No ‘special powers’: Trump’s mail-in voting order blocked again

Judge Talwani enjoined Trump’s order, finding it ‘threatens disenfranchisement of millions.”

Blocking Donald Trump’s executive order attacking mail-in voting, a federal judge reminded the government that the Constitution hands only states and Congress any powers over election administration.

“The Constitution does not grant the President any specific powers over elections,” U.S. District Judge Indira Talwani wrote in her latest injunction.

In a footnote, the judge quoted Alexander Hamilton’s “The Federalist Papers”: “[T]here were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former.”

Judge Talwani added: “Notably, the Framers excluded the Executive Branch from any allocation formulation.”

This is the third injunction that she has granted blocking Trump’s executive order. Two of them, issued in the cases of State of California et al v. Trump and League of Women Voters of Massachusetts et al v. Trump, came down before the U.S. Postal Service issued a Final Rule implementing the executive order. The Supreme Court paused one of them, finding the lawsuit wouldn’t be ripe until its implementation.

Her latest order sets the stage for another Supreme Court battle on the constitutional merits of the decision.

The Trump Justice Department is eager to initiate that legal battle.

Solicitor General John Sauer, who is one of Trump’s former criminal defense attorneys, already filed an application to pause an earlier temporary restraining order in an unusual maneuver leapfrogging over the First Circuit, which is the intermediate court of appeals. The ultimate outcome of the appeal could have national implications.

According to a whistleblower, the U.S. Postal Service’s rushed and flawed design of a mail-in voting portal can prevent “millions” of voters from ever receiving their ballots, potentially leading to “catastrophic failure” that can “derail” the midterm elections.

Without commenting on the whistleblower’s disclosure, the judge agreed with the scale of the possible failures.

The Postal Service’s implementation of Trump’s order “threatens disenfranchisement of millions of United States citizens who seek to vote by mail,” and the government could provide “no evidence relating to fraudulent mail voting to support the rushed implementation of the Final Rule,” the order states.

USPS issued the Final Rule fewer than 70 days before the midterm elections.

The order, however, allows states to voluntarily comply with the Postal Service’s Final Rule.

“At the same time, the court has not and will not order injunctive relief that precludes States from voluntarily complying with the Final Rule, consistent with their state laws,” the order states.

Texas sought the ability to participate in the federal government’s mail-in ballot scheme.

Read the ruling in full here.