Trump Nightmare as Judge Enters Order Blocking His Mail in Ballot Scheme and Takes on SCOTUS

0:00Michael Popok: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.

0:38Michael Popok: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 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.

1:18Michael Popok: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 that 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 restraining order.

1:55Michael Popok: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 in all the chaos that'll result in less than 80 days to the midterms.

2:39Michael Popok:I'm Michael Popak. You're on Friday on Legal AF. 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 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 Bonta, the attorney general of California, who is one of the lead plaintiffs in the case.

3:19Michael Popok: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. 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.

3:57Michael Popok: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? 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 were probably taken by surprise that late last Friday night, the U.S. Postal Service then finalized their rule.

4:35And so by the time they 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, that it reads as a bit of a non sequitur because it keeps talking about how the Postal Service has 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 our head and being like, the Postal Service just issued their rule two days ago, like on Friday night.

5:04So I think that that's what probably happened there.

5:06Michael Popok: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, the Trump 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 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 per curiam order a few hours later.

5:45Michael Popok: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 a Supreme Court made up fiction when they don't want to deal with something or they want to give a win to one side. Usually the Republican will say, oh, we're too close to an election.

6:19Michael Popok: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.

7:00Michael Popok: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 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 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.

7:40I mean, the court did have to rule based on when the challenge was filed and the status of the process then. And, 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 Supreme Court to rule against the states. But I have a great deal of caution, I think, as we all should.

8:20Michael Popok: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're going 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.

9:02Michael Popok:Plaintiff states have neither time nor funds to design new mail ballots, seek approval of the new designs 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. If plaintiff states, 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.

9:48Michael Popok: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 ask Trump about how are states supposed 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?

10:25Well, they're able to figure it out. North Carolina is great. It's a great place. I won a goal 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 Republicans.

10:42Michael Popok: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 of disenfranchisement and interference with their rights under state laws, where they rely on mail-in voting due to age, disability, and or residence. 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.

11:19Michael Popok: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 they've taken on Donald Trump's attempts to screw with mail-in ballots. 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.

11:54And here, it's the Elections Clause, which says that the states, and to a degree Congress, determine the manner of our elections, 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.

12:24It 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 of their 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 and the U.S. Postal Service. They said time will tell.

12:43Michael Popok:I was going to say, 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 Postal Service's final rule about ballots, about mandatory use of a database, about the portal, etc., etc. etc. She then ordered that the defendants 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.

13:37Michael Popok: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. They get the first right to decide whether there's an emergency here that needs to be considered. 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.

14:18Michael Popok:So 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. 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.

14:58Michael Popok:That's it. Make the declaration, you know, that, you know, 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 update throughout the day on Substack with me. Until my next report, I'm Michael Popak. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF 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 and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF.

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