WASHINGTON - A federal appeals court on July 25 declined to permit the federal government to activate an executive order that would change how mail-in ballots are processed and validated in 23 states ahead of the September and November elections. The Boston-based 1st U.S. Circuit Court of Appeals turned down the Department of Justice’s request to pause a preliminary injunction issued by a lower court on June 25.
The injunction had been secured by a coalition of predominantly Democratic states and the District of Columbia after a U.S. District Court judge found that major elements of the March executive order were unconstitutional. In asking the appeals court to temporarily set aside that ruling while it pursues an appeal, the Justice Department argued the legal challenge was premature because federal agencies had not yet completed rulemaking or other actions to implement the presidential directive.
In a 2-1 decision, the three-judge panel rejected the department’s position. The court emphasized that the executive order establishes a series of imminent deadlines by which states would be expected to coordinate with federal officials and comply with new procedural requirements. Those deadlines, the panel said, force states to act now to adapt their procedures and to ensure officials and voters understand the new rules governing upcoming elections.
The appeals court explained that the plaintiff states have little practical choice but to respond to the order promptly rather than wait for the completion of any implementing actions by federal agencies. The court’s majority cited the district court’s reasoning in concluding that pause relief was not warranted.
Background of the order
The presidential directive at issue was signed in March. It instructed the Department of Homeland Security to assemble and send to the states lists of confirmed U.S. citizens eligible to vote, drawing on citizenship and naturalization records along with other federal databases. The order also directed the U.S. Postal Service to deliver ballots only to voters who appear on each state’s approved mail-in ballot lists. Separately, the Department of Justice was charged by the order with prioritizing investigations and prosecutions of state and local officials who issue federal ballots to individuals deemed ineligible.
The administration has sought to implement aspects of the order. The Postal Service issued proposed rules that would require states to provide the names and barcodes tied to their mail-in ballots, reflecting an effort to comply with the directive. Those prospective USPS changes prompted some of the legal challenges.
Lower-court ruling and legal findings
U.S. District Judge Indira Talwani, who was appointed by President Barack Obama, sided with a coalition led by California, Massachusetts, Nevada and Washington state. In her June ruling, Judge Talwani concluded the president lacked authority under federal law to compel DHS to prepare and supply state-specific lists of voter eligibility drawn from federal records. She also determined that the Postal Service had no statutory authority to issue binding regulations that would reshape mail-in voting procedures.
The district judge further found that the president could not use the executive order to pressure local election officials into relying on the necessarily incomplete confirmed-citizenship lists, noting the order’s criminal-enforcement threat as a means of intimidation. Those findings formed the basis for the injunction the administration sought to stay before the 1st Circuit.
Next steps and potential escalation
Before the decision from the 1st Circuit, a federal judge in Washington, D.C. had rejected a related effort by Democratic plaintiffs to block the same presidential directive on similar grounds. Following the appeals court denial of a stay, the Justice Department indicated it might need to seek intervention from the U.S. Supreme Court if the 1st Circuit does not ultimately rule in the administration’s favor on the merits.
For now, the injunction remains in place in the 23 states party to the suit, and the executive order’s central mechanisms for reshaping mail-in voting are restrained by the courts. States and federal agencies will continue to navigate the litigation as they prepare for the upcoming election calendar.