Legal AF by MeidasTouch - Trump Nightmare as Judge Enters Order Blocking His Mail in Ballot Scheme and Takes on SCOTUS

Starting point is 00:00:00 We've got some breaking and important news coming out of the district court in Massachusetts as Judge Talwani has now blocked Donald Trump's efforts to have the Postal Service interfere with mail-in ballots, and the states will not have to try to comply with a last-minute rule from last Friday that requires them, while early voting has already started, to design new envelopes approved by the post office and use a database to only deliver mail-in ballots to people on a Postal Service database. As Judge Talwani observed, there are only two entities under the Constitution that have the right to regulate federal elections.

Starting point is 00:00:38 One of them is the states. The other one is finally Congress. But the United States Postal Service is not one of them or any part of the executive branch. This is a big decision. This is the round-trip case back to the United States Supreme Court, inevitably next week. Some people thought last week's Supreme Court ruling, or this past Monday where the Supreme Court said, well, the states are too early and the issue isn't ripe yet because the Postal Service hasn't yet issued its regulation to try to control

Starting point is 00:01:09 mail-in ballots. Well, they have now. In fact, as the judge pointed out, they had already when the United States Supreme Court ruled, but they ignored it. Well, it's ripe now. The parties, the states, and the public interest groups that are combined in two cases up in front of Judge Talwani immediately filed a new complaint and amended their complaint to get the issue front and center with the judge. And in record time, in less than five days, she's now considered it on the papers, on the temporary restraining order, and on the argument she is ready to rule. And she has ruled. Now, she hasn't ruled on the preliminary injunction. The way that stays work is that you have an administrative stay. That's for hours or a couple of days. Then you have what's called a temporary

Starting point is 00:01:54 restraining order, then you have a preliminary injunction and finally a permanent injunction. They're similar in terms of the elements that a court has to find present before they issue such stays or blocks. It's really a durational thing. In any event, the court is always looking down to see who is likely to win at the trial when the trial is over. They do a little projection, looking under the hood at the case. They call it likelihood of success on the merits. And here, the plaintiffs, which are the states and the public interest groups, they have made out their case that they will be subjected to an unconstitutional order and have to scramble and all the chaos that will result in less than 80 days to the midterms. Michael Popak, you're on Friday on LegalAF. I couldn't wait to cover this story. We knew this was coming. In fact, I just interviewed a few people related to these issues in the last 24 hours, Mark Elias, who's got one of the cases, one of the major cases for the Democratic Party

Starting point is 00:02:58 down in the District of Columbia and the guru on all things voter protection. I also interviewed Nick Brown, who is the State of Washington Attorney General, and the head of the Democratic Attorney General's Voter Protection Task Force, and Rob Banta, the Attorney General of California, who is one of the lead plaintiffs in the case. And I'll show you, I'll bring those receipts. I'll show you what they said in the last 24 to 36 hours in anticipating this new order. This new order will be up on substack for you to read. It's only 11 pages long, but it is so powerful. We're not surprised.

Starting point is 00:03:34 Judge Talwani wanted to go first. She wanted to make sure her case was the one that was teed up for the United States Supreme Court. Last week on Monday, or this week on Monday, the Supreme Court said to the states, you're too early. You're complaining about a rule that's not even in place yet. Time will tell if it's unconstitutional, come back another day. Now, what Judge Talwani noted is that when they did that, the rule had already come out the Friday before. And we were all like, well, why aren't they acknowledging the existence of the rule?

Starting point is 00:04:10 They keep saying, well, if the rule ever comes. I asked Mark Elias exactly that. And Mark Elias had a very, very interesting response about sort of the laziness of the United States Supreme Court. play the clip. I suspect that they had gotten it written and agreed to by the end of last week. And then we're probably taken by surprise that late last Friday night, the U.S. Postal Service, then finalized their rule. And so by the time I got to Monday morning, we're ready to issue the opinion, they were not going to go back and renegotiate with each other changes to that document. And they were just like, ah, screw it. We're just issuing it, even though you are exactly right,

Starting point is 00:04:48 that it reads as a bit of a non sequitur because it keeps talking about how the Postal Service is not yet issued a rule and the Postal Service could issue a rule that's different than what Donald Trump wanted. And we're all scratching around and being like, the Postal Service just issued their rule two days ago, like on Friday night. So I think that that's what probably happened there. Now, here's how Judge Telwani addressed it on page three footnote four. She says the Supreme Court gave no indication that it was aware of the final rule by the post office when the order was issued. The defendants, of course, to Trump's side, they argue without citation that the publication of a final rule was known to the Supreme Court. Well, that's not what Mark Elias thinks. That's not what I

Starting point is 00:05:30 think. Although the government's supplemental brief regarding the final rule was docketed at the Supreme Court a few hours before the court entered its order, this court cannot assume that the Justices received the brief prior to the issuance of the Percurium order a few hours later. In any event, the order found a lack of standing based on the events of the complaint at that time. And events have changed. She quickly dispatched any argument that the government was now raising that this was too late in the game, just five days later from when they last argued, because, oh, we're just five days closer to the midterms and we're too close, you know, trying to invoke what we call the Purcell Doctrine, which is the Supreme Court made up fiction when they don't want to deal with

Starting point is 00:06:14 something or they want to give a win to one side, usually the Republican, they'll say, oh, we're too close to an election, can't make the ruling now, we'll deal with it later. Well, I don't think that applies when you're only talking about matters of hours or days. So she quickly found that the parties, the public interest groups, the League of Women Voters for the Massachusetts and the 20 or so states led by California that they had. standing. They have, this issue is ripe. It is appropriate to be in front of a federal judge, citing to things the defendant has said in the past. Now, this order coming out was not a shock to me so soon after all the papers were filed. I didn't think it was going to roll over to next week.

Starting point is 00:07:00 And neither did Nick Brown, the Attorney General of Washington State when he spoke to me in the last 36 hours. Here's my interview clip with Nick. You'll get an order. out of Judge Talwani, so will the League of Women Voters of Massachusetts, the ACLU. That'll come up to the First Circuit Court of Appeals, I guess, on an expedited track. And back to the Supreme Court and sometime in September. What do you think they're going to do? Well, first, I would start by, you know, as you were going through that, it's just a good reminder that we would benefit from having more judges on our Supreme Court with trial judge

Starting point is 00:07:31 experience, who actually know what happens at a district court level and have been there and done that because it was a good reminder of just sort of the absurdity. of it. I mean, the court did have to rule based on when the challenge was filed and the status of the process then. You know, I cannot imagine that we lose on the substance of this case. It would be directly contrary to the explicit words of the Constitution and all sorts of precedent because we control our elections. Congress obviously can implement laws to amend various portions of the elections, the timing and such, but the president certainly cannot be executive order, and that is what he is attempting to do. And so it would be quite absurd for the

Starting point is 00:08:15 Supreme Court to rule against the states. But I have a great deal of caution. I think as we all should. Okay. Now, let me move to how the judge got here. Page eight over to nine. It says, based on the record presently before the court, plaintiff states face irreparable harm when they are required to comply with a likely unconstitutional regulation for which compliance is practically impossible as to the 2026 midterm elections, now a little more than two months away. Most plaintiff states have already ordered their mail ballots. Now they've got to use some sort of U.S. Postal Service approved scan code ballot, you know, envelope, and some are required by state law to send them to eligible voters as early as next week. Plaintiff states have neither time nor funds

Starting point is 00:09:05 to design new mail ballots, seek approval of the new design. from the Postal Service, order production of mail ballots, update their own election management systems, train election officials to use the portal for the United States Parcel Service to upload citizen data and upload citizen data to the portal all before the midterms. Notably, the final rule of the post office includes no deadline or contemplated turnaround time for the United States Postal Service approval. So you submit it to them and they just sit on it. If plaintiff states are unable to comply with the final rule, an outcome that seems unavoidable, given the time frame, they will violate their obligations under the Constitution and state laws to administer elections.

Starting point is 00:09:47 In other words, Trump putting up these unconstitutional, executive branch postal service hurdles will make it impossible for the states to execute their constitutional duty to properly administer elections. Trump doesn't care about this. We just had a reporter asked Trump about how are states' support? to do this? Like North Carolina is already voting. You know, his response was something about his golf game. Play the clip. The Supreme Court earlier this week ruled on mail-in ballots. And there are states like North Carolina that have ballots that go out next week. How are states supposed to implement this? Well, there is. They're a, they're able for it. North Carolina is great. It's a great place.

Starting point is 00:10:29 I want to go three times. And they do some mail-in ballots. But basically, they ruled on the legitimacy. and the way we want to make them legitimate. And it was a great ruling for the Republican. And then back to Judge Talwani's answer, or order, she says on page nine, plaintiff organization members are at risk. These are the League of Women Voters and other groups of irreparable harm where they face significant risk

Starting point is 00:10:56 of disenfranchisement and interference with their rights under state laws, where they rely on mail-in voting due to age, disability, and or residents. My mother for years lived in an assisted living facility, physically unable to go to the polls, but she wanted and did vote. In fact, I just interviewed Rob Bonta, the Attorney General of California, about this case, and here's what he had to say. How quickly do you get back to the United States Supreme Court and what do you think they're going to do? This is the second time now.

Starting point is 00:11:24 They've taken on Donald Trump's attempts to screw with mail and balance. Yeah, the federal government probably is eager to get back to the United States Supreme Court. but I just, I think this is an open and shut case, Michael. It's, you know, there's a clause of the U.S. Constitution that's right on point that that governs the issue, just like in birthright citizenship. In birthright citizenship, it was the citizenship clause, which showed that the executive order of the president trying to undermine the components of that clause were unlawful. And here, it's the elections clause, which says that the states, and to a degree, Congress,

Starting point is 00:11:58 determine the manner of our elections, just determine how they, are administered and how they occur, not the President and not the United States Postal Service. So the President and the United States Postal Service are trying to take over a key component of our elections across this country, vote by mail, and the Elections Clause of the U.S. Constitution doesn't allow them to do that. I think it's very clear. You're right that the U.S. Supreme Court's decision earlier this week was procedural and procedural only.

Starting point is 00:12:24 It just dealt with the timing. But the substance, and in that order, that emergency docket order by the U.S. Supreme Court, they went out to their way. way to say, we are not addressing the merits. We're not addressing the legality of the underlying substance of the conduct of the president in the U.S. Postal Service. They said, time will tell. There was so cavalier and smug, though. Time will tell. Time is the thing we don't have. So here's how she concludes her order, Judge Talwani. It's a 14-day stay block of the implementation or enforcement of the United States Parcel Service or Postal Service,

Starting point is 00:13:01 final rule about ballots, about mandatory use of a database, about the portal, et cetera, et cetera. She then ordered that the defendant's counsel within 24 hours of receiving this order give notice to the Postal Service defendants and their employees, that they have to comply with the law under penalty of contempt. And then she says, by the way, the next level of a more durable injunction, a preliminary injunction, I'm still considering it, which is why she's giving herself those 14 days. Now, could the Trump administration run to the Supreme Court on a temporary restraining order and get some attention there on an appeal? Well, first, they're going to have to come up through, I think it's either Justice Sotomayor or Justice Kagan for the First Circuit.

Starting point is 00:13:57 they get the first right to decide whether there's an emergency here that needs to be considered. And they could just deny it. Also, generally, the Supreme Court doesn't like temporary restraining orders coming up to them. They wait for the preliminary injunction. But it doesn't stop the Trump administration from trying it in their bag of tricks. So we're going to, this is a fast moving story. Then you've got the cases down in front of Judge Nichols, led by Mark Elias and others. that's also teed up for this very issue.

Starting point is 00:14:28 So either way, we're going to be seeing a round trip back to the United States Supreme Court in the next week or two, ticking off, burning off more time between now and the midterms. What the Supreme Court should do is declare once and for all that the executive branch has no ability through the post office to screw with mail-in ballots or to hamper or hinder or burden the states in their running of the elections under the Constitution. That's it. Make the declaration, you know, that, you know, put it out, put it out of its misery, all of these arguments, put the Trump administration out of our misery, and make that ruling. That's what we need. Okay, I'm going to continue to follow it right here on Legal AF. You're going to updates throughout the day on

Starting point is 00:15:16 Substack with me. Until my next report, I'm Michael Popok. Can't get your fill of Legal A.F. Me neither. That's why we formed the Legal A.F. Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing in the oral argument there, including a daily roundup that I do call, wait for it, morning A.F. What else? All the other contributors from LegalAF are there as well. We got some new reporting. We got interviews. We got ad-free versions of the podcast and hot takes. Where legal A.F on substack. Come over now to free subscribe.

Starting point is 00:15:54 You know,

Legal AF by MeidasTouch - Trump Nightmare as Judge Enters Order Blocking His Mail in Ballot Scheme and Takes on SCOTUS

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