t just a question of dollars, it\u2019s a question of voting.\u201d So, if she finds based on the record before her that major disenfranchisement is likely, \u201caren\u2019t we right there? Or do I need dollars?\u201d<\/p>\n

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 \u201cpolitical question.\u201d<\/p>\n

The counsel for the intervening states says it would be \u201cradical\u201d to suggest that any mandatory USPS rule that \u201ccould potentially\u201d affect elections introduces a major question. (Along the way, the Justice Department appears to attempt to convince Judge Talwani it doesn\u2019t 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 \u201cdirected at\u201d elections, not just rules that happen to affect elections. The plaintiffs, unsurprisingly, agree.<\/p>\n

A \u201cTest Run\u201d for Elections: Remedies and Results<\/strong><\/p>\n

We return, fittingly, to where we began: that phantom portal around which this whole thing revolves.<\/p>\n

After the Justice Department lawyer is unable to answer Judge Talwani\u2019s inquiry as to what \u201ccertification,\u201d precisely, a state\u2019s election official must provide pursuant to the rule (he defers to the text of the rule, she says it isn\u2019t in the rule\u2014hence 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?<\/p>\n

\u201cWe\u2019d like to fully implement the final rule,\u201d the Justice Department non-answers.<\/p>\n

Does the portal go live? He \u201ccan\u2019t make representations.\u201d<\/p>\n

\u201cSo I have nothing in the record to show that\u2014,\u201d 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. \u201cOkay, we\u2019ve all been working really hard for a week,\u201d says Judge Talwani. \u201cAnd you can\u2019t tell me the government has the portal ready to go?\u201d<\/p>\n

She asks for a filing that afternoon, which does ultimately appear on the docket in the form of a declaration indicating that USPS anticipates \u201cbeing in a position to make the Portal available to users for voluntary use by sometime next week.\u201d The document also clarifies what the \u201ccertification\u201d pertains to.<\/p>\n

The intervening states are very clear in comparison as to what they plan to do after the ruling\u2014if they get their way and the judge limits any injunction to the plaintiff states. They would like to have \u201cthe option\u201d to comply fully with the rule, and simply being permitted to submit compliant ballots won\u2019t be enough if USPS isn\u2019t allowed to reject any non-compliant ballots they end up sending in. This would have the added benefit of yielding \u201creal-world evidence\u201d of the rule\u2019s impact.<\/p>\n

So we\u2019re going to do a \u201ctest run\u201d on this election? Well, \u201cin some states,\u201d yes!<\/p>\n

We\u2019re \u201cnot playing an intellectual puzzle game,\u201d Judge Talwani reminds him. \u201cWe\u2019re talking about people\u2019s right to vote.\u201d 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 \u201claboratory\u201d or \u201cexperiment,\u201d without risking disenfranchisement.<\/p>\n

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\u2014and that what is desired is to stop cities and counties from submitting flawed ballots. \u201cYou can do that with state law,\u201d says Judge Talwani. So the real <\/em>real question becomes: Why would you want election integrity in your state to be decided by the Postal Service?<\/p>\n

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.\u00a0 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\u2019ve gotten so far is exactly what Justice Jackson warned of: chaos.<\/p>\n

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Months away from elections, a federal judge worries President Trump’s mail-in voting executive order could cause disenfranchisement.<\/p>\n","protected":false},"author":1,"featured_media":556,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[],"class_list":["post-557","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-executive-branch"],"yoast_head":"\nUSPS Plays a 'Puzzle Game' With the Right to Vote - National Consumer Reports<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/nationalconsumerreportss.com\/?p=557\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"USPS Plays a 'Puzzle Game' With the Right to Vote - National Consumer Reports\" \/>\n<meta property=\"og:description\" content=\"Months away from elections, a federal judge worries President Trump's mail-in voting executive order could cause disenfranchisement.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/nationalconsumerreportss.com\/?p=557\" \/>\n<meta property=\"og:site_name\" content=\"National Consumer Reports\" \/>\n<meta property=\"article:published_time\" content=\"2026-09-04T14:09:44+00:00\" \/>\n<meta name=\"author\" content=\"admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"15 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=557#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=557\"},\"author\":{\"name\":\"admin\",\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/#\\\/schema\\\/person\\\/ef6e8820a5e2e961e9b8cda481436ac0\"},\"headline\":\"USPS Plays a ‘Puzzle Game’ With the Right to Vote\",\"datePublished\":\"2026-09-04T14:09:44+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=557\"},\"wordCount\":3063,\"commentCount\":0,\"image\":{\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=557#primaryimage\"},\"thumbnailUrl\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/wp-content\\\/uploads\\\/2026\\\/09\\\/dd58edfa5db240a3025bc1632a49c6f2.jpg\",\"articleSection\":[\"Executive Branch\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=557#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=557\",\"url\":\"https:\\\/\\\/nationalconsumerreportss.com\\\/?p=557\",\"name\":\"USPS Plays a 'Puzzle Game' With the Right to Vote - 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