New York Times: President Trump’s legal and rhetorical assault on voting by mail — and the flurry of contradictory court decisions around it — has left voters confused and local officials scrambling just eight weeks before November’s critical midterm elections.

The contortions have county registrars dusting off Election Day contingency plans developed for natural disasters like floods and wildfires. They have struggled to make it through planning meetings before the latest version of the rules change, and many are encouraging voters to avoid the U.S. Postal Service all together.

Among voters, confusion abounds.

“I don’t trust mail-in or in-person, to be honest with you,” said Lori Woo, a 53-year-old teacher from Wildomar, Calif. She has voted both in person and by mail and now wonders whether any of her votes were counted.
Arizona officials have been encouraging voters like Antonio Bergier, an 83-year-old retired geologist, to drop off ballots in person. But he said he didn’t know whether his hometown, Patagonia, or his county, Santa Cruz, had ballot drop boxes — nor would he use them anyway.

Mail, he said, is “the only way they’re getting my vote this year.”

Twenty states are set to mail ballots to voters by Sept. 19, starting with North Carolina, which began sending out absentee ballots on Friday.

“We plan to proceed as planned,” Sam Hayes, the director of North Carolina’s elections board, said at a news conference on Thursday.

But even election officials were reluctant to issue reassuring encomiums.

“I wish that I could tell my constituents to not worry, and I can’t,” said Gabriella Cázares-Kelly, who oversees elections in Pima County, Ariz., where 85 percent of ballots are delivered early or by mail.

In many places with mail-in voting, the bulk of ballots aren’t scheduled to go out for another month. But the response has already begun.

In Los Angeles County, one of the largest voting districts in the nation, elections officers have responded to the uncertainty with ballot distribution and collection plans that were deployed after the devastating Eaton and Palisades wildfires of 2025. Ideas include expanding in-person options like pop-up voting sites, places where people could request and fill out ballots.

“If this is a problem, let’s make it an administrative problem, not a voter problem,” said Dean Logan, the L.A. County registrar. “We do not want voters to be deterred from voting.”

In Arizona, Ms. Cázares-Kelly described a flood of calls from worried voters. During a briefing this week with Arizona’s secretary of state, attorney general and 15 county recorders about the proposed Postal Service mail-ballot rule, news broke of an emergency filing from the Trump administration trying to reinstate parts of the rule a court had blocked.

And in Leon County, Fla., the elections supervisor, Mark Earley, and his team had envelopes with trackable bar codes on every mail ballot, as the Postal Service wanted. But this week, when the county submitted its envelope for inspection, federal officials rejected it. Mr. Earley worries there isn’t enough time to revamp the envelopes, get the Postal Service’s approval and send ballots.

“If the rule goes into effect, we will have tens of thousands, if not hundreds of thousands of disenfranchised voters in Florida,” he said. “And nationwide, millions, without a doubt.”

Read more.

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)

Erik Katz, Notus: President Donald Trump’s push to have the U.S. Postal Service screen voters for eligibility in the midterm election is running up against tight deadlines that some officials are warning will cause massive errors and disenfranchisement.

The Supreme Court this week temporarily allowed the Postal Service to move forward with a new plan — based on a Trump executive order — that would require states to submit lists of their eligible voters to the mailing agency, which would then ensure no ballots are mailed to individuals not on those lists.

While the rule faces several renewed legal challenges, USPS now has just weeks until some states begin sending out ballots ahead of the November elections, and it has to bring thousands of state and local offices up to speed on the new steps.

USPS has proposed something it has never done before, which would require a heavy lift, said Tom Day, a Postal Service executive for 35 years who spent parts of his career personally responsible for developing the network technology the agency would need to carry out its rule.

“This is not something where you just flip the switch and turn it on,” said Day, an appointed member of the Postal Regulatory Commission since 2023. “I don’t know how the hell they’re going to do it.”

Under Trump’s order, the agency must develop a process to cross-reference all outgoing ballots against still-to-be-submitted lists from states. While the Postal Service has for decades automated the processing of mail and reading of addresses, it has not used those capabilities to pick out mailers ineligible to use its network.

While states will maintain full control over who is on their eligibility lists, a final regulation put forward last week calls on USPS to do exactly that.

The Postal Service is currently working on technical solutions to implement the rule, according to a source familiar with the planning, who added that the agency is focusing on ensuring its review of mailed ballots against state-provided lists is error-free.

Day, however, said that was an impossible goal and erroneously denied ballots are inevitable.

“No system works at 100% accuracy,” he said.

The Postal Service typically would spend at least a year rolling out a new system like the one that will be required for ballot screening, hold a conference for all impacted jurisdictions and provide training to 8,000 election boards around the country, Day said.

He noted that without all of those steps, and with some states sending out ballots as soon as early September, he expects a 20% to 30% error rate, “and that would be a disaster.”

“We haven’t run the tests to give us the validity that the damn thing will work,” Day said. “To do it in three weeks, my God, there’s no way.”

Read more: Postal Officials Say Trump’s Mail-Ballot Push Will Create Widespread Errors – NOTUS — News of the United States

Verdict Justia: Two decades ago, the Supreme Court had the wisdom to foresee the trouble that would ensue if courts made decisions about voting and elections when an election was looming. In the run-up to the 2006 midterms, the Court “reinstated a previously blocked citizenship law in Arizona”—Proposition 200—“just two and a half weeks before Election Day.”

In a per curiam decision, the Court articulated the so-called Purcell Principle. “Court orders affecting elections,” it said, “especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”

And, as a result, courts should stay their hand. However, the Supreme Court did not define the precise period within which they should do so.

But the principle was clear enough in telling courts not to rock the boat if doing so might undermine democracy’s greatest moment, the moment voters go to the polls.

In a line that seems to have been forgotten by the Justices who sided with Trump yesterday, the Purcell Court explained, “‘A State indisputably has a compelling interest in preserving the integrity of its election process.’ …Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”

Moreover, Harry Dodsworth argues that despite being “sorely misunderstood…the Purcell Principle has morphed into one of the Supreme Court’s most powerful election-law doctrines. By and large, the Court has interpreted the principle as a bright-line rule barring any judicial intervention close to elections…”

While Dodsworth suggests that, instead of promoting participation in elections, the Court “has overwhelmingly used the principle to uphold voting restrictions,” he credits it with targeting the problem of “voter confusion.”

On Monday, in Trump v. California, the Court turned its back on the Purcell Principle and with little more than two months to go before the November election set the stage for electoral chaos and confusion. It said nothing about a second injunction, issued on August 11, even as it stayed the June 25 injunction issued by the same Massachusetts federal judge, Indira Talwani, preventing the president from ordering the United States Postal Service not to deliver mail-in ballots to people whose names the federal government has not approved. The stayed June 25 injunction covered only the 23 plaintiff states and D.C. Judge Talwani’s August 11 order, which blocks USPS nationwide, remains in place for now—but the Court’s silence on it signals that it too is vulnerable, and states cannot plan an election around an injunction the Court has declined to defend.

The Court’s decision not only disregards its own precedent, but it is another moment when the Justices seem to want to get out of the way of Trump’s attack on democracy. Pro-democracy forces need to redouble efforts to make sure that no eligible voters are intimidated or discouraged from voting by the Trump Administration.

Voter intimidation seems to have been the object of the president’s March Executive Order entitled “ENSURING CITIZENSHIP VERIFICATION AND INTEGRITY IN FEDERAL ELECTIONS.” It directed the Secretary of Homeland Security to compile “State Citizenship List[s]” cataloging each state’s citizens of voting age and send them to the states, and directed the Attorney General to prioritize prosecuting state and local officials who issue ballots to ineligible voters.

The people who wrote our Constitution would be appalled. They specifically assigned authority over the manner of holding elections to the states.

In addition, §3(b) of the executive order directed the Postal Service to “initiate a proposed rulemaking” to “protect the integrity of the mail as a medium for transmitting Federal election ballots and establish uniform standards for mail-in or absentee ballot services…” States went to court to block the plan and won.

In Monday’s truly bizarre ruling, the Court, as Democracy Docket notes, “found that the Democratic-led states that sued to block the order had not yet been harmed because it hadn’t been implemented yet” and that “the lower court issued the injunction prematurely.” 

The Court called the executive order “an internal directive from the President to a subordinate. It imposes no obligations on the States, so they ‘suffer no concrete harm from’ it…. And without concrete harm, there is no standing.”

It went out of its way to suggest that “disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell.”

Time. What time? When?

The whole point of Purcell was not to leave the people in charge of elections or the voters hanging.

But the story is not over.

Read more: Supreme Court Decision Letting the President Get the Postal Service Involved in Deciding Who Gets Mail-In Ballots Spells Election Chaos | Austin Sarat | Verdict | Legal Analysis and Commentary from Justia

The Postal Service has issued its final rule governing ballot mail for federal elections. It’s mostly the same as the proposed rule, but the background discussion of the rule contains a new, noteworthy development: The Postal Service is now taking responsibility for the final decision.

The proposed rule issued on June 2 made it appear as if the Postal Service was simply complying with the President’s Executive Order: “The Postal Service is proposing to amend the Mailing Standards … consistent with Section 3 of Executive Order 14399.”

The order, issued on March 31, had stated, “Any final rule pursuant to this section shall be issued no later than 120 days from the date of this order.” The word “shall” made it sound as though the President was directing the Postal Service to issue a final rule implementing his new election-mail policies. 

But the word “any” was doing considerable work there. The order expressly directed the Postmaster General to “initiate a proposed rulemaking,” but it did not say that the Postal Service shall issue a final rule. It said only that “any final rule” had be issued within 120 days. It was, of course, very unlikely that the Postal Service would not issue a final rule, but the distinction would prove strategically important in court.

A recurring theme in the court cases on the order has been the government’s argument that the challenges were premature because USPS had not yet issued a final rule. A preliminary injunction was therefore inappropriate: Wait and see what USPS decides after notice and comment.

That argument necessarily placed responsibility for the final decision with the Postal Service, even as the rulemaking continued to look like implementation of the President’s policy.

As the USPS reports in the background discussion accompanying the final rule, some commenters on the proposal argued that it was unlawful for the President to give directions to the Postmaster General as the head of an independent agency. That sharpened the issue: Who was ultimately responsible for the final rule?

The final rule answers the question explicitly. The Postal Service now says that while the Executive Order “was relevant to the Postal Service’s consideration . . . the Executive Order did not mandate a final rule.”

Instead, “the Postal Service has determined” that the requirements of the EO will “advance the Postal Service’s operational interests,” and it is therefore “appropriate to exercise its statutory authority to promulgate these provisions.”  Therefore, “considerations of Postal Service independence are not relevant to this rulemaking.”

This distinction will help the government defend itself against claims that the President unlawfully commanded an independent Postal Service to regulate elections. 

But it has another consequence. Whatever problems the rule causes will be on the Postal Service. If implementation ultimately results in the Postal Service refusing to carry millions of ballots, the agency cannot simply say the President required it to do so. The final rule says otherwise. The Postal Service now owns it. 

States must give the Postal Service a mail-voter list, or else

The final rule says that “any state that intends to receive mail-in or absentee ballots from individual voters through the Postal Service must ensure that such individuals have been enrolled with the Postal Service.”

Enrollment requires election officials to submit voter-level information through a new Federal Ballot Mail Portal. For each voter, that includes the person’s name and address, the unique Intelligent Mail barcode on the outbound ballot envelope, the unique IMb on the return ballot envelope, and the state of the originating election office.

The Postal Service emphasizes that it “will not play any role in determining voter eligibility, maintaining voter rolls, or counting ballots,” nor will it know how anyone voted. But it will require states to provide a federal list of people receiving mail ballots and link each person to identifiers for the outbound and return envelopes. 

For states like California, Oregon and Washington, which send ballots to essentially their entire active electorates, the Participation Lists would amount in practical terms to mail-voter rolls covering virtually all active voters.

Providing the Participation List is not optional for states that want to use the USPS to deliver ballots. The requirements “must be satisfied prior to presenting Outbound Federal Ballot Mail for acceptance into the mailstream.” 

USPS states the consequence plainly: “The Postal Service will generally not accept Outbound Federal Ballot mailings unless compliance with the rule’s new standards has been verified.”

In other words, the Postal Service is not formally requiring states to conduct elections through the mail. But if a state wants USPS to transport its federal-election ballots, it must comply with the rules. For a universal-mail state, the practical choice is stark: provide USPS with voter-level information covering virtually the entire mail electorate, or risk having USPS refuse the ballots.

If a state refuses to provide the required mail-voter list and the Postal Service follows through with this threat, the damage to the USPS brand would be immense and irreversible. And the controversy will not be confined to what the President ordered. It will concern a policy the Postal Service says it made for itself. 

As the court cases proceed, the question of whether the President had the authority to direct an independent Postal Service to initiate this rulemaking may become secondary. The bigger question will be whether Congress gave the Postal Service itself the authority to impose these conditions on ballot mail.

The rule creates more legal trouble

Two federal injunctions currently prevent implementation of the final rule for the November election, but by issuing the final rule now, the Postal Service has positioned itself to act quickly if the government obtains relief with a ruling by the Supreme Court, expected any day now.

In fact, the “effective date” of the rule is August 21, 2026 — the date it was filed with the Office of the Federal Register and made available for public inspection. That’s five days before the rule will be published in the Federal Register.

The Postal Service’s decision to issue the rule now and to make the effective date “immediate” has already landed it in trouble. Yesterday, the plaintiffs in the League of Women Voters of Massachusetts v Trump filed an emergency motion and memorandum in support of the motion arguing that the final rule is a violation of Judge Talwani’s August 11 injunction, and they are asking her to declare the rule to have “no force or effect” for this year’s elections. Today Judge Talwani told the parties that she is prepared to stop publication of the final rule altogether, and she gave the government until 8 a.m. on August 25 to respond — four hours before the Federal Register’s deadline to withdraw a document.

Over the next few days, the plaintiffs in California v. Trump will presumably notify the Supreme Court that the Postal Service has issued the final rule. That would appear to remove a central premise of the government’s argument that the injunction is premature and should be stayed: the Postal Service has now made the final decision the government said the courts should wait for.

Issuing the final rule was intended to put the Postal Service in a position to move quickly, but it may have made the legal path to implementation even more difficult.

For the sake of the Postal Service and its reputation, one can only hope the courts will save the post office from itself.

— Steve Hutkins

Sometime this week, the Supreme Court is expected to rule on the DOJ’s application to stay an injunction that has barred federal agencies from fully implementing Trump’s executive order on mail voting. The ruling will probably determine if the order can be implemented in time to impact the November midterms.

The case involves Executive Order 14399, “Ensuring Citizenship Verification and Integrity in Federal Elections,” issued on March 31. The order directs agencies, including the Department of Homeland Security and the Postal Service, to establish new procedures for absentee ballots and to develop citizenship verification lists for states.

Three lawsuits have been filed to prevent implementation of the order and the associated rule change proposed by the Postal Service: California v. Trump, League of Women Voters of Massachusetts v. Trump, and DSCC v. Trump. A fourth case, NAACP v. U.S. Postal Service, which originated in 2020, was renewed as well. The cases raise overlapping but somewhat different claims concerning the President’s authority, state control over elections, voting rights, and the Postal Service’s authority to impose new requirements on ballot mail.

On April 3, in California v. Trump, twenty-three states filed a complaint challenging the order and seeking to block its implementation. On June 25, U.S. District Judge Indira Talwani granted the states summary judgment on several claims, ruling that the order was unlawful and enjoining implementation for the 2026 election. On July 27, the First Circuit declined to stay Talwani’s injunction while the government’s appeal proceeded, concluding that the government had not made the showing required for emergency relief.

The Trump Administration then filed an emergency application with the Supreme Court, asking it to stay Talwani’s injunction while the appeal proceeds so the government could move forward with implementation in time for the November midterms.

If SCOTUS denies the stay, Talwani’s California injunction remains in effect while the appeal proceeds. If SCOTUS grants the stay, the government could resume implementation of the provisions blocked in California. But whether that would clear the way for the Postal Service to implement its new ballot-mail regulation for the midterms now depends largely on what the Supreme Court says — and on a second injunction Talwani issued last week.

On August 11, Talwani issued a separate preliminary injunction in League of Women Voters, barring USPS nationwide from completing the rulemaking necessary to promulgate the regulations contemplated by the Executive Order. The League litigation challenges the order on constitutional and statutory grounds, and Talwani previously held that the plaintiffs had adequately alleged that the provision exceeds the authority Congress gave USPS and improperly inserts the Executive Branch into state mail-ballot administration.

The DOJ has now brought the League injunction to the Supreme Court’s attention and wants the Court to explain its ruling in California in a way that would effectively undermine the basis for Talwani’s new injunction. A ruling in California would not itself formally stay the League injunction, since that case is not presently before the Supreme Court. But a sufficiently broad ruling on standing or ripeness could make it difficult for Talwani or the First Circuit to leave the League injunction in place. That could then clear the way for the order and postal rule to be implemented for the November election.

The Proceedings

In response to the DOJ’s application for a stay in California, fourteen amicus briefs were filed in the case, one supporting the DOJ and thirteen opposing the stay. The briefs come from former judges, governors, election officials and advocacy groups. 

Here’s a summary of the documents filed in the proceedings. The links go to the documents on the Supreme Court docket page. A consolidated pdf with all of these documents can be found here. 

Application for a stay: The Solicitor General’s application for the stay argues that the case is premature. DOJ contends that because the USPS ballot-mail rule is still in the rulemaking stage, it creates no binding obligations. Agencies may revise rules after public comment, making judicial speculation about a final rule’s impact inappropriate at this stage.

Regarding the citizenship lists, DOJ argues that DHS is still considering how to implement the Executive Order. Since future actions are uncertain, any alleged injuries are speculative. Furthermore, the government claims the injunction causes irreparable harm by preventing the Executive Branch from carrying out presidential directives.

Opposition to application for a stay: The plaintiff states, California et al., argue the dispute is ripe because the Executive Order is already forcing them to change behavior. To prepare for the 2026 midterms, election officials must act now — designing ballots, retaining vendors, and training workers. They argue they cannot wait for the final stages of federal rulemaking. The states also emphasize that the government itself says implementation must begin as soon as early to mid-August if the policies are to be used in November.

While the government characterizes the proposal as an ordinary rulemaking process, the states, along with several of the amicus briefs, argue that Congress has not given the Postal Service authority to restrict absentee balloting, regulate voter eligibility, or create the contemplated voter-list system. They see the Executive Order as upsetting the constitutional balance between federal and state power.

The single amicus brief supporting the government was filed by America’s Future, Citizens United, Citizens United Foundation, and allied organizations. Unlike the Solicitor General’s application for a stay, which concentrates on ripeness, standing, and final agency action, this brief defends the Executive Order on the merits. It argues that the President may direct executive agencies to enforce existing election laws, that a national list of citizens eligible to vote is important to election integrity, and that the district court rewarded forum shopping. It also discusses noncitizen voting, the Take Care Clause, and related election-integrity concerns.

The DSCC brief was filed by the Democratic Senatorial Campaign Committee, Democratic Congressional Campaign Committee, Democratic National Committee, Democratic Governors Association, Senator Charles Schumer, and Representative Hakeem Jeffries. They argue that political parties and candidates are already changing voter education, absentee-ballot outreach, and resource allocation because of the Executive Order. Their brief also argues that DOJ cannot simultaneously claim implementation is too speculative for judicial review while insisting it is too urgent to delay (the “too early, too late” argument). DSCC, it should be noted, is the plaintiff in a separate case in which Judge Nichols denied preliminary relief as premature; on July 28, the D.C. Circuit upheld that result, concluding that the challenge was likely unripe.

The Society for the Rule of Law, which describes itself as a conservative organization, focuses its opposition to the stay on the Postal Service provisions. It argues that neither the Constitution nor the National Voter Registration Act, the Help America Vote Act, the Voting Rights Act, nor Title 39 authorizes USPS to regulate voter lists or refuse ballot mail. It also develops the “too soon, now too late” argument, contending that delaying judicial review now because it’s too soon (unripe) could allow the government later to invoke the Purcell principle and argue the proximity of the election as a reason courts should not intervene.

The Bipartisan American Election Project (BAEP) brief was prepared by veteran Republican and Democratic election lawyers. It argues that the Executive Order is already forcing states to divert resources, redesign election procedures, and prepare for federal requirements that conflict with state law. Its distinctive contribution is to combine bipartisan election-law experience with a practical account of the realities of administering elections.

The Bipartisan Former Governors brief represents the views of twenty-six former governors. They focus on constitutional structure and federalism. They argue that the Elections Clause deliberately places election administration primarily in state hands, subject to Congress’s authority, and that decentralization protects democracy by making national manipulation far more difficult. Their brief emphasizes their own institutional experience and the constitutional allocation of authority rather than technical administrative-law doctrine.

The Former Federal Judges brief is by 56 former judges, including federal and state judges appointed by Presidents and governors of both major political parties. Thirty-three of them were appointed by Republican Presidents or governors or ran for their positions as Republicans. They frame the dispute through the Supreme Court’s traditional standards for granting a stay. Rather than emphasizing election policy, they argue that the public interest favors preserving the injunction because there is generally “no public interest in the perpetuation of unlawful government action.”

The brief by State and Local Election Officials, Local Governments, and the Center for Election Innovation & Research (CEIR) explains why preparation for the November 2026 election is already underway, why states cannot simply “wait and see,” and why threats of federal enforcement are already affecting election administration. The brief also takes note of the fact that OIRA listed the Postal Service ballot-mail rule as “pending” and in the “Final Rule” stage as of July 30, making the controversy more concrete than DOJ suggests.

The Harris County, Texas brief offers a practical case study explaining why the Executive Order cannot realistically be implemented before the November election. It argues that Texas law conflicts with several provisions of the order, that new ballot-envelope requirements would be extraordinarily difficult to administer, and that there is simply insufficient time to redesign election procedures.

The Wisconsin Democracy Campaign and EXPO Wisconsin use Wisconsin’s highly decentralized election system as a case study. The brief explains how nearly 1,900 municipal clerks, county officials, and the Wisconsin Elections Commission share election responsibilities, making late federal changes uniquely disruptive. It also emphasizes the ways in which the Executive Order would conflict with Wisconsin election law.

The American Association of People with Disabilities (AAPD)  focuses on absentee voting as an accessibility issue. It argues that many disabled voters cannot simply vote in person. Changes in mail-ballot procedures and additional federal verification requirements create new opportunities for error, delay, and disenfranchisement.

The National Security Leaders for America brief, addressing military and overseas voting under UOCAVA, concentrates on military and diplomatic personnel, their families, and other voters protected by UOCAVA. It argues that overseas voters may have little opportunity to correct mistakes or simply appear at a polling place if ballots are rejected.

The Asian Law Caucus, AALDEF, Common Cause, and allied organizations focus on the communities most likely to be affected. They argue that federal citizenship databases are incomplete and susceptible to mismatch errors, particularly involving naturalized citizens, meaning that immigrant communities, language minorities, and other vulnerable voters could bear a disproportionate share of the burden if the Executive Order were implemented.

Attorney Corey J. Biazzo, appearing as an individual amicus, argues that preserving the injunction is less disruptive than implementing an untested federal program. He suggests that if the Court grants partial relief, it should preserve the injunction against voter-specific ballot-mail conditions, nonacceptance of ballot mail, and enforcement based solely on omission from or nonparticipation in the federal lists.

DOJ reply: In its reply, the Solicitor General does not address the specific issues raised in the amicus briefs. Instead, he doubles down on the argument that the case is premature and relies heavily on the D.C. Circuit’s July 28 decision in DSCC v. Trump, which concluded that the challenge there was likely unripe because the Executive Order is not self-executing and further agency action remains necessary. DOJ also emphasizes that USPS has not issued a final rule and argues that the Executive Order required USPS only to propose certain provisions, not necessarily to adopt them.

Supplemental Brief in Support of Application for a stay: On August 12, the DOJ pointed to the district court’s ruling in League and stated, “The district court’s new order confirms the urgent need for this Court to grant  the stay of the permanent injunction and to explain its rationale for doing so.” The DOJ wants to prevent a situation where SCOTUS grants a stay in California but with a rationale that ends up leaving the injunction in place for League. “Otherwise, the district court’s erroneous orders will effectively run out the clock on the government’s ability to implement Section 3 of the Executive Order for the federal elections in November.”

In response, the states immediately filed a supplemental brief arguing that the two cases involve distinct legal issues. If the government believes a stay in the League case is warranted, “the proper course is to seek a stay in that case and to give those plaintiffs an opportunity to respond.” In other words, a stay in California should have nothing to do with a stay in League.

As noted above, a pdf compiling all the documents submitted on the stay application can be found here.

— Steve Hutkins

(Image Credit: Collection of the Supreme Court of the United States)

Democracy Docket: A federal judge in Massachusetts Tuesday issued another order blocking the United States Postal Service (USPS) from implementing President Donald Trump’s sweeping attack on mail voting and his attempt to create a national voter registration list before the midterm elections.

District Judge Indira Talwani agreed with a coalition of voting-rights groups led by the League of Women Voters of Massachusetts that Trump’s March 2026 anti-voting executive order (EO) was likely unconstitutional, noting that the administration didn’t even attempt to argue otherwise.

“Throughout the multiple actions before district courts, courts of appeal, and the Supreme Court of the United States, the federal government has declined to defend the constitutionality of the EO’s directives,” Talwani wrote. “Instead, the federal government has asked this court and others to postpone judicial review on standing and ripeness grounds, arguing that no party may challenge the EO’s constitutionality until the USPS promulgates a Final Rule.”

Despite the government’s requests to the contrary, Talwani decided to review the EO because less than 90 days remain before the midterm elections and millions of Americans who “rely on mail voting require clarity as to how or whether they will vote in November,” she wrote.

This is the second time Talwani has blocked implementation of Trump’s EO. But unlike the first, this preliminary injunction will now cover the entirety of the nation. In June, the judge ruled in a separate lawsuit and prohibited the order’s implementation in 23 states and Washington, D.C., which she alluded to in her order Tuesday.

After the 1st Circuit Court of Appeals upheld that earlier decision, the Trump administration appealed to the Supreme Court, which accepted briefing on an emergency stay request last week and could issue a ruling any day now to either suspend Talwani’s order or affirm it.

Meanwhile, in two separate lawsuits, the federal appellate court for the District of Columbia has allowed the federal government to continue implementing the order.

Read more: Federal judge blocks Trump’s anti-mail voting executive order again — this time nationwide – Democracy Docket

Earlier this week, the Campaign Legal Center and Democracy Defenders Fund, on behalf of League of United Latin American Citizens, Secure Families Initiative, Arizona Students’ Association, and City of Madison, Wisconsin, filed a complaint with the Postal Regulatory Commission arguing that the Postal Service failed to request an advisory opinion for its proposed rule change on ballot mail for federal elections.

The complaint claims that the proposed rule violates the advisory opinion statute, 39 U.S.C. § 3661(b), which states that the Postal Service must request a PRC advisory opinion when it plans to implement a significant nationwide change in the nature of postal services. According to the complaint, the ballot mail rule clearly represents such a change.

In many respects, the complaint is the direct consequence of the D.C. Circuit’s ruling in New York v. Trump in July. That case originated back in 2020, when the Postal Service implemented major operational changes that threatened to slow the mail before the November election. The district court ultimately held that the Postal Service had violated Section 3661 by implementing nationwide operational changes without obtaining an advisory opinion.

The government appealed to the D.C. Circuit, and finally, on July 14, 2026, the court issued its ruling vacating the district court’s judgment and instructing the district court to dismiss the Section 3661 claim. The court ruled that allegations of a violation of Section 3661 must first go through the PRC complaint process under 39 U.S.C. § 3662(a) before turning to the courts for relief.

Rather than challenging the Postal Service’s noncompliance with Section 3661 in district court, the complainants this week have done exactly what the court said they should do: file a complaint with the Postal Regulatory Commission under Section 3662.

The complaint argues that the proposed rule also violates 39 U.S.C. § 403(c), which prohibits undue or unreasonable discrimination among users of the mail. According to the complaint, election jurisdictions able to satisfy USPS’s new technical requirements would continue receiving normal ballot-mail service, while jurisdictions unable to comply could have ballot mail refused or delayed, resulting in discrimination among election officials and the voters they serve.

The Commission now has a second docket addressing whether the Postal Service was required to obtain an advisory opinion before issuing the proposed rule. Also pending is a petition filed in June by Sai and Fiat Fiendum, Inc., which argues that because the Postal Service has not requested an advisory opinion, the Commission itself must institute proceedings. The petitioners have filed several supplements to the original filing, including one yesterday, but the Commission has not yet acted on the petition. (More on the petition here.)

The complaint argues that the Postal Service must obtain an advisory opinion before implementing the proposed rule because it satisfies each element of section 3661, in accordance with its application in the landmark 1975 case, Buchanan v. U.S. Postal Serv.

Under Buchanan, an advisory opinion is required before implementing a proposed change when three factors are met: (1) it must be a “change” that has “some meaningful,” rather than “minor,” impact on service; (2) the change is “in the nature of postal services,” meaning it alters the manner in which postal services are available to users; and (3) the change affects service “on a nationwide or substantially nationwide basis” — i.e., over a “broad geographical area.”

The complaint explains how the proposed rule meets all three of these criteria:

1. The change is meaningful, not minor: “On its face, the Proposed Rule’s reach is extraordinary: it changes the conditions and procedures for every mail-in and absentee ballot transmitted through the Postal Service in all fifty States. The volume of mail affected is enormous. In 2024, the Postal Service delivered at least 99 million ballots to or from voters — a significant percentage of all Postal Service customers — and nearly one in three Americans who voted did so by mail. The Proposed Rule would change the preparation, acceptance, and delivery of that entire ballot-mail stream.”
2. The changes are “in the nature of postal services” because “ballot delivery is an essential postal service. For the millions of Americans who cannot vote in person, the mail is the only means by which they exercise the franchise. A change that risks withholding or delaying their ballot strikes at the core of the consumer experience section 3661 was designed to protect.”
3. The proposed rule’s changes to ballot mail will affect service on a nationwide basis because it applies uniform standards for the mailing of absentee ballots to and from voters without any geographic limitation. “It applies to all States where ballots are mailed to voters — that is, all States. And all States must choose whether to comply with the Proposed Rule’s conditions or effectively eliminate their entire vote-by-mail program.”

The Postal Service, it may be noted, has thus far addressed the Section 3661 issue only very briefly. In a footnote to its response to the petition filed by Sai and Fiat Fiendum, the Postal Service stated that “the proposed rule is clearly not a change in ‘the nature of postal services’ under section 3661.”

The Postal Service offered no further explanation for this claim. It may now need to do so when it responds to the complaint filed this week.

One of the claims in the district court complaint in State of California v. Trump was that the Postal Service could not implement the proposed rule without complying with Section 3661. The government’s application asking the Supreme Court to stay the injunction in that case is currently pending, with a decision possible at any time. (Section 3661 was also discussed in comments filed by state attorneys general on the rulemaking last month.)

This week’s complaint requests that “the Commission order the Postal service to request an advisory opinion of the Commission pursuant to 39 U.S.C. § 3661 prior to implementing the Proposed Rule (or a substantially similar final rule) and to immediately cease any and all implementation of the Proposed Rule until it has obtained such an opinion.”

By not responding to the petition filed by Sai and Fiat Fiendum, the Commission has thus far avoided entering the fray over the Postal Service’s new role in mail voting. The new complaint will make it more difficult for the Commission to avoid addressing the issue.

— Steve Hutkins

(Featured image: A voter mails an absentee ballot in Washington, D.C. Photo by Casey Atkins/Campaign Legal Center)

Democracy Docket: The Department of Justice (DOJ) asked the Supreme Court to allow President Donald Trump’s sweeping attack on mail voting to go into effect before the upcoming midterms.

The DOJ’s emergency appeal to the Supreme Court Monday came days after a three-judge panel for the First Circuit Court of Appeals upheld a lower court order blocking the U.S. Postal Service (USPS) from implementing Trump’s March executive order attacking mail voting.

On March 31, 2026, President Trump signed Executive Order 14399, “Ensuring Citizenship Verification and Integrity in Federal Elections.” On June 2, 2026, as directed by the order, the United States Postal Service published a proposed rule, “Ballot Mail for Federal Elections,” in the Federal Register.

The proposal would establish new nationwide requirements governing the preparation and handling of ballot mail for federal elections.

The Postal Service provided a 30-day public comment period, which closed on July 2, 2026. The order directs the Postal Service to issue a final rule, if any, no later than 120 days from the date of the order, which would be on July 29, 2026.

Unlike most federal agencies, the Postal Service does not publish the comments it receives in response to proposed rules. We’ve therefore put together a compilation that brings together comments that were made publicly available by their authors or obtained from other public sources.

View the compilation document here.

After the compilation was prepared, four additional comments came to light.

The updated compilation document with these additional comments is here.

There’s more about the comments and lawsuits in this previous post.