A second federal judge has ruled that the Trump administration’s plan to impose new checks on mail-in ballots is likely unlawful and should be blocked before the November election.
Judge Carl J Nichols, a Trump appointee in Washington, said the administration had not shown evidence of significant fraud that would result if the rule were halted. He warned instead that its implementation could mean a substantial number of valid absentee and mail-in ballots were not counted.
“The public has a strong interest in ensuring that doesn’t happen,” Judge Nichols wrote.
The Supreme Court is separately considering a similar ruling by Judge Indira Talwani, an Obama appointee in Massachusetts. She has repeatedly concluded that the policy was likely unconstitutional and could not be introduced so close to an election without risking the disenfranchisement of voters.
Judge Nichols’s decision followed a legal challenge brought by Democratic-aligned groups, including the Democratic Senatorial Campaign Committee, alongside civil rights organisations. The Massachusetts case was brought by Democratic state attorneys general and voting rights groups.
The plan originated in an executive order signed by Donald Trump in March. It directs the US Postal Service to preregister people sending ballots by mail and to refuse delivery of ballots from voters whose details have not been submitted by state election officials.
Judge says Postal Service lacks authority
Judge Talwani focused on the constitutional power reserved to states to run elections. Judge Nichols instead found that Congress had not given the Postal Service the statutory authority to carry out key elements of the policy.
“As the government concedes, the Postal Service could issue (and enforce) the rule only if Congress gave it the authority to do so, but here no statute grants the Postal Service the power to issue key parts of the rule,” he wrote.
He raised particular concerns about an online portal the Postal Service is developing for states to upload the names and addresses of voters considered eligible to vote by mail. The relevant laws, he said, did not authorise the agency “to create a data collection system for mail-in and absentee voters”.
Judge Nichols had declined in May to stop the Postal Service from drafting the regulation or to rule in advance that it would be illegal. The Supreme Court likewise decided last month that it was too early for courts to intervene.
However, after the regulation was finalised in August, he agreed to reconsider the matter and concluded that it should now be blocked. His ruling could provide an indication of how the Supreme Court may approach the dispute.
Several Republican-led states have told the courts they would adopt the procedure voluntarily and were preparing to comply if it were allowed to take effect. Voting rights groups have argued that keeping the lists accurate would be extremely difficult, particularly when voters had moved or recently registered in another state.
State election officials have warned that the policy could cause disruption, with mail ballots already distributed in some states. Judge Nichols said the rule appeared likely to produce “delays and mistakes” while the portal was being built and as the Postal Service checked whether voters matched the information recorded there.
He said the Postal Service was likely to handle “more than 50 million pieces of federal ballot mail” during the election season, and that the challengers had shown an increased risk that a significant number of otherwise valid ballots would not ultimately be counted.
