Opponents press USPS to drop Trump mail ballot rule after midterms

Republican-led states appeal injunction to the D.C. Circuit

“We should not allow a policy that threatens public confidence in the Postal Service neutrality to remain in place while its long-term status is debated in court,” Jonathan Smith, president of the American Postal Workers Union, said at a news conference in Washington, D.C., on Tuesday.

Chelsey Wininger, executive director of the Democratic Association of Secretaries of State, said at the same event that “This executive order is trying to force federal control over who can and cannot receive a ballot in the mail.”

The rule stems from an executive order Trump signed in March directing Postmaster General David Steiner to propose requiring states, at least 90 days before a federal election, to notify the Postal Service whether they intended to allow ballots to be sent through the mail. States would then have to submit to USPS at least 60 days before the election a list of voters planning to vote by mail.

The same executive order separately required the Department of Homeland Security, with help from the Social Security Administration, to compile a list of voting-age U.S. citizens living in each state and provide that information to state officials at least 60 days before each federal election. The order did not tell states how to use the data.

The U.S. Supreme Court blocked the Postal Service from implementing the rule for the midterm elections, but the decision applied only to this year’s elections, leaving the rule’s ultimate fate unclear. The court did not make clear its position on the mail ballot rule if it comes before it again. Justice Brett Kavanaugh, who agreed with the decision to halt the rule for the midterms, wrote in a concurring opinion that there was “at least a fair prospect” the rule falls within the Postal Service’s authority.

The rule’s future is being litigated on two tracks. U.S. District Judge Indira Talwani, an appointee of President Barack Obama in Massachusetts, issued a preliminary injunction halting USPS from implementing the rule after multiple lawsuits were filed against the executive order in the spring, and the Supreme Court declined to block that injunction. On Thursday, Republican-led states as well as Texas filed a notice in court that they will appeal the D.C. district court’s preliminary injunction to the U.S. Court of Appeals for the D.C. Circuit, kicking off the next round of legal fighting.

The Trump administration and some Republican states have argued the rule would provide additional security safeguards. Ahead of the election, Republican officials in 11 states, led by Missouri, urged a federal judge not to pause implementation of the rule. “The Rule — if implemented — would help bolster the security of mail voting in Missouri and reduce the risk of fraud,” Missouri Secretary of State Denny Hoskins, a Republican, wrote in an August court declaration. The other states were Alabama, Florida, Indiana, Kansas, Louisiana, Montana, Nebraska, Oklahoma, South Carolina and South Dakota. Hoskins’ office didn’t respond to a request for an interview this week, and the White House didn’t respond to a request for comment.

Democratic states argued the rule encroached on their power to run elections, noting that the U.S. Constitution assigns states the responsibility of administering elections.

When the Postal Service published the final version of the mail ballot rule in August, the agency wrote that the rule doesn’t place the Postal Service in the role of an election administrator or dictate how states run elections, and that states maintain complete control over their voter registration rolls and decide who votes by mail. “States also retain complete autonomy to determine the extent to which they utilize the postal system as an aspect of their elections,” the USPS statement said, adding that the rule was consistent with the Constitution. The Postal Service declined to answer questions from States Newsroom on Thursday, citing pending litigation.

The stakes reach beyond the litigating states. Eight states — California, Colorado, Hawaii, Nevada, Oregon, Utah, Vermont and Washington state — authorize all-mail elections, and nationwide at least 33.9 million mail ballots were cast in the November general election, according to the University of Florida Election Lab.

At a USPS Board of Governors meeting on Tuesday, board members didn’t discuss the mail ballot rule, according to a recording of the meeting posted to the Postal Service website. The meeting mostly focused on the agency’s difficult financial condition, though postal workers received praise for their performance during the election. “In this election, the USPS did exactly what we always do,” Steiner said. “We put our heads down and we got the job done.”