A federal judge on Thursday expressed concern that if she allowed the Trump administration to move ahead with plans to restrict mail-in ballots ahead of the November election, it could cause so much chaos that states would experience “major disenfranchisement.”
During a winding two-hour hearing in Federal District Court in Boston, Judge Indira Talwani asked sharp questions of attorneys from the Justice Department and a coalition of Republican states about how they believed they could implement the new rule on the eve of early voting across many states. The hearing highlighted concerns raised by a broad coalition of nonprofits and Democratic states that, if allowed to forge ahead with the new rule, the Postal Service could haphazardly reject thousands of valid ballots.
Judge Talwani last week blocked the Postal Service from implementing the plan for 14 days, a period that expires Sept. 10. Thursday’s hearing was intended to help her decide whether to extend her injunction indefinitely. The Trump administration has already appealed her temporary restraining order and the issue is likely to be settled by the Supreme Court.
The judge did not immediately rule on the issue, but said she planned to move quickly.
With just two months to go before the election, and many states set to begin distributing mail-in ballots later this month, Judge Talwani wondered aloud why the rule change could not wait until the agency had time to execute it methodically.
“I think that’s what’s so puzzling to me about this case,” Judge Talwani said.
Judge Talwani previously ruled that she believed the Postal Service’s plans likely exceed the agency’s legal mandate from Congress.
Lawyers representing the Postal Service argued on Thursday that the plan represented an “independent exercise” of its authority to regulate the mail it carries. Judge Talwani countered that the rule seemed obviously tied to directions from President Trump outlined in an executive order signed in March.
Mr. Trump issued the directive as part of efforts to press his false claims that mail-in balloting is marred by widespread fraud. It instructed the Department of Homeland Security to compile state-by-state citizenship lists and then send those to each state. It further directed the U.S. Postal Service to play a role in verifying voters eligible to cast ballots by mail.
The Postal Service rule, published in late August in response, would require states to use new, scannable ballot envelopes. The Postal Service would not deliver mail ballots in states that do not share voter data with the agency and would only deliver ballots that met certain criteria.
Among other things, Judge Talwani tried to establish how much progress the Postal Service had made in building a ballot screening system that state election officials would use to inform U.S.P.S. which voters had been authorized to vote by mail and allow the service to verify ballots before delivery.
The Postal Service has said it continues to build the portal, despite the judge’s order, in case the legal block is lifted or in case some states choose to use it. But a whistle-blower report filed this week raised concerns that the frantic effort to finish the web portal in time would lead to errors that could result in large batches of ballots being rejected in bulk.
When Michael Velchik, an attorney from the Justice Department, could not explain the status of the project, Judge Talwani ordered the government to provide more details in writing by Thursday afternoon.
“So we’re going to do a test run on this election?” she said, showing exasperation.
“We’re not playing an intellectual puzzle game,” she added. “We’re talking about people’s right to vote.”
In another pointed exchange, Judge Talwani brought up a filing from officials in Travis County, Texas, which includes the Democratic-led city of Austin. They said they did not believe it was possible for local officials to implement the Postal Service changes in time for the 2026 election.
Even so, the state of Texas is part of a coalition of Republican-led states that have urged Judge Talwani to lift her restraining order.
She pressed Louis J. Capozzi, the Missouri solicitor general, who appeared on behalf of the group, about why Texas appeared intent on launching an “experiment” that could cause its own voters to be “disenfranchised.”
“Why is it you want U.S.P.S. to stop batches of ballots from your voters?” she said.
Judge Talwani said state legislators in Texas and other states could have passed their own laws to change ballot envelopes or otherwise adjust mail-in voting, without asking the Postal Service to take on a new role screening votes.
“You can decide you want those measures in your state,” she said. “I don’t understand — you come to me and say, ‘We really want to have election integrity in our state decided by U.S.P.S.’?”
Mr. Capozzi predicted that Texas would have no trouble implementing the changes in time, and that the state viewed the Postal Service rule as adding another layer of security to its elections. He said problems that might arise from the new rule could be figured out on a “state-by-state” basis later, with groups suing individual states if evidence emerged that they had improperly thrown out votes.
“With respect, the Travis County election official doesn’t speak for the state,” he said.
“Texas has an interest in the integrity of its elections,” he added.
Anne P. Bellows, a lawyer with the California attorney general’s office representing the more than 20 Democratic-led states who sued to stop the rule, said the case presented critical separation-of-powers questions. The Supreme Court, she said, has required that sweeping political and economic actions by the executive agencies be authorized by clear and direct language from Congress, a principle broadly promoted by conservative legal thinkers known as “the major questions doctrine.”
Judge Talwani appeared to agree, waving off a comment from Mr. Capozzi that the case before her “seems not as major” as others the Supreme Court had in mind when it required Congress to clearly delegate authority to federal agencies.
“It isn’t just a question of dollars,” she said. “It’s a question of voting here.”
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