Ballots that arrived in the mail or were set aside on Election Day 2024 lie on a table at the Cass County Courthouse in North Dakota on November 18, 2024. (Photo by Jeff Beach/North Dakota Monitor)
Federal authorities say they have not yet taken steps to implement President Donald Trump’s order restricting mail-in voting, while the Justice Department wages a Democratic-led lawsuit against it.
The Justice Department tardy Friday filed documents Ask a federal judge to dismiss the lawsuit and not temporarily block the executive order because the order has not been implemented. The filings were the Trump administration’s first attempt to defend the order in court.
The Order dated March 31st regulates the creation of state citizenship lists and limits how ballots can be sent by mail, instructions from Democrats and election experts called unconstitutional and illegal. It comes as Trump has seized on the specter of non-citizen voting, an extremely sporadic phenomenon, to call for sweeping voting restrictions.
In its filing Friday, the Justice Department sought to convince Judge Carl J. Nichols of the U.S. District Court in the District of Columbia that a legal challenge was premature.
“When the executive branch takes action to implement the executive order,” Stephen Pezzi, a senior litigator in the Justice Department’s Civil Division, wrote in a court filing.
Nichols has scheduled a hearing for May 14.
No action was taken, officials say in court
The DOJ’s argument relies on statements from key federal officials that the agencies affected by the order — the Department of Homeland Security, the Social Security Administration and the U.S. Postal Service — are still deliberating how to implement Trump’s order. In statements filed in court Friday, officials from all three agencies say final decisions have not yet been made.
“Because the Postal Service is still in the consultation phase on how to implement the Executive Order, we have not yet published a proposed rule or made a final decision on the content of a proposed rule,” said Steven Monteith, the Postal Service’s chief customer and marketing manager, wrote.
The executive order directs the postmaster general, who runs the Postal Service, to propose a rule that would prevent states from sending ballots by mail except to voters on lists the state has provided to the Postal Service.
The order also directs Homeland Security to compile lists of eligible U.S. citizens in each state with the assist of the Social Security Administration. Democrats claim the Trump administration is creating an unauthorized national voter roll, even though the U.S. Constitution gives states responsibility for conducting federal elections.
Michael Mayhew, deputy assistant director of the Immigration Records and Identity Services Directorate within the U.S. Citizenship and Immigration Services, wrote in a statement that the authority “has not yet started compiling” the citizenship lists. USCIS is a subsidiary of the Department of Homeland Security.
At the Social Security Administration, Jessica Burns MacBride, director of program policy and data sharing, said wrote that the Agency has not yet taken final decisions “on its role” in implementing the Implementing Regulation.
Focus on the postal service
Opponents of the order are particularly watching the Postal Service’s response because it is an independent company overseen by its board of governors – not the White House.
Democrats and postal law experts say Trump has no authority to order the Postmaster General to take action. The Board of Governors hires and fires the Postmaster General, and board members serve seven-year terms to protect them from political pressure.
Last month, 37 Democratic U.S. Senators signed a letter to Postmaster General David Steiner and the Board of Governors requesting that the Postal Service not implement the Executive Order. The senators pointed out that the president has no authority to regulate federal elections or the Postal Service.
“Like the President, the Postal Service has no authority to regulate the manner in which voting is cast in federal elections or who is eligible to vote by mail in such elections,” the letter said.
The Postal Service is a named defendant in the lawsuit filed by Democratic groups and leaders in Congress.
The Justice Department, which represents the Postal Service, addressed questions about the president’s authority in Friday’s court filing. It called arguments about Trump’s authority over the Postal Service an “abstract legal question” that could not be resolved before the agency takes action.
Still, Monteith appeared to nod to concerns within the Postal Service about the legality of the order while avoiding details.
“I understand that consultations regarding the implementation of the Executive Order are currently underway within the Postal Service,” Monteith wrote, adding that the consultations included “legal considerations” regarding the order.
Unified Executive Theory
There are at least five lawsuits challenging the executive order, including a challenge filed by a coalition of Democratic attorneys general led by California’s Rob Bonta. The Justice Department has not yet filed court documents defending the order in this case.
For their part, Republican attorneys general – led by Catherine Hanaway of Missouri – are defending the executive order. If their position were adopted by the courts, Trump would gain sweeping control over the Postal Service.
In one Court filing on May 1stRepublican attorneys general argue that challengers to the executive order are unlikely to succeed in showing that Trump cannot direct the Postal Service to propose a rule. They say federal law does not specifically prohibit the president from directing the postmaster general to propose rules for mail-in ballots — and it would be unconstitutional if he did.
“The Constitution vests all executive power in the president,” the Republican coalition says, expressing a view commonly referred to as unitary executive theory: the idea that Congress cannot constitutionally create agencies that exist outside the control of the White House.
Republican states involved also include Alabama, Florida, Indiana, Kansas, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota and Texas.
Democrats and many constitutional law experts reject the unitary executive theory, although it has gained support among Trump-aligned Republicans as the White House seeks greater control over independent agencies.
If the U.S. Supreme Court ultimately greenlights Trump’s efforts to control the Postal Service and other independent agencies, it would mark a “tremendous” change in the way the federal government operates, James Campbell Jr., a Washington, D.C.-area attorney who advises on postal law, said in an interview last month.
“What you’re basically saying is redesigning the U.S. government,” Campbell said.
