As predicted by pretty much anyone with the slightest grasp of legal procedure, Judge Indira Talwani granted a temporary restraining order against the implementation of the United States Postal Service’s new rules that would have enabled it to refuse to deliver mail-in ballots for the midterm elections. Sure, the Supreme Court issued its ruling that the prior TRO was premature as it wouldn’t be ripe until final rules were issued, which ironically came the day after the final rules were issued. It was a monumental waste of time, resources and angst, but it gave Trump a day of crowing about his great victory.
The following day, Judge Talwani vacated her other stay based upon the Supreme Court ruling, as new motions were filed now that the final rule was in place. And as day follows night, the judge granted the stay.
On March 31, 2026, President Donald J. Trump issued Executive Order No. 14399, Ensuring Citizenship Verification and Integrity in Federal Elections. Litigation ensued before a final rule issued. On emergency review, on August 24, 2026, the United States Supreme Court concluded that this court lacked jurisdiction to review challenges to the EO’s constitutionality where it was speculative as to whether the USPS would (1) propose a rule; (2) weigh the comments; and (3) issue a final rule consistent with the EO’s directives. The Supreme Court admonished this court that “[f]ederal courts review final rules, not proposed rules––and certainly not antecedent internal directives to propose a rule.” The Supreme Court explicitly noted, however, that the disposition of the government’s emergency application “does not mean that any measure taken by the Government to implement the Order will necessarily be lawful[.]”
This was, of course, an exercise in futility, which is something that SCOTUS could have doctrinally taken into account. The law does not require an exercise in futility. The Supremes used to care about the futility doctrine, but that would have made Trump angry. CJ Roberts desperately wants to avoid a frontal constitutional clash with Trump, even if it meant issuing an emergency stay that had the longevity of a fruit fly.
Judge Talwani found that the USPS rules were both untenable in practice, coming too late for compliance even if compliance was mandated, and likely unconstitutional in any event. Who could have possibly seen this coming?
She wrote that a group of Democratic-led states that had sued “face irreparable harm where they are required to comply with a likely unconstitutional regulation for which compliance is practically impossible as to the 2026 midterm elections, now little more than two months away.”
“Most plaintiff states have already ordered their mail ballots, and some are required by state law to send them to eligible voters as early as next week,” she added.
The new rules not only had novel requirements for mail-in ballot envelopes, but required states to await USPS approval of the envelopes (with no time frame provided for approval), and then provide USPS with the voter information about every person entitled to receive a ballot to be uploaded to a USPS portal before the postal service would deliver the ballot to the voter.
She ticked through a list of requirements that state election officials would be required to meet to ensure delivery of ballots, including receiving the agency’s approval for new envelope designs and submitting voters’ information into an online portal run by the Postal Service.
“Where a state or local election official does not obtain envelope and return envelope design approval, or does not upload voter information, or does not include unique intelligent mail bar codes on ballot envelopes, the U.S.P.S. will not mail ballots to voters,” she concluded.
The postal service contended that it was both too late to alter its scheme, and that its rules did not mean that the postal service got to decide who was worthy of receiving a ballot.
“U.S.P.S. will not scrutinize those decisions or alter that information in any way — instead leaving it entirely up to the states to accurately and lawfully identify its residents who are eligible to vote by mail,” the filing said. “The Postal Service will not determine voter eligibility, ballot content, mailing or receipt deadlines, or ballot-counting procedures.”
Then why did Trump issue his Executive Order? Why did the USPS issue its final rule? Why, oh why?
Instead, it described the changes as minor logistical improvements and streamlining, such as requiring voters to submit their addresses ahead of time to improve processing. It said the changes were designed “as a matter of the Postal Service’s own judgment.” Lawyers for the service argued it is authorized to adopt mail rules under statutes adopted by Congress.
Minor logistical improvements? Streamlining? That was the best they could do?
The United States Postal Service said it will not implement its new rule unless the courts “explicitly” permit it. Whether this will be the case remains to be seen, but at least for the time being, another attempt to impair the franchise has been stayed. It remains to be seen which side of the Purcell Principle captures the Supreme Court’s majority, of whether any or the other mechanisms to impair the right to vote will be employed instead.