What’s next in the legal battles over Trump’s attack on mail voting

Trustworthiness lies at the heart of the post office’s unofficial motto that “neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds.”

This week the U.S. Supreme Court upended that promise of faithful — and nonpartisan — delivery when it nullified a lower court’s directive barring the implementation of President Donald Trump’s executive order restricting mail voting. 

The Court’s decision means that, less than 70 days before the midterm elections, no one can say with total certainty whether voters in every state will be able to cast mail ballots as they have done by the millions in elections past. 

Now, a handful of court battles that will decide the fate of mail voting are entering their most decisive stages. No matter the initial outcomes, there will be appeals, and in the end the issue may once again fall into the Supreme Court’s hands. 

Given the conservative majority’s record on voting cases, that could be bad news for access to the ballot. But any ruling for the Trump administration would expand the power of the federal government to dictate the rules for running elections far beyond their current bounds.

How we got here

The executive order (EO) Trump signed in March directed the U.S. Postal Service (USPS) to deliver mail ballots only to voters on pre-approved lists maintained by the federal government using new, specifically designed envelopes with mandatory barcodes. It also ordered the Department of Homeland Security (DHS) and Social Security Administration (SSA) to compile citizenship lists and share them with the states. 

Trump’s electoral edict was immediately met with a flurry of federal lawsuits, all asking the courts to quickly bar its execution.

In each, Department of Justice (DOJ) lawyers defending the order ignored its glaring constitutional defects, instead focusing entirely on procedural points: The order hadn’t been implemented yet, so no one could have been harmed by it yet, and thus the courts couldn’t assess its legality yet. 

After much back and forth in courtrooms in Boston and Washington, D.C., the U.S. Supreme Court eventually agreed with that argument in State of California v. Trump Monday, pausing one of the two injunctions granted by U.S. District Court Judge Indira Talwani. 

Along the way, USPS first proposed and then finalized a rule to implement the executive order, while DHS unveiled its own memorandum doing the same. 

In light of the Supreme Court’s ruling in the California lawsuit, Talwani lifted her other injunction on Wednesday, allowing the USPS rule to go into effect for now.  

Now, with the preliminary procedural skirmishes over and the judicial blockades lifted, the legal battle will turn to the fundamental inquiry at hand: Whether Trump’s order and the steps taken by DHS and USPS to enact it are constitutional. In the meantime, the administration’s work to implement and enforce it for the midterms can continue. 

What’s next

The order’s opponents have already started filing new or supplemental complaints and requests for emergency restraining orders to keep the federal government from interfering with mail ballots ahead of November’s midterm elections. 

On Tuesday, a coalition of Democratic Party groups and candidates led by the Democratic Senatorial Campaign Committee (DSCC) filed a supplemental complaint in their Washington-based lawsuit. And the Democratic states from State of California v. Trump filed a new lawsuit Wednesday morning against USPS — adding Hawaii as another plaintiff — while the group of voting-rights organizations led by the League of Women Voters of Massachusetts (LWVMA) updated their own complaint a few hours later. 

While the alleged impacts will differ across those cases — perhaps even pivotally — the arguments challenging the final rule will broadly overlap. 

The plaintiffs will all explain that the Constitution empowers states and Congress to regulate the “times, places and manner” of federal elections, affording the executive branch no independent authority. 

The DOJ responded in its first merits-focused filing Thursday by downplaying the importance of Trump’s order and the USPS final rule implementing it. The DOJ described the changes as “modest” and mere regulations of the envelopes holding mail ballots, not of the ballots themselves. 

“Under the Rule, States can continue to mail ballots to whomever they wish whenever they wish; the rule does not regulate the form or content of the ballots themselves, the timeline for transmission of ballots, voter eligibility, vote-by-mail eligibility, or anything similar,” the DOJ wrote. “It regulates only how States must design and label the envelopes they send via U.S. mail (should they elect to use the U.S. mail to send ballots).” 

In Thursday’s filing, the DOJ was only asked to defend the USPS final rule from a temporary restraining order, not any of DHS’s actions. 

Still, the brief lays bare the administration’s overarching litigation strategy. The government’s lawyers are essentially asking courts to ignore everything Trump and his lieutenants have said and done outside of the courtroom. Instead, they argue that the executive branch’s steps to implement the order should be assessed in isolation and not as part of a larger pattern of anti-democratic behavior. 

In the DSCC lawsuit, which also challenges DHS’s role in executing Trump’s dictate, the DOJ will probably contend that the president merely asked DHS and SSA to prepare some citizenship lists and share them with the states — and that those sections of an executive order titled “Ensuring Citizenship Verification and Integrity in Federal Elections” don’t actually have anything to do with federal elections. 

The Supreme Court’s conservatives have already endorsed that argument. 

“This internal directive does not regulate the States’ voter registration processes,” they wrote in their opinion Monday. “Nor does it impinge on the States’ authority ‘to create and enforce a legal code’ for elections.”

But the Court did not seem to take into account the concrete steps DHS has taken to carry out Trump’s order. 

An internal DHS memorandum filed in the DSCC lawsuit outlined a “technological mechanism” populated with federal citizenship data that would be available to state election officials via a “digital portal.” The DOJ’s lawyers will probably argue that the states don’t need to do anything with this data — even though Homeland Security Secretary Markwayne Mullin has said that states that don’t participate will be prioritized in future noncitizen voting investigations aimed at holding “election officials accountable.”

“If the election officials, once we gave them the information they need to secure their elections and they chose not to, then those individuals can also be held accountable by fines, by penalties, and even depending on how far it goes, prison time,” Mullin said at a press conference in July.

Mullin said that just a day after Trump claimed, in a primetime White House speech, that DHS had uncovered 250,000 noncitizens on the voter rolls of four states. But the agency has been forced to quietly roll back those claims since then, pointing to mere hundreds of “potential” noncitizens. Along with Mullin’s threats, those faulty figures could bolster arguments that the administration intends to unconstitutionally strongarm state officials into using specious data sources to improperly restrict voters’ access not just to mail ballots, but to voting in general.

Similarly, in its final order, USPS repeatedly claims the agency is merely trying to streamline mail ballot delivery by regulating “preparation standards for Federal Ballot Mail envelopes,” and not in any way interfere with mail voting.

“These requirements do not amount to election administration, nor do they usurp state resources; rather, they regulate the use of the mail to improve operational efficiency and support the faithful execution of federal law,” USPS maintains.

But the final rule later makes clear that “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, if states don’t submit redesigned mail ballot envelopes for USPS pre-approval and hand over the name and address of every voter who might use a mail ballot, then the mail carriers won’t deliver them. That could shut off the ballot-casting method used by nearly 47 million voters in 2024, or roughly 30% of the electorate. 

The impact would likely fall harder on older and more Democratic voters. A Pew Research Center study found that 44% of Democratic candidates’ voters cast ballots by mail or absentee in 2024, compared with 26% of Republican candidates’ voters. Trump, a frequent mail voter himself, has repeatedly blamed mail votes for his 2020 electoral loss. 

Still, DOJ lawyers will likely contend on behalf of USPS that the final rule is constitutionally no different than the other regulations about postage and envelope size that the mail carrier makes all the time. And those same DOJ lawyers will argue that the USPS rule has nothing really to do with DHS’s citizenship lists — which it will likely present as an unrelated tool provided to state officials — or with other DOJ lawyers’ filing 31 lawsuits demanding states’ unredacted voter registration data (none of which have been successful). 

The plaintiffs, in response, are arguing that USPS simply cannot tell states what kind of envelopes they can or cannot use for mail ballots. 

“USPS has no such authority,” LWVMA noted in its supplemental complaint. “The Final Rule both assigns USPS an unprecedented gatekeeping role in the administration of mail voting, intruding on the constitutional authority of the states and Congress to regulate federal elections, and conflicts with statutory limits Congress imposed on USPS’s authority.”

On that point, and most others, independent legal experts have almost uniformly agreed: The executive order and the executive branch actions taken to advance it are unconstitutional. 

“[M]ultiple courts will almost certainly stop USPS from claiming the authority to pick and choose which ballots to deliver,” wrote Justin Levitt, a former DOJ voting rights division attorney and law professor at Loyola Marymount University.  

Time is of the essence

Facing strong arguments against the order’s constitutionality, the order’s defenders are also attempting to attack the plaintiffs’ standing. In order to sue the government, a plaintiff has to show they have actually been harmed by its actions and that courts have the power to do something about it.

While courts might agree that some of the plaintiffs lack standing, they’re unlikely say all of them do. In January, the Supreme Court ruled in Bost v. Illinois State Board of Elections that any federal candidate has standing to challenge the election laws governing their election. 

The previous round of legal fights also provides hints about how the courts might now rule.  

Talwani has twice demonstrated her incredulity toward the federal government’s arguments by issuing injunctions. And even as they rejected earlier entreaties to block the administration, courts in D.C. — including the Supreme Court — have similarly suggested skepticism about the executive order’s ultimate constitutionality. 

Still, the timing of all this litigation will get tricky. Federal law requires election officials to send mail ballots to overseas and military voters 45 days before the election — that’s Sept. 19 this year. Talwani scheduled combined hearings in her two lawsuits for Sept. 3

In the DSCC case, U.S. District Court Judge Carl Nichols, a Trump appointee, adopted the administration’s preferred calendar, scheduling briefing to end Sept. 8 — already four days after North Carolina starts sending out its mail ballots — meaning a hearing (if any) would come even later. The plaintiffs asked for a quicker schedule. 

Those dates create the potential for a mad dash of appellate litigation mid-September that could end with one side or the other asking the Supreme Court to settle the matter with another emergency docket order. 

In her dissent Monday, Justice Ketanji Brown Jackson warned that the administration’s goal with all this litigation was to “foment chaos ahead of the November elections.”

“This suspect scenario appears tailor-made to weaponize this case as a means of destabilizing the nation’s vote-by-mail systems through court-assisted procedural maneuvers,” she wrote. 

If the courts wait until mid-September or later to settle this question, then Jackson’s fears could well be realized.

Adeline Tolle contributed to this report.

*Democratic plaintiffs in this litigation are represented by the Elias Law Group (ELG). ELG Chair Marc Elias is the founder of Democracy Docket.