After Supreme Court rebuff, Trump’s anti-mail voting rule enters next fight with eyes on 2028

The U.S. Supreme Court slammed the door on implementing President Donald Trump’s anti-mail voting rule in time for the midterms, but legal fights continue to keep it from taking effect in 2028 and beyond.

The U.S. Postal Service resumes the fight from a weakened position after two federal judges and a majority of the U.S. Supreme Court cast doubt on its legality.

However, Trump showed no signs of backing down from his attacks on mail voting in light of what happened at the Supreme Court. He continued Tuesday to baselessly claim the voting method is “out of control” and “corrupt,” despite his own Justice Department being lambasted by several federal judges for not providing any evidence of widespread fraud.

The battle so far has centered on blocking the rule while legal challenges to its substance play out. Now, arguments on the rule’s merits shift back to a federal district court in Massachusetts where 24 states and voting rights groups are challenging it as a constitutional overreach that usurps states’ power to administer elections. 

It’s also being challenged in a district court in the District of Columbia where Democratic groups* argue the Postal Service does not have the power to issue the mail-voting restrictions.

Judges from both courts have blocked the rule from taking effect, warning the Trump administration at every turn that it is likely to lose the lawsuits.

“Throughout its body of election legislation, Congress has never delegated its Elections Clause power to the USPS. Unauthorized by the Elections Clause, the Final Rule clashes with Congress’s statutory scheme, and is unconstitutional where it intrudes not only on Congress’s Elections Clause powers but also that power left to the States,” Boston-based District Judge Indira Talwani wrote in her preliminary injunction on Sept. 4.

In Washington, D.C., District Judge Carl Nichols (a Trump appointee) blocked the rule on the grounds that the Postal Service likely doesn’t have statutory authority to issue the mail ballot rule. 

The Postal Service’s rule requires states to design envelopes for mail ballots with features such as trackable barcodes, which the Postal Service would need to approve. The rule also requires states to submit lists of voters who are eligible to receive mail ballots.

Nichols said the rule exceeds “any conception of the outer bounds” of the Postal Service’s statutory authority.

“Nothing in the Postal Reorganization Act authorizes the Postal Service to impose new election procedures on state election officials, to create a data collection system for mail-in and absentee voters, or to refuse the transmission of lawful mail because it fails to meet these data collection requirements,” Nichols wrote in his preliminary injunction on Sept. 13. 

The 1st Circuit Court of Appeals agreed on both fronts when it denied the administration’s appeal of Talwani’s injunction last week. 

“Appellants seek to avoid the constitutional problem by denying that the Final Rule regulates the manner of holding elections. The district court charitably concluded that ‘[t]his denial rings hollow.’ The title of the Final Rule is ‘Ballot Mail for Federal Elections,’ and the Final Rule explicitly and exclusively regulates election mail,” the 1st Circuit said.

What happens if it winds up back at the Supreme Court?

The issue is all but certain to make its way back to the Supreme Court after the lower courts determine whether Trump’s order is legal.

At least five justices cast doubt on the administration’s chances of succeeding with the order as currently written.

“The Government is unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction,” the court said in a brief, unsigned order. “And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.”

Trump lashed out at the three justices he nominated to the Supreme Court, calling them “a shell of their original selves” after they ruled against him.

However, some of the court’s conservative bloc indicated a willingness to let Trump’s mail voting restrictions move forward under different circumstances. 

Justice Brett Kavanaugh said he agreed with the majority that it was simply too close to an election to make such major changes. But in a concurring opinion, he left the door open to implementing the rule later. 

“In my view, based on the briefing the Court has received at this interim stage, there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority,” Kavanaugh wrote.

Justices Samuel Alito and Clarence Thomas went further and said they would have allowed Trump’s plan to move forward right now.

Alito wrote in dissent that the Postal Service rule amounted to a mailing requirement similar to others that it might create, not an unprecedented attempt as a federal agency to exert control over elections. He called the challenge to Trump’s plan a “Hail Mary pass” that “is unlikely to be successfully completed here.”

*The Elias Law Group (ELG) represents the plaintiffs in this case. ELG Firm Chair Marc Elias is the founder of Democracy Docket.