Why a Trump-Appointed Judge Just Blocked the President's Mail-In Ballot Restrictions

Last month, the U.S. Supreme Court ruled 6–3 that the executive branch may begin to implement President Donald Trump’s executive order that seeks to restrict the use of mail-in ballots in the fast-approaching midterm elections this November. At the same time, however, the Court also made it clear that its ruling was not the final word on the matter. “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,” explained its unsigned majority opinion. “On that score, time will tell.” In other words, the real legal battle over Trump’s mail-in ballot order was just getting started.

On Sunday, the administration suffered a notable defeat in that now-unfolding battle. What is more, in a sort of insult added to legal injury, Trump suffered that defeat at the hands of a judge that he himself appointed to the federal bench.

“Less than three weeks ago,” observed Judge Carl Nichols, a Trump appointee who sits on the U.S. District Court for the District of Columbia, “the United States Postal Service adopted a Final Rule requiring that all absentee and mail-in ballots for federal elections—including for the elections occurring in less than sixty days—be transmitted only in envelopes satisfying new design requirements and be transmitted only to voters who are verified by the Postal Service to have been enrolled in a newly created ‘Federal Ballot Mail Portal.’” The problem with that, Nichols observed, is that “the Postal Service could issue (and enforce) the Rule only if Congress gave it the authority to do so, but here no statute grants the Postal Service the power to issue key parts of the Rule.”

Nichols therefore issued a preliminary injunction that entirely blocks the Postal Service’s new rule on mail-in ballots from going into effect while the litigation against it plays out. The “plaintiffs have demonstrated that, absent an injunction, there is an increased risk that a significant number of otherwise appropriate absentee or mail-in ballots will ultimately not be counted in the upcoming elections,” Nichols wrote. “The public has a strong interest in ensuring that doesn’t happen.”

At the center of this dispute is a fairly straightforward piece of constitutional text. According to Article I, Section 4, “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Put differently, the Constitution leaves the making of rules and regulations for federal elections in the hands of the states and Congress; the executive branch is granted no such authority.

That’s the rather steep constitutional hurdle that Trump will somehow have to clear if his executive crackdown on mail-in voting is going to happen. The fact that a Trump-appointed federal judge has just issued what is effectively a bench slap against the implementation of the president’s order does not bode well for his efforts to evade the constitutional separation of powers.

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