A federal judge appeared inclined on Thursday to extend a temporary block on President Donald Trump’s plan for the Postal Service to establish new tracking and verification standards for mail ballots.
U.S. District Judge Indira Talwani repeatedly questioned whether the Trump administration had adequately explained how the policy would work with 70 days remaining before the midterm elections.
“I have nothing from the USPS about how this will happen,” Talwani told Justice Department attorney Michael Velchik during the nearly two-hour hearing.
Talwani, a nominee of former President Barack Obama, said she would try to issue a written decision by Thursday afternoon. Her existing 14-day temporary restraining order expires next week.
Case returns after Supreme Court intervention
The dispute has already reached the Supreme Court once.
Talwani previously blocked implementation of Trump’s executive order, but the Supreme Court lifted that injunction last month after concluding the challenge was premature because the USPS had not issued a final rule. The justices did not decide whether the eventual policy would be lawful.
The USPS published its final rule shortly before the Supreme Court acted. Twenty-four Democratic states, the District of Columbia, and voting organizations then renewed their challenges, allowing Talwani to assess a completed policy rather than a proposal. She issued the current short-term block while considering a preliminary injunction.
The rule would require mail-in ballots to be stamped with official Election Mail markings and to be sent inside automation-compatible envelopes with unique Intelligent Mail barcodes. Election officials would submit voters’ names, addresses, and corresponding barcode information through a federal portal. The policy is intended to help the USPS track mail-in ballots more closely and to ensure ballots only get sent to eligible voters.
The administration describes those measures as modest, lawful standards for sensitive mail. Barcodes are already commonly used by the USPS and commercial mailers, and states would retain responsibility for determining voter eligibility.
Texas proposes voluntary rollout
During the hearing on Thursday, an attorney for Texas, which supports the USPS policy, proposed blocking only mandatory compliance while allowing willing states to use the system, giving the USPS “real-world evidence” of its operation.
“So we’re going to do a test run on this election?” Talwani asked in response. “We’re not talking about an intellectual puzzle game. We’re talking about people’s right to vote.”
Texas argued that there is no demonstrated, substantial risk of disenfranchisement. A lawyer for the Justice Department indicated at the outset of the hearing that the government would quickly appeal an injunction, potentially returning the dispute to the Supreme Court.
Whistleblower claim and USPS response
Talwani’s concerns partly reflected an anonymous disclosure on Tuesday, furnished by the nonprofit group Whistleblower Aid, alleging the portal was rushed and that one failed barcode scan could cause an entire ballot batch to be returned.
The whistleblower also alleged the USPS improperly continued developing the portal while Talwani’s earlier injunction was in effect. But that allegation is muddied in part because the Supreme Court lifted the order on Aug. 26 on the grounds that the legal challenge preceded a final rule.
In a lengthy statement issued Tuesday, the USPS denied defying the court, saying its work “has at all times been conducted in a manner consistent with court orders.” The agency noted that Talwani expressly allowed it to develop the portal and discuss design standards with states voluntarily. It said verification procedures prohibited by the temporary order are not being performed.
The USPS said it has spent months creating a secure, efficient portal and will provide election officials with presentations and other resources as it becomes available for voluntary use.
The published rule does not expressly establish the whistleblower’s claimed zero-error threshold, and the complaint included no internal testing data or records showing ballot batches had been rejected.
CONSIDER THE SOURCE: WHAT TO KNOW ABOUT USPS MAIL-IN BALLOT RULE AMID WHISTLEBLOWER CLAIMS
Notably, Whistleblower Aid was co-founded by Trump critic Mark Zaid, who represented the intelligence community whistleblower associated with Trump’s first impeachment, and John Tye, a former Southern Poverty Law Center researcher.
“I’m not the final word,” Talwani said as the hearing ended, adding that repeatedly shuffling the case between her court, the 1st Circuit Court of Appeals, and the Supreme Court “doesn’t do anybody any good.”