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