THIS JUST IN: JUDGE SAYS “TECHNICALLY USPS VIOLATED MAIL-IN BALLOT RULE INJUNCTION” BUT STATUS QUO IS STILL SAME: CANNOT *IMPLEMENT* IT
by Anne P. Mitchell, Esq. – attorney, law professor emeritus, and author of Federal law
What’d I tell you yesterday, when everyone was all a’tizzy about the Supreme’s ruling on the USPS and the proposed mail-in balloting rule? In case you missed it, in essence I told you to come in off the ledge, it’s not what you think and it was definitely not as bad as you were being led to believe by the headlines.
Well, just now Judge Talwani – she of the nationwide injunction prohibiting the USPS from *implementing* Trump’s rule, and who ruled that the EO itself was unenforceable, reaffirmed that injunction, and observed that yes, the USPS did technically violate it…but… I have to say it was in one of the weirdest ways that I’ve seen yet.
Basically the plaintiffs, the League of Women Voters (I reported on this case and injunction to you two weeks ago to the day), came back to court this week and said that the USPS was in violation of that injunction because now they have finalized the rule. Specifically the injunction enjoined the USPS from “implementing, giving effect to, or enforcing” Section 3 of the Executive Order that is at issue (that’s the section telling the USPS to put in place the rule about, among other things, the states having to cough up their mail-in voter rolls).
The Court, as you will see from today’s just-issued decision and order (included for Notes from the Front members), agrees in principle with the plaintiffs. However, the defendants don’t agree that they have violated it. Not only that, but they seem to be bending over backwards to accommodate the plaintiffs and the Court, basically saying “We haven’t violated the injunction, we haven’t implemented the rule, and we *won’t* unless a higher court says that we can.”
You can almost hear Judge Talwani rolling her eyes.
And then the Court says this:
“…the court finds that Defendants violated the court’s Preliminary Injunction but imposes no remedy other than identifying the violation.”
Weird, right? Again, you can almost hear her rolling her eyes.
So here are the things to take away from this …skirmish … read the court order (it’s only 5 pages) and let me know what *you* think:
1. I think it’s entirely possible that the USPS itself doesn’t even have the appetite to move forward with this – it would be a *huge* headache for them. I can almost hear them saying “Please keep us enjoined, look how nice we’re really playing with the injunction – notice how weak our pushback is.”
2. I think that Judge Talwani sees that as well, and is also sick of the whole thing; and
3. Remember my quoting the Supreme Court yesterday when they said of this thing, and I quote again, “The Court’s disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell.”
Now keep in mind this was the Supreme’s ruling on a *different* case involving the same proposed USPS rule, but they are well aware that *this* injunction of Judge Talwani’s is out there, and they are well aware of the totality of the landscape.
Remember, all courts, up and down the judicial chain have to make sure that their Ts are crossed and their Is are dotted.
The courts have you – they just have to do it in the way that they have to do it.
Notes from the Front members: this evening’s order from Judge Talwani is in your inbox now.
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P.S. If you actually read all the way to the bottom please leave a sentence in a comment that includes the word “weird”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering just why everyone is talking about something being weird! ;~)
(The above was provided by me, Anne P. Mitchell, Esq. – attorney and law professor emeritus – all me, no AI, the buck stops here.)
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