‘Uncharted territory’: Votes already cast could be at risk if Trump’s order is revived

Critical infrastructure needed to implement parts of the U.S. Postal Service’s mail voting rule still don’t exist, while the Trump administration aggressively presses for it to be reinstated. Meanwhile, mail voting is underway in several states. 

That has some experts issuing stark warnings that votes already cast could be at risk of being thrown out if the U.S. Supreme Court lifts the injunction currently blocking the rule. 

“We have actual demonstrable effects because of voters who’ve already cast mail ballots and these pressures are now weighing upon SCOTUS,” Michael McDonald, who runs the University of Florida’s Election Lab, told Democracy Docket. “I don’t know to what degree that’s going to affect what they’re doing, but the clock is ticking and it’s past midnight, so we’re into uncharted territory.”

A total of 294 votes through the U.S. Postal Service had already been counted in North Carolina as of around 8 a.m. Wednesday morning, according to a tracker run by McDonald.

The data shows that Democrats have cast twice as many mail ballots as Republicans in the state. While Republicans used to be the party of mail voting while Democrats preferred in-person early voting, there’s been a noticeable post-pandemic shift that experts and pro-voting groups have attributed in part to Trump’s war on mail voting.

Even though the Tar Heel State took steps to voluntarily comply with the USPS rule, it is impossible for any state to fully comply because there’s still no federal portal needed to upload voter names. 

“There are ballots that, if the executive order and the USPS rule were in effect, are in violation of those rules because North Carolina has not uploaded a state participation list according to the USPS rule,” McDonald said.

Alabama’s formal deadline to send out mail ballots is Wednesday, and Wisconsin has also already sent out some 50,000 ballots through the state’s decentralized system. Alabama’s Secretary of State Wes Allen (R) urged voters to send mail ballots to county officials at least two weeks before Nov. 3, in a press release Wednesday morning.

Though it didn’t directly address the issue of ballots already cast, Trump’s own Department of Justice admitted the possibility of disenfranchisement in a weekend filing urging the Supreme Court once again to let the rule move forward.

“Thus, if the injunction is eventually stayed and the rule takes effect for this year’s elections — as should occur — there is a grave risk that States may not have taken the necessary steps to comply, due to the false sense of latitude created by the court’s improper injunction, potentially depriving those State’s citizens of the ability to vote by mail,” Solicitor General John Sauer wrote.

McDonald said if the block is lifted, he sees the court acting in two potential ways, with both sowing chaos. 

The first scenario is the one Sauer presents, where all votes cast — both before and after the rule’s constitutionality is determined — would have to be in compliance. Since states cannot currently comply, all those early votes would be thrown out.

In another scenario, the Court could say the rule only applies to states after a decision lifting the block comes down, and not to states that have already sent out ballots. In addition to logistical problems, this would create a legal issue of equal protection, according to McDonald.

“Even within the same state, you can have voters who are being treated differently than others within the same state,” McDonald said. “And that would likely lead to a lot of litigation.”

McDonald said the inequities this could cause would only mount with time. 

A coalition of blue states and voting rights groups is expected to file its own response with the Supreme Court, arguing against the rule’s implementation, by 4 p.m. Wednesday.