The Postal Service is once again being embroiled in the national debate over voting by mail.

In March the President issued an executive order on mail voting that represents an unprecedented federal intervention into the election system, with the Postal Service playing a key role.

Earlier this week the Postal Service published a proposed rule in the Federal Register intended to implement the changes mandated by the executive order.

Under the order, states would be required to provide voter and ballot data to the Postal Service, and the agency would assume an active role in determining which ballots may be carried through the postal system.

The proposed rule will be subject to a 30-day public comment period before it can be finalized. It’s not clear at this point if the executive order and the Postal Service’s proposed changes will be implemented before the November election, but that’s a distinct possibility. It would cause innumerable problems.

Earlier controversies

This is not the first time the Postal Service has found itself at the center of an election controversy.

In the summer of 2020, just months before the election, Postmaster General DeJoy, a major Trump contributor, made operational changes that caused a steep decline in delivery times. Multiple lawsuits argued that the moves were politically motivated to suppress the mail vote, and postal officials had to testify in court to justify the changes.

Earlier this year, the Postal Service issued a rule in the Federal Register alerting the public about its postmarking policies and procedures. Under a new initiative called Regional Transportation Optimization (RTO), mail is no longer collected at the end of the day at three-fourths of the nation’s post offices.

Postmarks are thus applied the day after the mail is sent. For states that have a grace period during which ballots are accepted if they’re postmarked by Election Day, this means many more ballots will be disqualified. States are already seeing a spike in ballot rejections, as discussed in this previous post.

The postmark issue could become irrelevant, however. A case currently before the Supreme Court,  Watson v. Republican National Committee, involves a challenge to the practice of accepting ballots after Election Day. If the Court rules that the grace period is unconstitutional, as it seemed inclined to do during oral arguments, all mail ballots in national elections would need to be received at election centers by Election Day. Delays caused by the RTO may still cause more ballot rejections, however, which may be behind the spike in late ballots last week in the Wisconsin election.

What the Executive Order Requires

Under Trump’s March 31 executive order, “Ensuring Citizenship Verification and Integrity in Federal Elections,” federal agencies will create lists of individuals deemed eligible to vote in federal elections. States that wish to use mail voting would need to coordinate with the Postal Service and provide information about voters receiving mail ballots.

The lists would include voter information and unique ballot identifiers. States would also be required to use unique barcodes on both outbound ballot envelopes and return envelopes.

While seemingly technical in nature, these changes represent a major transformation of the role of the Postal Service in elections.

Historically, election officials have determined voter eligibility, maintained voter rolls, mailed ballots, and counted votes. The Postal Service functioned primarily as a neutral delivery service. Under the proposed framework, the Postal Service would become an active participant in determining whether ballot mail meets federal requirements.

The proposal is likely to trigger extensive litigation, with several lawsuits already pending that challenge the executive order. Legal experts expect additional lawsuits to focus specifically on the Postal Service implementation efforts, creating significant legal uncertainty.

Problems and Risks

The proposed rule has drawn extensive criticism from legal scholars, postal policy experts, election administrators, and lawmakers.

The Brennan Center for Justice and other groups are challenging the executive order in court on constitutional grounds. State election officials, such as Washington Secretary of State Steve Hobbs, argue the proposed changes are unnecessary and do nothing to provide security in elections.

Senator Alex Padilla of California, as well as other legal experts, have also raised concerns about the independence of the Postal Service and the risk of extensive litigation.

Postal policy expert Kevin Kosar has listed numerous concerns about the technical complexity, governance, and legal authority of the USPS involvement.

Here’s a summary of the main concerns and criticisms.

Constitutional and Legal Authority Challenges: The Constitution assigns primary responsibility for election administration to the states, subject to Congress. The Brennan Center argues the executive order attempts to put federal agencies, including the Postal Service, in charge of determining who may vote by mail, a role reserved for states under existing law. Furthermore, as Kosar notes, it’s not clear whether postal law actually authorizes the Postal Service to act as an enforcement mechanism for election law and citizenship verification.

The Postal Service Governance and Independence Question: The Postal Service has statutory independence, and oversight is by the Board of Governors, not the executive branch. As Senator Padilla has stated, the Postal Service is intended to operate as an independent agency and should not be directed to implement partisan election policies.

Risk of Eligible Voters Being Excluded: One of the most frequently cited concerns is that eligible voters could be omitted from federal voter lists due to errors, outdated information, or incomplete federal databases. The federal data sources that will be used to verify voter eligibility were not designed for election administration and may contain inaccuracies or gaps.

Ballot Delays: Introducing new verification procedures could slow down critical ballot distribution and return processing. Since mail voting relies on precise timelines, any delays caused by data mismatches, technological failures, or administrative errors could prevent ballots from reaching voters or being counted before deadlines.

Privacy and Data Security Concerns: Centralizing voter information, which includes requiring states to share data about voters receiving mail ballots, raises questions about privacy, data security, and the potential misuse of election-related information.

Administrative and Financial Burdens on States: State election officials warn that compliance could require costly changes to their existing administration systems. States would need to create new procedures for transmitting voter data to the Postal Service, resolving discrepancies, and managing barcode systems, imposing significant additional administrative burdens and costs on local offices. Implementing a massive, nationwide system overhaul only months before a federal election would be plagued by operational complications.

Interference with Existing Successful State Systems: Officials in states that rely heavily on mail voting (such as Washington, Oregon, Colorado, Utah, and Hawaii) have expressed concerns that the proposal could interfere with systems that have operated successfully for years, challenging state authority without providing meaningful security benefits.

Need for Congressional oversight: Kosar argues Congress should hold public hearings to provide transparency and scrutiny regarding how this complicated inter-agency system would actually work before proceeding with dramatic changes.

What Happens Next

The proposed rule was published in the Federal Register on June 4. The public has 30 days to submit comments. The Postal Service will review those comments and possibly implement revisions before issuing a final rule. State election officials, advocacy groups, political organizations, and members of the public are expected to participate heavily in the process.

At the same time, litigation over the executive order continues. Several courts are considering challenges to the administration’s efforts to reshape election procedures, and future rulings could significantly affect whether the Postal Service’s proposal ultimately takes effect.

Whatever happens, this is clearly a headache the Postal Service doesn’t need.

— Steve Hutkins (assisted by Gemini AI)

(Featured Image: Nati Harnik/AP)