Trump’s Mail-In Ballot Rules Return to the Supreme Court — but the Actual Dispute Is Missing

When last we looked in on the Supreme Court’s review of Donald Trump’s mail-in ballot executive order, less than two weeks ago, it was clear that the Court’s August 24 decision would not be the final word. The Court decided that it was premature to rule on the EO and that nobody had suffered any injury giving them legal standing to challenge it. Much of the briefing leading up to that decision focused on the preliminary question of who suffered more harm while the case was ongoing: the administration in not being able to prepare to carry out the EO, or the plaintiff blue states in not knowing if they needed to prepare to comply with it.

The administration complained about the appallingly overreaching effort by resistance-mad Judge Indira Talwani of the District of Massachusetts to bar the United States Postal Service even from writing regulations to implement the EO. Judge Talwani then attacked the USPS for issuing conditional rules before the Supreme Court’s decision, and she issued her own broadside even after the Court made clear that she never had Article III judicial power to issue any such order — an order transparently aimed at running out the clock so that even a win in the appeals court would leave the administration unable to implement its rules for the midterm elections. The states, at the same time, have a legitimate practical complaint that they can’t well be expected to print up millions of ballot envelopes compliant with the new USPS rules when they’d be seeing those rules for the first time only at the last minute. The online portal for the states to communicate with the USPS apparently isn’t even operational yet.

There remains a strong legal case on the merits that neither the president nor the USPS has the authority to prevent the mailing of ballots by noncitizens without enabling legislation on the topic from Congress. But as of now, it looks as if they aren’t even trying to do that. So, why are we still here?

On August 27, Judge Talwani enjoined the USPS from implementing the new rule, and declined to stay her order pending appeal, although she did allow the USPS to communicate its guidance to states on ballot-envelope design, so long as it was clear that this was nonbinding. Yesterday, in United States Postal Service v. California, the administration sought a stay from the Supreme Court. An opposition was filed the same day (although a longer one is promised by September 8). The Court will likely move very fast.

Some procedural issues remain. Temporary restraining orders aren’t supposed to be appealable, but even if it doesn’t rule on the merits of Judge Talwani’s order explicitly, the Court could still stay that order, and in any event, Judge Talwani is apt to finalize her TRO into an injunction any minute. The issues of standing to sue and ripeness that split the Court 5–4 against hearing challenges to the EO are no longer as pressing: the dispute over the binding nature of USPS regulations is now a live one, and the appeal no longer involves the parts of the EO directed at the Justice Department and the Department of Homeland Security.

The solicitor general argues that the new rules are not a big administrative burden, comparing the new envelope rules to those governing “the mailing of cremated remains and replica explosives”:

The Postal Service’s final rule imposes only modest envelope-design and addressee-information requirements for federal-election ballots sent via U.S. Mail. . . . Specifically, the Rule creates standardized design and review requirements for ballot envelopes that build on practices the Postal Service has long recommended, some of which are already in use in many States (including many of the respondents here). And it requires States to upload the name, address, and barcode information of intended recipients of ballot mail in an online portal—information that election officials would necessarily already possess to send ballot mail to those recipients. The Rule ensures that States remain responsible for determining voter eligibility and eligibility to vote by mail, and it does not dictate ballot content, mailing or receipt deadlines, or ballot-counting procedures. The Rule thus plainly does not seize control of States’ administration of elections—it simply imposes reasonable preparation requirements for certain election-related mail. . . . While the States have primary authority to regulate the manner of elections, they cannot choose to use the federal mails to carry out their elections but then insist that their election-related mail is somehow exempt from the Postal Service’s rulemaking authority, conferred by Congress, to regulate envelope design and addressee information. [Citations omitted.]

That’s all true so far as it goes, but it misses the whole point of the dispute. Of course the USPS has the authority to adopt rules for how election mail should be addressed and marked. But the whole fight, at least as far as Trump and his EO is concerned, is about what the SG blandly describes as “the Postal Service’s efforts to address the risk that the federal mails will be used to perpetrate voter fraud” — which Trump wants it to do by asserting unprecedented authority to decide which ballots to deliver.

The USPS has tried to square the circle of complying with the EO while crafting a “modest” rule by issuing a rule that professes that “the verification process does not entail scrutiny into, or any attempt to evaluate, individual voters. The Postal Service is not verifying addresses, names, voter eligibility, or citizenship status as part of this verification process,” and “the Postal Service will not play any role in determining voter eligibility, maintaining voter rolls, or counting ballots.” As the SG’s brief argues:

The Postal Service will not perform any verification of voter eligibility; its role is limited to ensuring that envelopes comply with the Rule’s design and informational requirements. As the Rule emphasizes, “[e]ligible voters will therefore be listed [in the Portal] by and at the discretion of election officials, and the Postal Service will not second-guess the states’ submissions. State election officials will thus retain full control over who is permitted to vote in federal elections in their state by U.S. mail.” . . . States likewise need not worry about the accuracy of lists maintained by the Postal Service—all lists will consist solely of information provided by the States themselves. [Citation omitted.]

This raises the question of how any of this advances the actual policies in the EO, and what harm might befall the USPS from waiting to fully implement the rule in the next election cycle. There are some lame arguments made about incremental improvements in tracking the chain of custody, but that hardly seems to justify the potentially extensive disruption of trying to introduce an entirely new ballot-mailing system two months before Election Day. Of course, it also undermines Judge Talwani’s order, which didn’t even bother explaining the basis for finding the new rule unconstitutional, even though the rules as written are far less ambitious than what she expected when she ruled against the original EO as it applied to the power of Trump and the USPS to refuse to accept mailed ballots. Either way, however, the Court will be presented with a kind of kabuki dispute over a power that the USPS is not currently claiming, even after the president ordered it to claim precisely that power. Which means that the resolution of the current fight is apt to come down to assessing why, exactly, the USPS is in such a hurry now, and whether it is practically feasible to do any of this in 2026.