A federal judge was shocked by a proposal to test President Donald Trump’s controversial new mail ballot rules on real voters this November as the Justice Department’s own lawyers struggled to explain it.
U.S. District Judge Indira Talwani heard nearly two hours of argument Thursday morning in a Boston courtroom, according to Democracy Docket.
Talwani is deciding whether to continue blocking a U.S. Postal Service rule that would allow the agency to refuse to deliver ballots in states that do not comply with demands made by President Donald Trump in an executive order.
That block expires next week, as Talwani issued the 14-day restraining order on Aug. 27 and refused to lift it Monday, Democracy Docket reported.
The Department of Justice was largely silent during the hearing, and its lawyers seemed not to understand the rules they were defending, Democracy Docket reported.
Instead, lawyers for Texas shouldered much of the defense. The state asked Talwani to block only mandatory compliance, so the Postal Service could still reject ballots in states that chose to go along with the rule voluntarily, the report noted.
Texas’s attorneys argued that the arrangement would give the court “real world evidence” of how the rule operates, according to the liveblog.
Democracy Docket said Talwani appeared “flabbergasted” at the suggestion.
“So we’re gonna do a test run on this election?” she asked. “We’re not talking about an intellectual puzzle game; we’re talking about people’s right to vote.”
Some 46.8 million Americans voted by mail in 2024, Democracy Docket reported, and Election Day is fewer than 70 days away.
The rule requires election officials to redesign the envelopes they use to send out mail ballots and to assign each one a unique tracking barcode, Democracy Docket reported.
States would also have to provide the Postal Service with a list of the names and addresses of everyone who requested a mail ballot for the upcoming election, according to the outlet.
The Postal Service has said it would refuse to mail ballots to voters in states and localities that fail to meet those requirements, Democracy Docket reported.
Talwani asked Texas’s attorneys what would happen if 9,999 people in Harris County could not vote because of an error with a single ballot, a scenario a whistleblower at the Postal Service had flagged in a report Tuesday, Democracy Docket reported.
“We just don’t see that as a real risk,” the state’s lawyer reportedly replied.
That whistleblower complaint warned the rule could trigger “mass disenfranchisement,” Democracy Docket reported.
Talwani said the Postal Service had never explained to the court how the rule would actually work, according to the outlet. The department filed no declaration estimating how many ballots the new requirements could affect.
“I have very little from you,” the judge said, growing “increasingly frustrated,” Democracy Docket reported.
The challengers filed several declarations warning that millions of ballots could go undelivered if the Postal Service forces states to comply, according to the outlet.
The department also argued that challengers must first take their complaints to the Postal Regulatory Commission, an executive branch panel that can take up to 90 days to respond, Democracy Docket reported. There were just 61 days until the November election.
“It’s a time question,” Talwani said, according to the outlet. “And I think we all understand a time crunch here.”
“We concede nothing,” the department’s counsel reportedly insisted as arguments wound down.
Michael Velchik, an attorney with the department’s Civil Division, told Talwani at the outset that the government would immediately appeal to the Supreme Court if she granted the injunction, according to the outlet.
Talwani said she would not rule from the bench but aimed to issue her decision as soon as possible, Democracy Docket reported. She gave the department until 3 p.m. to supplement the record.
“Now, it is essential that the court move quickly and decisively to block USPS from carrying out this unconstitutional and illegal rule,” said Celia Canavan, executive director of the League of Women Voters, Massachusetts, at a press conference outside the courthouse after the hearing, according to Democracy Docket.
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