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)