Trump Spirals as SCOTUS Refuses to Grant Block to Allow Postal Service to Refuse to Deliver Ballots

0:00Michael Popok:One third of Americans vote by mail and things are moving fast and furious in the courtrooms despite Labor Day weekend. We've got a new ruling by Judge Talwani up in Massachusetts, which attempts to block the Trump administration from weaponizing the Postal Service to deny you and me our mail-in ballots unless a certain envelope is used, unless it scans properly, unless a portal of data that isn't even operational is used by the states. No, says Judge Talwani. And now the Solicitor General representing Donald Trump has returned to the United States Supreme Court and asked for another administrative stay and asked for another block of Judge Talwani's new preliminary injunction right before the start of Labor Day.

0:48Michael Popok:Things have been moving so fast in the last 24 hours. There's been a TRO, a temporary restraining order by Judge Talwani, and an attempt to block it. A United States Supreme Court who refused to do an administrative stay and set a new briefing schedule for Tuesday. And then a new preliminary injunction and a new attempt to block it and a new briefing schedule all coming through Ketanji Brown Jackson. Jason, you won't be confused, but I'm done with this video on Labor Day Monday celebrating workers here on Legal AF. I'm Michael Popok. OK, how did we get here? Back in March, Donald Trump decided he's going to start screwing with mail-in ballots.

1:27Michael Popok:One third of Americans vote by mail. Some states even have universal mail-in balloting. They only vote by mail like the state of Washington. 27 states in America allow you to vote by mail without an excuse. Another 13 say, well, come up with an excuse and we'll give you the mail-in ballot. So it has been part of America culture of voting since the Civil War. Postal service is supposed to be a ministerial body delivering the mail, not deciding who lives and dies, who gets a ballot, who doesn't get a ballot, that the state has said, you're an authorized voter, here's your ballot, mail. And under Donald Trump, the post office would say, oh, no, we're not delivering it.

2:09Michael Popok:Oh, you're not in the portal. You're not here. You're not there. The envelope doesn't fit. Yeah, forget it. So Judge Talwani has two major cases in front of her joined into one. 23, I think, Democratic attorneys general representing states came in under the banner of the state of California and the Women's League of Voters from Massachusetts represented by the ACLU joined together. Judge Talwani, about 10 days ago, issued a temporary restraining order blocking the Postal Service's new rules because they were too close to the election, because they infringed on the constitutional power of the states to run federal elections, not the post office.

2:52Michael Popok:Post office isn't even mentioned, well, until much later in the Constitution. Okay. She issues the temporary restraining order. The Supreme Court, about 12 days ago, lifts the temporary restraining order and says she was too early, that the Postal Service rule hadn't been finalized yet, that she was only anticipating certain injuries that hadn't happened yet. So what happened next? the states and the public interest groups ran back to Judge Talwani, filed new complaints and new claims and said, OK, the rule's been passed by the post office. It is unconstitutional. It is illegal. Block it again.

3:31Michael Popok:And she blocked it again with a temporary restraining order on the 3rd of September. Donald Trump's solicitor general, the number four of the Department of Justice, one of his former criminal defense lawyers, and John Sauer, files an emergency application, comes up through Associate Justice Ketanji Brown-Jackson, who sits over the First Circuit Court of Appeals because this case sits in Boston. She does not grant the administrative stay temporarily. Neither does the rest of the Supreme Court, which is always a bad sign for the Trump side of a case. If they don't have five votes to even enter an administrative stay, as things continue to burn down time-wise, we're less than 60 days to the election, heading into the 50-day range.

4:19Michael Popok:If they can't get an administrative stay, how are they ever going to get an actual stay of a Judge Talwani's actions? So originally off of the temporary restraining order that they had appealed, the court had given the states and the public interest groups until tomorrow, Tuesday at 10 a.m. to file their brief. That's where we left it coming into the long weekend. By the way, you're on Legal AF if you want to support what we do here to get these breaking stories and keep us growing, become a card-carrying member of the Legal AF community. Hit that free subscribe button right now. Okay. That's where we left it.

5:00Michael Popok:What happened next? Friday, Judge Talwani upgrades her temporary restraining order to a preliminary injunction which would last for the entire case. I'm going to read to you. I've got the receipts right here. I'm going to read to you from some of her findings and some of her rulings. That leads the Solicitor General's office inside the Department of Justice to file a new emergency application and request for administrative stay. So what happens? They withdraw the original administrative motion because that temporary restraining order has been converted into a preliminary injunction. They file a new piece of paper that says, forget what we said before, we're now aiming at the preliminary injunction.

5:47Michael Popok:Frankly, that's what they should have done from the very beginning, waited for the preliminary injunction. So Judge Jackson, Justice Jackson on the court docket says, she acknowledges the withdrawal of the original motion for administrative stay and emergency relief. She says it's now aimed at the preliminary injunction. She effectively wiped off the deadline for tomorrow of the states and the public interest groups to file their brief. And she reset the briefing schedule for Wednesday at 4 p.m. Eastern time for everybody to file their opposition to Trump trying to support his Postal Service takeover for mail-in balloting.

6:27Michael Popok:So where are we as of right now? Okay, right now we've got a filing by the Trump administration, an emergency application considered by the Supreme Court against Judge Talwani's preliminary injunction blocking the postal service from denying you your mail-in ballot through the use of weirdly designed envelopes, a scanning process, and some database portal of voter data that hasn't even been built yet. And the Supreme Court has told the parties, forget tomorrow's deadline to respond. We're going to extend it to Wednesday at 4 p.m., so 9-9 at 4 p.m., and then we'll have final briefing. Once they have final briefing, there will be likely no oral argument.

7:12Michael Popok:There could be, but it's very unlikely given the shadow docket being used, the emergency docket being used. You know, one out of 100 gets an oral argument. And then we're going to get a stay or not a stay sometime likely this week. In the meantime, look where we are with balloting. North Carolina already sent out its mail-in ballots through the post office, presumably. Alabama is about to do it on Wednesday. And then five other states on the 13th. That's how close we are to the midterm election. States already mailing out their balloting. The more states that go out without an administrative stay by the Supreme Court, the more likely it is for me that the Supreme Court is not going to block Judge Talwani's injunction.

8:02Michael Popok:And they're going to take the mail-in balloting issue away from the post office and Donald Trump. That's what I believe. As this candle burns down, we get closer to the election, more chaos is wreaked on the states who are administrating this election, the less likely it is for the Supreme Court to interfere. They have a doctrine. They call it the Purcell Doctrine. Under the Purcell Doctrine, the closer you get to an election, the less likely the court's going to intervene. The more likely they're going to find that it is a political question and they leave it to the states. Early on in the game, they may interfere.

8:40Michael Popok:But as you get this close, I mean, we're at the 11th hour. We're on the one yard line. Ballot's been mailed already. Can't get them back. Even the Department of Justice recognizes that once mailed, you can't get them back. Let me read to you from some of the Talwani preliminary injunction, which is what is in front of the Supreme Court. And then I'll turn to this new emergency application by the United States Supreme Court. Now, I thought she did a very good job, Judge Talwani, in going through all of the different constitutional provisions under, you know, the way ballots are administered, elections are administered by states and statutes passed by Congress.

9:24See, under the Constitution, it's the states and the Congress that solely have control over federal elections, not the presidency, under the separation of powers and otherwise, not the presidency. And so she listed the Constitution and the reference to the states. And she listed a series of statutes passed by Congress about voting. Here's what she says on page seven. just so you know what this final rule that the post office passed is all about and what we're fighting over. The final rule mandates that ballot envelopes and return envelopes must comply with certain ballot envelope design requirements.

10:08Pretty late in the game to be asking for new ballots and new designs, don't you think? State or local officials must submit their ballot envelope and return for the Postal Service approval. And after obtaining the approval, the states must input each voter's information into a portal, a portal that she notes is not even created yet, not even done yet. The final rule precludes election officials from uploading voter information until the ballot envelope and return envelope is approved. And where a state or local official does not obtain envelope and return envelope design approval, or does not upload voter information, or does not include some sort of barcode, they won't deliver the ballots.

10:53That's on page seven over to eight. The Article One, Section Four, Clause One of the Constitution is what we're fighting over. It's the Elections Clause. It says that the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but that Congress may at any time by law make or alter such regulations. Okay? Sounds interesting. Sounds like it's the states and Congress, not, of course, the Postal Service. And then we move on to page 23 of her ruling, where she says, well, But one of the reasons the Supreme Court blocked her and told her to lift her stay is because, as she says on page 23, the Supreme Court earlier this week said that there were fears about hypothetical events dependent on third parties not before the court and therefore are not cognizable injuries to the state so they don't have standing to sue.

12:03She says on page 23, now that the final rule has been published and made effective as of August 21, nothing is hypothetical about the plaintiff organization's injuries and threatened injuries as to the November 3 election. And then she has a record developed in half of the states in the District of Columbia with affidavits for the various reasons that they will be harmed if they are forced at the last minute, beyond the last minute, to comply with these new rules. She says on page 24, where the Postal Service has now issued its final rule, changing the rules just months before an election and weeks before voters need to request ballots, the plaintiff organization members have standing due to the likely disenfranchisement injury.

12:51She then goes through how the portal enrollment is supposed to happen. She gave an example. in a declaration filed by California, but even in some page 38, footnote 48, even if the Postal Service's untested ballot portal works as intended and does not experience technical problems, which again seems unlikely, enrolling 600 ,000 voters registered in New York, this is for New York, with the Postal Service will need to receive mail-in ballots will be such a massive undertaking. This task will be significantly complicated by the influx of registration updates and changes that election officials typically receive in the months, weeks and days before any election.

13:37It's an ever changing database, in other words. And it's an overwhelming expenditure of time by the election officials that it should be focused on running properly an election. Of course, Donald Trump doesn't want a proper election to be run. He wants the chaos. He wants people to have fear and doubt about the integrity of our voting system. This is what the Solicitor General just told the Supreme Court in the last day, asking for an administrative stay, which was effectively denied. He doesn't have five votes for right now to even block it while ballots are going out. I think that bodes not well for the Trump side.

14:22I mean, I'll come back and give you the update, but I think if they can't get the administrative stay, that's not a good sign.

14:32He goes through the he goes through the Postal Service rule, tries to explain why it's just a simple ballot design rule. It's not meant to take away the power of the states to run their election. But that's what it does in effect, because the Postal Service is telling the states before they can exercise their constitutional powers and rights and obligations, they got to jump through a series of hoops that the Postal Service doesn't even understand and jump through a portal that isn't even created yet. So we're going to continue to follow what happens here. Key red letter dates to put on your calendar and for me to update you.

15:134 p.m. on Wednesday, this Wednesday, we're going to see the brief, if not a little bit before, of the states and the public interest groups to oppose the attempts to undercut Judge Talwani's order. If the Supreme Court sides with Talwani, these rules don't go into effect for the midterms and perhaps beyond. If they don't side with Talwani, they're going to block her injunction and they're going to let these new rules with less than 50 days or whatever it is to the midterms be applied. I just don't think that's going to happen, but we'll continue to follow it very closely here on Legal AF. And programming note, talk about timely.

15:53I'm going to be with the Democratic Attorneys General Association, representing 24 Democratic Attorneys General. Most of them brought this case tomorrow in Detroit for their conference, doing some exclusive interviewing and briefing. And you know what's going to be on my agenda, voting, voting, voting, and this United States Supreme Court case, which many of their staff, I won't probably see them, are going to be feverishly working on the brief, which is due the following day, Wednesday at 4 p.m. What a timely set of interviews here on Legal AF. If you like this kind of content, hit the free subscribe button as we continue to grow our pro-democracy channel.

16:33Until my next report, I'm Michael Popak.

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