The Trump administration has asked the US Supreme Court to allow it to revive a plan restricting mail voting before November’s midterm elections, after a federal judge temporarily blocked key parts of the scheme.
In an emergency application filed on Thursday, Solicitor General D John Sauer urged the justices to lift the order preventing the US Postal Service from enforcing new requirements for federal ballot mail.
Under the plan, the Postal Service could refuse to deliver ballots from states that did not provide voter information to a federal system. Ballot envelopes would also have to meet new design standards, including the use of individual barcodes, before they could be accepted.
The administration said the lower court’s intervention was causing “serious irreparable harm” to the federal government, the states and voters. It has argued that the Postal Service possesses the legal authority to impose the rules under federal law.
The appeal came hours after Judge Indira Talwani, sitting in Massachusetts, raised concerns that the changes could create confusion on a scale that led to “major disenfranchisement” during the forthcoming elections.
Judge Talwani has placed a temporary block on the Postal Service’s rule, which was published in August after the Supreme Court declined to intervene in an earlier challenge. The justices had said that case was premature because the administration’s plans had not yet been finalised.
The court’s conservative majority did not decide whether President Donald Trump’s wider mail-voting order was lawful. It said only that the challenge had been brought too soon, leaving the administration free to return once the Postal Service had issued its regulations.
Democratic state attorneys general, voting rights organisations and civil rights groups say the rules unlawfully transfer responsibility for election administration from the states to the federal executive. The administration disputes that interpretation, maintaining that the Postal Service would regulate the handling of mail rather than decide who was eligible to vote.
The final rule would require states to upload the names and addresses of people due to receive mail ballots to a Postal Service online portal. It would also establish state-specific participation lists, although the agency has said it would not determine voter eligibility, maintain voter rolls or count ballots.
The dispute began after Mr Trump signed an executive order in March directing the Department of Homeland Security to compile lists of citizens and requiring states to share voter information with the Postal Service. The order instructed the agency to limit the delivery of mail ballots to people appearing on those lists.
Judge Talwani first blocked the order in June, ruling that the Constitution gives states, rather than the executive branch, responsibility for regulating elections. The Supreme Court later set aside that decision on procedural grounds, but the judge issued a fresh freeze on August 27 after the Postal Service published its rule.
At Thursday’s hearing, the administration indicated that it could seek immediate Supreme Court intervention rather than wait for the normal appeals process to run its course. The justices have asked challengers to respond by 10am on Tuesday, September 8.
The timing is critical. North Carolina is due to begin sending mail ballots to military and overseas voters on Friday, September 4, while other states are expected to start distributing them later this month.
A Postal Service official told the Massachusetts court that the agency was continuing to refine its ballot-screening system and expected to make it available to states for voluntary use during the week beginning September 7. But every further delay could make it harder to overcome the legal, technical and logistical obstacles involved in applying the changes before the November 3 election.
