Supreme Court Amicus Brief Fighting Against USPS Ballot Rule

The Society for the Rule of Law has filed an amicus brief in United States Postal Service, et al., v. State of California et al., urging the U.S. Supreme Court to keep in place a preliminary injunction against the United States Postal Service’s new rule, Ballot Mail for Federal Elections—a rule which attempts to enforce Executive Order 14399’s directive to collect and administer lists of mail-in and absentee voter ballots. The amicus brief argues that the injunction should remain in place because the Constitution, federal law, and major substantive canons of statutory interpretation all make clear that the USPS lacks authority to administer voter lists and mail-in ballot practices.

Among the myriad bases for denying a stay, this brief focuses on three independently sufficient reasons why the unprecedented USPS ballot rule plainly lacks authority. First, rather than delegate authority to USPS, in the federal election statutes of the Help America Vote Act of 2002 (“HAVA”), the National Voter Registration Act of 1993 (“NVRA”), and the Voting Rights Act (“VRA”), Congress specifically delineated where federal law altered and where federal law preserved state authority concerning the election practices addressed by the USPS ballot rule—voter lists, delivery of “any . . . paper ballots” to voters, and absentee balloting. 52 U.S.C. §§ 21081, 21083, 20506-07, 10502. Except where expressly altered by these statutes, Congress specifically preserved authority concerning these election practices and “election technology and administration requirements” for the States only, thereby withholding any such authority from the USPS. 52 U.S.C. §21084; see id. §§21085, 20507(a), 10502(g). And 52 USC §21145(a) specifically superseded resort to all the Title 39 non-election provisions on which Applicants rely.

Second, election mail was specifically withheld from the nonmailability provisions in 39 U.S.C. §§3001-3018. Those provisions are the only place where—nine times—Congress expressly gives the USPS authority to condition or restrict the mailing of a category of items. Election mail is not one of these categories. Instead, the only Title 39 election provisions are 39 U.S.C. §3629, which NVRA enacted and requires USPS to give favorable postage rates to registration mail, and 39 U.S.C. §3406, which UOCAVA enacted and requires expeditious and free carriage of UOCAVA voting materials. The non-election, boilerplate Title 39 provisions on which Applicants rely are not a secret, alternative way for the USPS to bar ballot mail, conditionally or otherwise, on the eve of election day.

Third, under the federalism presumption and the major question doctrine, the USPS needed a clear statement of statutory authority. The boilerplate provisions in Title 39 do not come close.

Read the full brief here. For press inquiries, please contact [email protected].