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 faces at least five lawsuits.
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.”
Implications for midterms
Nichols’ decision is the first ruling in what is likely to be a protracted legal battle that could eventually reach the U.S. Supreme Court. Thursday’s opinion dealt only with whether the executive order should be blocked immediately — the underlying lawsuit to decide if the directive is unconstitutional and illegal will continue.
Whether Trump can successfully implement the order holds major consequences for the midterm elections. If the White House is able to block the Postal Service from sending or receiving mail ballots from voters not on state-provided lists, it could upend elections in states where voting by mail is the norm and disrupt procedures in others.
About 30% of voters cast mail ballots in 2024, according to data gathered by the U.S. Election Assistance Commission.
Trump has framed the order as a needed measure to combat noncitizen voting, though it’s exceedingly rare. The directive marks the White House’s latest effort to assert authority over elections as the SAVE America Act, which would require voters to show documents proving their citizenship, stalls in the U.S. Senate.
Democrats and voting rights advocates argue the executive order is unconstitutional. Under the U.S. Constitution, states administer elections and Congress has the power to pass regulations on them, but the president has no power to act unilaterally.
Postal Service targeted
The battle over the executive order also carries ramifications for the future of the Postal Service. While the president used to appoint the postmaster general, since 1970 the Postal Service has operated as an independent corporation — a change intended to shield mail delivery from politics.
Postal law experts say that if Trump is able to enforce an order against the postmaster general, who now is appointed by a Postal Service Board of Governors, it will shatter the agency’s independence.
The White House and Elias Law Group, which represents the Democratic plaintiffs, didn’t immediately respond to a request for comment.
A group of Republican state attorneys general has also intervened in the case to defend the order. They argue that Trump has authority to gather and organize information within the executive branch. They say Trump can direct the Postal Service to propose rules.
Missouri Attorney General Catherine Hanaway, who is leading the Republican legal effort, didn’t immediately respond to a request for comment on Nichols’ decision.
Opponents look to Massachusetts
With Nichols’ decision, a federal judge in Massachusetts offers opponents their next opportunity to quickly halt the directive.
Massachusetts District Court Judge Indira Talwani, appointed by President Barack Obama, will hold a hearing on Tuesday in a legal challenge brought by Democratic state attorneys general, led by California, along with the League of Women Voters and other civic groups.
Some legal analysts anticipate states may have an easier time challenging the order because its requirements, such as requiring states to submit lists of voters to send ballots through the mail, directly affect them. David Becker, director of the nonpartisan Center for Election Innovation & Research, wrote on social media that the states have “much stronger standing claims” heading into the hearing.
After federal agencies begin acting on the order, the challenge in Massachusetts “will be the case to watch,” he wrote.
‘Maximum amount of confusion’
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.”
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