As the Supreme Court weighs the legality of a Trump administration plan to change mail-in balloting, a second lower court judge ruled overnight on Sunday that the plan is likely illegal and should be blocked before the November election.
The ruling by Judge Carl J. Nichols, a Trump appointee, delivered another blow to President Trump’s effort to add new conditions that could make it harder to vote by mail and easier for the federal government to scrutinize state voter rolls while searching for evidence of fraud.
The Supreme Court is considering a similar ruling by a different federal judge based in Massachusetts. Judge Indira Talwani, an Obama appointee, has repeatedly found that the plan is likely unconstitutional and could not be implemented so close to the election without disenfranchising voters.
Judge Nichols, of the Federal District Court in Washington, wrote that the Trump administration had not identified any “evidence that there will be significant fraud in the upcoming elections” if he halted the rule. On the other hand, he wrote, there was an “increased risk that a significant number of otherwise appropriate absentee or mail-in ballots will ultimately not be counted in the upcoming elections” if the rule took effect.
“The public has a strong interest in ensuring that doesn’t happen,” he wrote.
Judge Nichols’s ruling came in a lawsuit brought by a coalition of Democratic-aligned groups, including the Democratic Senatorial Campaign Committee, as well as a number of civil rights organizations. The Massachusetts suit was brought by a coalition of Democratic state attorneys general and voting rights groups.
Judge Nichols ruled in May that he could not stop the Postal Service from drafting the rule or preemptively declare it would necessarily be illegal before it was finalized. The Supreme Court similarly ruled last month that it was premature for the courts to intervene to stop Mr. Trump’s plan.
But Judge Nichols said he would review the issue after the Postal Service finalized the regulation, which it did in August. His finding that the proposal now should be blocked could offer a preview for how the justices view the issue.
The new rule stemmed from an executive order Mr. Trump signed in March, directing the Postal Service to preregister voters casting their ballots by mail, and decline to deliver ballots from anyone whose information was not submitted by their state election officers.
Judge Talwani, who considered the separate legal challenge in Massachusetts, had found that the rule likely violated the constitutional authority given to states to run their own elections. But Judge Nichols focused on another issue: the absence of any federal statute by which Congress gave the Postal Service the power to screen voters.
“As the government concedes, the Postal Service could issue (and enforce) the rule only if Congress gave it the authority to do so, but here no statute grants the Postal Service the power to issue key parts of the rule,” he wrote.
He focused on an online portal the Postal Service has said it is building that would let states upload the names and addresses of voters they deemed eligible to vote by mail. The relevant laws do not authorize the agency “to create a data collection system for mail-in and absentee voters,” he wrote.
Despite the lawsuits, a number of Republican-led states have indicated in court that they would voluntarily adopt the new procedure and were taking steps to comply if the courts ultimately allowed it.
Voting rights groups had argued that it would be nearly impossible to ensure the lists were up to date or counted people who had moved or recently registered in a new state. They warned that the new rules would very likely lead to improperly rejected ballots.
State election officials have warned the plan could cause chaos. In some states, mail ballots have already been distributed to voters.
Judge Nichols appeared to agree, writing that the rule appeared certain to cause “delays and mistakes” at several stages. That could include the building of the portal, which has not yet opened, and the Postal Service’s new role screening outbound ballots and “confirming that each absentee and mail-in voter matches information in the portal,” he wrote.
“Plaintiffs have demonstrated that there is an increased risk that a significant number of absentee or mail-in ballots will ultimately not be counted,” he wrote, noting that the Postal Service was likely to handle “more than 50 million pieces of federal ballot mail” this election season.
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