Trump order limiting voting by mail will stand for now, federal judge rules

A federal judge on Thursday declined to block President Donald Trump’s executive order restricting voting by mail, finding that it was too early to challenge the directive.

The decision by D.C. District Court Judge Carl Nichols, a Trump appointee, represents a setback for Democratic groups, lawmakers and other groups including the NAACP that have sued to stop the order ahead of the midterm elections in November. The March 31 order

The executive order directs the postmaster general, who leads the Postal Service, to propose a rule that would block states from sending ballots through the mail except to voters on lists provided by the state to the Postal Service. Under the order, the proposed rule is due this week.

The order also instructs the Department of Homeland Security to compile lists of voting-age U.S. citizens in each state, with the help of the Social Security Administration. Democrats allege the Trump administration is building an unauthorized national voter list, despite the U.S. Constitution giving states the responsibility of running federal elections.

The Department of Justice had told the judge that the federal government hadn’t yet implemented the directive. The judge’s opinion, released just after midnight in Washington, D.C., makes clear that he could arrive at a different decision if the Trump administration moves forward with enforcing the order. 

“The Court recognizes that the Postal Service may ultimately issue a final rule that directly affects Plaintiffs or their members, or that the Government may develop State Citizenship Lists that omit specific individuals due to particularized flaws,” Nichols wrote in a 26-page opinion. 

“Plaintiffs may, of course, renew their motions if and when those future actions occur,” he wrote. “Until then, however, Plaintiffs cannot show that preliminary injunctive relief is warranted.”

At a mid-May hearing before Nichols, lawyers for the Democratic National Committee, Democratic leaders U.S. Sen. Chuck Schumer and Rep. Hakeem Jeffries of New York, and other interest groups had argued that, with the midterm elections less than six months away, there was no time to see how the Trump administration executes the order.

The proposal would result in a “maximum amount of confusion” and be a “nightmare for election officials,” Danielle Lang, who argued on behalf of the League of United Latin American Citizens, told Nichols. “Waiting will only erode public confidence in elections.”

At the time, Nichols warned Justice Department lawyers to notify him of “anything even approaching a material change” on implementing the order.

Justice Department senior trial counsel Stephen Pezzi told Nichols the plaintiffs have a right to “prepare for the darkest fears,” but, he argued, they can’t win a preliminary injunction based on speculation about error-prone citizenship lists and a postal rule not yet created.

Ultimately, Nichols agreed.

“In any event, given that the Executive Order does not command Plaintiffs to do anything, and that no agency has yet acted pursuant to the Order in a way that could harm Plaintiffs,” Nichols wrote, “they have not suffered any harm at present, much less harm that is ‘certain,’ ‘great,’ and imminent.”