The litigation challenging the Postal Service’s ballot-mail rule is moving quickly, with new developments occurring almost by the hour. The legal questions could remain unresolved until the Supreme Court weighs in again, probably in mid-September. By then, however, the most pressing issue may no longer be whether the new rule is lawful. It will be whether there is still enough time to implement it.

That concern is becoming increasingly widespread. An article in Democracy Docket a few days ago quotes David Becker, executive director of the Center for Election Innovation & Research: “I get the question a lot: When does it become too late to implement this executive order? The answer was many months ago…. By the time this gets back to the Supreme Court, who knows how many thousands or even millions of mail ballots will have already been mailed out.”

The government itself made much the same point when it asked the Supreme Court in July to stay the injunction blocking Trump’s Executive Order. The Solicitor General argued that ordinary appellate review would take too long because implementation of any USPS rule would need to begin “well before November — indeed, as soon as early to mid-August” — to be effective for the 2026 election. August has ended, and a temporary restraining order now prohibits USPS from making compliance with the rule mandatory for the November election while the litigation continues.

The Postal Service is now up against several obstacles: the timetable of the litigation, the narrowing window before ballots are mailed out, the huge volume of ballots that currently do not satisfy the new rule, and the many challenges facing election officials and postal employees who would actually have to implement the changes.

The litigation calendar

On August 27, in League of Women Voters of Massachusetts v. Trump, Judge Indira Talwani issued a TRO blocking the mandatory requirements of the Final Rule for the November midterms. The TRO lasts 14 days while she considers motions for a preliminary injunction, with a hearing scheduled for September 3.

The TRO does not halt preparations altogether. USPS may establish the Portal, communicate with election officials about its design standards, and work with states that choose to participate voluntarily. What Talwani has temporarily blocked is making compliance with the new requirements a condition of using the mail for federal ballots in November.

The next day, the Justice Department appealed the TRO to the First Circuit and asked Talwani to stay it pending appeal.

On August 31, Talwani denied the stay request, holding that the 14-day TRO is not immediately appealable. She also rejected the government’s characterization of the rule’s requirements as “modest” and reiterated her conclusion that USPS likely lacked authority to issue the rule and that it is “substantively unconstitutional and contrary to law.”

If Talwani issues a preliminary injunction after the September 3 hearing, another expedited appeal to the First Circuit — and potentially another emergency application to the Supreme Court — could follow within days.

The First Circuit previously affirmed Talwani’s injunction against the executive order, but the Supreme Court stayed that judgment on August 24, concluding that the government was likely to succeed on its standing and ripeness arguments. The Supreme Court expressly left open whether measures subsequently taken to implement the order would themselves be lawful

At this point, it appears that the case could be back before the Supreme Court in a week or two. In the meantime, the election calendar keeps moving.

The mailing window

State laws prescribe when election officials must begin mailing ballots. If the new federal requirements were to go into effect, it will make it very difficult, if note impossible, for some states to meet the deadlines for sending out ballots. Ballots may need to be redesigned, barcodes may need to be added, and so on, all while election offices are also busy programming and testing voting systems, training workers, coordinating vendors, conducting voter education and preparing for early voting.

The table below shows the number of ballots sent and received in 2024, along with state-law mailing dates. It illustrates how quickly the national mail-ballot system becomes implicated as each week passes.

The ballot data come from the Election Administration and Voting Survey; the mailing dates come from the National Conference of State Legislatures. For returned via USPS, the numbers are estimates derived from “ballots returned” minus “returned via dropbox.” For Hawaii and Nevada, the NCSL table does not specify a mailing-start date; the dates shown reflect the statutory timing deadline described by NCSL. And a correction for Alabama: the NCSL table indicates ballots can be sent out 45 days before the election (September 19), but the state actually begins mailing absentee ballots 55 day before the election (September 9).

According to the EAVS report, approximately 66.9 million domestic mail ballots were sent out in 2024. Using those volumes as a rough measre of the 2026 operation, states representing about 3 million ballots reach their mailing-start dates by September 18; 9.6 million by September 19; 16.2 million by the end of September; and more than 50 million by October 7. Here’s a table showing a more detailed calendar. (The above correction for Alabama is not reflected in this table.]

In both tables, the totals are based on the date when mailings may or must begin, not the dates by which all ballots must be mailed. Some states also have outside deadlines. Vermont, for example, must commence its general-election mailing by September 21 and complete it by October 1. Nevada must distribute its regular mail ballots by October 5. Washington and Colorado must mail ballots by October 16, Oregon by October 20, and Utah by October 27.

The scale of the problem

The volume of ballot mail adds another dimension to the timing problem.

The Postal Service claims that some jurisdictions already use the mailpiece features required by the Final Rule, but admittedly only “to varying degrees.” The available evidence does not establish how many already satisfy all the new requirements, but one can get some idea based on 2024 data.

EAVS reports that approximately 66.9 million domestic mail ballots were sent to voters in 2024 and nearly 48 million were returned, approximately 32 million via the Postal Service.

In its April 2025 audit of the 2024 election, the USPS Inspector General reported that 59.4 million ballots had the data necessary for service-performance tracking — 43.7 million outbound ballots and 15.7 million return ballots. USPS estimated that another 39.8 million ballots mailed to and from voters lacked the performance-tracking data necessary for the OIG’s analysis of service performance.

Those figures do not establish that all 39.8 million pieces lacked Intelligent Mail barcodes. Some ballots with barcodes may not have generated the scans or other information necessary for performance measurement. Conversely, a ballot being tracked by the OIG does not establish that it would satisfy the new USPS Rule, which requires uniquely serialized barcodes and specified Service Type Identifiers on both outbound and return envelopes.

But the figures indicate the potential scale of the change. Tens of millions of pieces — and conceivably something approaching half of the roughly 100 million pieces in the 2024 ballot-mail stream — could require new or modified barcode and tracking practices. The OIG recommended that the Postal Service work to make more ballots trackable, but it’s not clear how much progress has been made over the past sixteen months.

It should also be noted that there is a partisan divide on mail ballots. The states challenging the new rule account for the overwhelming majority of the nation’s mail ballots. Based on 2024 EAVS data, the 24 plaintiff states plus the District of Columbia sent about 55.3 million mail ballots, or 83 percent of the national total. By comparison, the 12 states that have intervened to defend the rule sent about 7.5 million, or 11 percent. The states with by far the greatest operational exposure to mail voting are largely the ones telling the courts that implementation on the current timetable is unworkable.

The challenges for election officials

The practical challenges facing implementation were highlighted in declarations filed this past Friday. On August 28, the LULAC plaintiffs in DSCC v. Trump filed a second motion for a preliminary injunction supported by several declarations providing perhaps the fullest account yet of what implementation would actually require.

The Final Rule requires election officials to place uniquely serialized Intelligent Mail barcodes on both outbound and return ballot envelopes and associate those identifiers with individual voters on participation lists submitted through the new Federal Ballot Mail Portal. Election officials must also submit envelope designs to USPS for review and feedback.

In Wisconsin, the statewide WisVote system already generates unique IMbs for outgoing ballots, but it cannot generate unique return-ballot IMbs. Local clerks cannot make that change themselves because the Wisconsin Elections Commission controls WisVote and the design of absentee-ballot envelopes. Madison has already spent more than $10,000 on envelopes for the November election and normally orders election envelopes three to nine months in advance. Compounding the problem, there are relatively few vendors that produce specialized ballot envelopes, and a nationwide rush to replace them could result in production times of 12 to 16 weeks.

In Travis County, Texas, neither the outbound nor return envelopes currently carry the required unique IMb. The return envelope would have to be redesigned, and the county’s existing scanners cannot read the required barcode. Travis County has already spent $21,349 on envelopes and says it has no budget for replacements.

The challenges for the Postal Service

The Postal Service says it will be ready for implementation, but experts doubt it.

The LULAC plaintiffs submitted a 63-page expert declaration by Tammy Patrick, a former Maricopa County election official with more than two decades of election-administration experience. Patrick has worked extensively with USPS through the Mailers Technical Advisory Committee and participated in developing the ballot-mail Service Type Identifier. Her declaration provides a useful benchmark for how USPS normally implements significant election-mail changes.

Developing the ballot-mail STID took roughly two years of working groups, testing, coordination and training — and that was a considerably narrower project than the Final Rule. The STID project did not change the conditions under which USPS would accept ballots into the mail. It did not require election jurisdictions to generate unique barcodes for both outbound and return ballots, link them to individual voters and transmit that information through a new federal portal. Nor did failure to participate mean USPS could reject the mailing.

Patrick also emphasizes the decentralized nature of American election administration. More than 10,000 local election offices may have to adapt to the system, and more than a third have no full-time employee. Their technical capabilities vary enormously, from large jurisdictions using sophisticated mail-service providers to small offices with limited staff and technology.

USPS would have to support all of them. Patrick notes that the Postal Service has only about 40 Mailpiece Design Analysts nationwide and, to her knowledge, none dedicated exclusively to Election Mail. Those analysts would potentially be reviewing designs while election officials and vendors simultaneously try to resolve barcode, software and production problems.

The Federal Ballot Mail Portal presents another challenge. It is central to the Final Rule, yet as of late last week it apparently was not available for election officials to use. Officials therefore cannot yet train on the finished system or begin using it to submit the information the rule requires. (Update: A whistleblower report released on Sept.1 describes serious problems with the portal.)

Patrick’s larger point is that the normal safeguards for introducing a change of this magnitude — development, testing, education, training and gradual implementation — have been compressed into a matter of weeks.

Election officials warned about this problem before the rule was final. In their July comments, a group of local officials calculated that even if USPS finalized the rule on the anticipated July timetable, the earliest-mailing jurisdictions would have only 26 working days to implement it. That timetable has since deteriorated dramatically: the Final Rule was not issued until August 21, and implementation is now halted again by the TRO.

Tom Day offers a similar assessment from the postal side. Day, now a Postal Regulatory Commissioner, spent 35 years at USPS and worked extensively with postal technology. He told NOTUS that USPS would ordinarily devote at least a year to implementing something like this, including national meetings and training for thousands of election boards. “This is not something where you just flip the switch and turn it on,” he said. Without normal testing and preparation, Day estimated error rates could reach 20 to 30 percent, a prospect he called a “disaster.” (Update: Commissioner Day has submitted an exparte notice of ex parte communication clarfying his comments to NOTUS.)

In July, the government told the Supreme Court implementation needed to begin by early to mid-August. August has now ended, the rule’s mandatory requirements are again enjoined, and the first states begin mailing ballots later this week.

The courts may ultimately decide that the Postal Service has the authority to impose the rule. But every day spent resolving that legal question makes another question more pressing: Even if the rule is lawful, is there still enough time to impose it safely on the 2026 election? The evidence increasingly suggests that the answer is no.

— Steve Hutkins

(Featured image: OIG report Service Performance of Election and Political Mail During the 2024 General Election)