Major update in Trump's effort to ban mail ballots by midterms

**Brian Tyler Cohen** (0:01)
We're going to make some sense of the ongoing litigation surrounding Trump's executive order banning mail-in ballots. And I've got three interviews. I'm joined by the Democratic Senate nominees in Maine and South Carolina, Troy Jackson and Annie Andrews, and Norm Eisen discusses Trump's latest beef with the Kennedy Center. I'm Brian Tyler Cohen, and you're listening to No Lie.
So here's the headline that caught my attention for all the wrong reasons. Just in, Judge Talwani has lifted her order of blocking the USPS rule on mail-in ballots for the 2026 elections. Talwani, clearly frustrated by the SCOTUS decision, says she has no choice and applies Supreme Court based on its ruling on flawed premises. So obviously, reading something like that might instill some degree of fear that Trump is succeeding in his bid to eliminate mail-in voting in accordance with his executive order in the lead up to the midterm elections. That is not the case. So here's a quick refresher on how we got here. Back in March, Donald Trump signed an executive order directing the postal service to only deliver mail ballots to voters on his pre-approved government list to use new envelopes with mandatory barcodes among other new edicts. This immediately triggered a wave of lawsuits, including one from a coalition of pro-voting groups and another from 23 Democratic-led states plus Washington, DC., led by California.
A federal judge in Massachusetts, Judge Talwani, issued a permanent injunction blocking the order, Trump's order, in the California case. The administration appealed that all the way up to the Supreme Court and on Monday, this week, the Supreme Court invalidated that injunction. That was what took over as the bad news that everybody had read about.
Now, here's the part that matters and the part that a lot of the panicked coverage is glossing over. The Supreme Court did not rule that Trump's executive order is legal. It didn't touch the merits at all of the executive order. What it said was purely procedural, that Judge Tawhani moved too fast, that the order was based on speculation about what the USPS would eventually do before USPS had actually published that final rule. But since then, the USPS has finalized the rule. So now the whole process can move forward. But I think what's interesting here is that the administration hasn't even tried to defend its executive order on the merits in any of those lawsuits. They have spent the entire fight hiding behind procedural arguments about standing and timing, an issue called ripeness, because they know that if court actually had to weigh in on whether Trump has the constitutional authority to dictate how mail ballots are administered, they lose every time. And don't take my word for it. It is literally in the Constitution.
Article 1, Section 4 is about as clear as constitutional text gets. The power to regulate the time, place and manner of elections belongs to the states and to Congress, not the executive branch. Trump doesn't get a vote on how Massachusetts or California or any other state runs its own elections. He cannot unilaterally rewrite the rules for mail-in ballots any more than he could unilaterally rewrite the rules for who counts as American citizens. This isn't even a close call on the merits. And it's telling that Trump's own Justice Department seems to know that, since again, they haven't even bothered making this substantive legal case.
Meanwhile, the Democratic-led states didn't just sit around while this whole process was playing out. They immediately filed a new lawsuit on Wednesday that called for a temporary restraining order on an expedited schedule. And in a separate case in DC on the same issue, Democratic plaintiffs renewed their own bid to block the order, arguing that now that the final rule exists at the hands of the USPS, the earlier procedural objections don't apply anymore either. So now they can actually litigate this thing on the merits. So in other words, the machinery of actually litigating whether this executive order is constitutional is now fully underway on multiple fronts. And this is a fight that Donald Trump has to actually win on the substance instead of hiding behind, well, you move too fast, which brings me to the timing question, because this is where I think people should actually feel better about the outcome here, not worse. There is a legal principle that I've spoken about at length. It's called the Purcell doctrine. It's basically the idea that the courts have to be reluctant to change election rules too close to an election because it creates confusion and chaos for voters and election administrators. It's usually invoked by conservatives who are trying to block last minute changes that favor Democrats. But now that same logic cuts against the Republicans. So, we're under three months out from the midterms, roughly 68, 69 days, litigating the actual constitutionality of this executive order, meaning full briefings, potential appeals, likely another trip up through the circuit courts. All of that takes time, a lot of time, time that Donald Trump does not have if the goal is to have this scheme fully implemented before November.