States and voters warn appeals court that granting Trump's proposed vote-by-mail rule would 'get rid of' mail-in ballots

As Election Day fast approaches, the drama over the fate of mail-in voting during the upcoming midterms shows no signs of letting up.

On Tuesday afternoon, two groups of plaintiffs separately implored a federal court of appeals to maintain what more or less amounts to the status quo by keeping a temporary restraining order (TRO) in place.

The TRO bars the U.S. Postal Service (USPS) from enforcing the agency's recently promulgated rule, Ballot Mail for Federal Elections. The rule seeks to make good on an executive order issued by President Donald Trump to restrict mail-in voting by instituting a federal takeover of state-based systems.

The current relief barring the rule's application has a long provenance — and was the result of multiple lawsuits before the same judge in Massachusetts.

One group of plaintiffs won relief before the other, with distinct challenges to the executive order undergirding the eventual rule — but both groups of plaintiffs had their preliminary injunctions fall by the wayside after the U.S. Supreme Court issued a 6-3 ruling in the Trump administration's favor late last month.

Then, in a whipsawing flurry of motions and additional rulings, the two main groups of plaintiffs quickly reset the formal makeup of their legal challenges. And, nearly as soon as the USPS rule was issued, the same judge who had enjoined the executive order enjoined the rule.

On Friday, despite a general rule prohibiting an appeal of a TRO, the government appealed the TRO issued to cover both cases.

On Monday, in similar but formally different fashion, the government asked the U.S. Court of Appeals for the 1st Circuit to stay the TRO pending appeal in a 26-page emergency motion.

Now, the two groups of plaintiffs — several states and the League of Women Voters — insist the government cannot obtain such relief because there is no emergency and the district court is acting fast.

"Here, the TRO expires in just 9 days; the district court is proceeding rapidly toward a decision on plaintiffs' preliminary-injunction motion; the assertions of USPS and intervenors that they will suffer irreparable harm over the next 9 days are unconvincing; and no part of the TRO 'act[s] as a mandatory injunction requiring affirmative action,'" the states say. "This Court thus lacks appellate jurisdiction."

The league plaintiffs also claim the compressed timeline works against the government's bid for emergency relief because the TRO is meant to "prohibit USPS from unlawfully rejecting ballot mail" while the court considers a motion for a longer injunction "which is fully briefed and scheduled for a hearing the day after tomorrow."

Not content with procedural challenges to the appellate court's authority, both groups of plaintiffs argue the merits as well.

The states, in the first sentence of their 37-page opposition motion, focus on Trump's professed desire to "get rid of MAIL-IN BALLOTS."

They argue that maintaining the status quo would keep mail-in balloting viable for the approaching election but would also avoid the literally impossible task of trying to comply with the rule.

"In some States, it would be impossible at this point to comply with the last-minute rollout of USPS' novel ballot-verification program," the motion reads. "In other States, there will be chaos."

The states elaborate on the alleged chaos:

State and local elections administrators will have to scramble to obtain USPS approval of new ballot envelope designs on an unprecedented timetable; purchase new envelopes to replace those already ordered and ready to mail; develop and upgrade technological systems … and attempt to educate voters on USPS' massive changes—all in the span of just a few days or weeks.

"Each step of this process is fraught with an extreme risk of error," the states' opposition motion goes on. "And an error at any step threatens to deny ballots to many voters."

In no uncertain terms, the states say that the end of mail-in voting "is exactly what a stay in this case would allow" Trump "to accomplish with respect to the upcoming midterms."

The league's own 37-page motion notes that, legally, "only" the states and Congress have authority to administer elections.

"And Congress has not delegated any authority to the President or USPS to intervene in election administration policies," the group says.

Timeline concerns are also prevalent.

"Plaintiffs are in a crucial period, in the weeks before election day, assisting and educating the many eligible voters who are requesting their mail ballots or deciding whether to request one," the motion reads. "They lack sufficient time to complete the work necessary to be prepared for the Rule's implementation."

Both motions also repeatedly mention whistleblower allegations of likely "catastrophic problems" and "catastrophic failure" should the rule be "rushed" into implementation for the midterms.

As Law&Crime previously reported, the whistleblower allegations were just made public on Monday. The plaintiffs quickly incorporated them in their Tuesday filings.