USPS Mail-In Voting Rule Blocked In Court Again—How Dispute Could Impact Your Midterms Ballot

Key Facts

What to Watch for

Talwani’s order means the USPS rule is blocked indefinitely while litigation continues. The ruling is expected to be appealed and will likely go to the Supreme Court. The Trump administration already asked the Supreme Court to lift a previous order of Talwani’s temporarily blocking the USPS rule for 14 days. While it remains unclear how they’ll respond now that the more lasting order is in place, the court has so far given little indication it will rule as quickly as the Trump administration wants. Justice Ketanji Brown Jackson asked the parties opposing the rule to respond by Tuesday morning to the Trump administration’s Thursday request, meaning a ruling wouldn’t come until after that point.

What Does The New Rule Say?

The rule requires states to submit lists of their voters requesting mail-in ballots to USPS ahead of an election, and imposes new policies to ensure only those voters whose information has been sent to USPS can receive ballots through the mail. It also mandates the creation of new envelope designs and barcodes, which will make clear that ballots have been cleared through the federal system. It does not have any impact on which voters are eligible to vote by mail, which will still be determined by states. The USPS has said it will only process the information it receives from election officials, and will not take any steps itself to verify whether the voters submitted are eligible to vote. The rule requires election officials to provide the federal government with a voter’s name, address, state and the barcodes that will be associated with their ballot. That information will be retained by the federal government, which will eventually send a list to state election officials of every single voter name and address USPS received in that state. If postal workers find any ballots that haven’t complied with the federal requirements, they will be mailed back to election officials and will not be delivered.

What Happens To Ballots That Have Already Been Sent Out?

Mail-in ballots that are sent out to voters while court orders block the rule will be able to be sent out normally, without having to be cleared through the federal database. The Trump administration told the Supreme Court on Thursday that even if a future court ruling puts the order back in effect, it would “come too late” to impact ballots that have already been sent out, noting, “Once those ballot envelopes enter the mailstream, there is no retrieving them.” North Carolina began sending out mail-in ballots Friday despite the ongoing litigation.

What Happens If The Rule Takes Effect As Ballots Are Being Mailed?

If the rule takes effect while ballots are already being sent out and states aren’t prepared to comply with the rule, there’s much more of a possibility of chaos. While states can legally start voluntarily taking steps to comply with the rule while it’s still blocked—like by registering for the new database or getting envelope designs approved—the Trump administration told Talwani Thursday that no states have actually yet opted into the system, the AP reports. The federal government warned the Supreme Court that if the rule takes effect, states may not be prepared to comply with the new federal system, meaning voters’ ballots could be delayed or not arrive at all.

What Did The Whistleblower Say?

In their report to Blumenthal, the whistleblower’s attorneys alleged the rollout of the new rule has been a “secretive, rushed, chaotic, and fundamentally flawed process” and the “opportunity for error … is high,” warning of a potential “catastrophic failure which could derail the midterm elections.” The whistleblower’s concern was primarily based on a new system in which ballots are given special barcodes that prove to USPS workers the ballot was cleared through the federal database. However, USPS is allegedly adopting a “zero percent fail rate” policy that means if even one barcode in a batch of mail-in ballots doesn’t scan properly, the entire batch of ballots would be invalidated and sent back to election officials—delaying them from being sent out to voters or keeping them from being delivered at all. “Even under ordinary circumstances” the “zero-percent failure rate” policy “would be problematic because of predictable errors in any barcode scanning process,” the whistleblower’s attorneys wrote, adding the whistleblower “is particularly concerned that the Portal (where the bar codes are stored) will almost certainly have significant operating problems … due to the rushed IT development.” The whistleblower also alleged work on the new IT system had been carried out while the rule was blocked in court, potentially violating the court order. In a statement responding to the whistleblower report, USPS said the agency is “carefully reviewing” the whistleblower’s concerns, and argued its work developing a new portal “has at all times been conducted in a manner consistent with court orders.”

What Do Voters Have To Know?

Voters will not have to do anything differently if the new USPS rule takes effect: ballots will still be requested and sent out by state and local election officials as they have been in the past, and the final rule specifies that states will still govern which voters in the state are eligible to vote by mail. The new system of registering voter information with USPS has the potential to cause administrative issues and delays—as the whistleblower flagged—however, so voters should be aware of the rule if it takes effect. (USPS has argued the rule “does not—nor is it intended to—facilitate any form of voter suppression, affect election outcomes, or target particular demographics, districts, or states.”)

Mail ballots could get delayed: Voters’ ballots could be delayed if the rule takes effect, given both the last-minute nature of any order and the whistleblower’s warning that some batches of ballots could be rejected and mailed back to election officials. Beyond the potential IT issues, Talwani also noted in her order re-blocking the policy that election officials will not have much time to implement the new policy if it’s allowed to take effect for the midterms. States “have neither time nor funds to design new mail ballots, seek approval of the new designs, order production of mail ballots, update their own election management systems, train election officials to use the USPS portal, and upload citizen data to the portal, all before the midterms,” the judge wrote. That means if the rule takes effect, there’s a good chance voters could also receive their mail-in ballots late just due to delays by election officials in implementing the new system. In a filing to the Supreme Court, election officials cautioned the new processes around creating barcodes could be particularly difficult in rural communities with fewer resources, so those areas could face particular delays.

Register for mail ballots early: These possibilities for delays mean voters should request a mail-in ballot as early as possible. The USPS rule requires election officials to submit voters’ information to the federal government’s new portal by at least 30 days before Election Day, or by the date that mail-in ballots start to be sent out. That doesn’t mean all voters’ information has to be supplied by that date, as election officials can keep submitting voters to the federal system until the last day mail-in ballots can be sent out. But while voters technically can register at the last minute, doing so could increase the likelihood of not receiving a ballot on time, if there’s an issue with the barcodes or other delays in processing the federal approval. For voters in states that send out ballots earlier, requesting a mail ballot early means it could also potentially be sent out while the rule remains blocked, meaning it wouldn’t be impacted by the new system at all.

Some groups are more at risk: In court filings opposing the USPS rule, voting rights advocates have argued groups that are particularly reliant on mail-in ballots, like senior citizens and the disabled, could be at enhanced risk of disenfranchisement under the new system, given the potential for administrative issues. USPS and the Trump administration have said postal officials will not take any steps to verify voters’ eligibility, but some voting rights advocates have also expressed fears that people who may not be properly registered in government databases as being citizens—such as people who were only recently granted citizenship—could also face issues.

Exemptions: The ballot reporting requirements do not apply to U.S. military and overseas voters who mail in ballots from outside the U.S., and also only apply to general elections, not primary elections.

What We Don’t Know

If any states will decline to participate in the new system, should it take effect. While no states or localities have yet suggested they’ll do so, that would mean voters in those areas would not be able to submit any ballots through the USPS, and would instead have to rely on other voting methods, like in-person voting and ballot drop boxes.

Why Have There Been So Many Conflicting Rulings In This Case?

There’s been a lot of back-and-forth in court over the new USPS rule, as the rule was first blocked in court, then allowed to take effect, then blocked again—at least for now. While lower court judges initially blocked the USPS policy, issuing rulings in June and August, the Supreme Court ruled 6-3 last week the rule should be allowed to take effect. Justices decided the lawsuit was brought too early, when USPS had only proposed the rule and hadn’t yet finalized it. The court’s liberal justices opposed the ruling, with Justice Ketanji Brown Jackson writing the court’s majority “misses the Government’s actual objective: to secure our [approval] for its effort to foment chaos ahead of the November elections.” The rule formally took effect a day after the Supreme Court’s order, when Talwani followed the high court and lifted her separate order blocking it. The fact USPS finalized the rule on Aug. 21 changed the case, however, because the Supreme Court’s argument—that the legal challenges were improperly brought before the rule was finalized—no longer applied. As a result, the Democratic attorneys general and voting rights groups that initially sued updated their complaints to challenge the final rule. Talwani issued a new order temporarily blocking the policy as a result, ruling USPS’s arguments in favor of imposing the policy were “dwarfed by the overwhelming risk of pervasive disenfranchisement of citizens who need access to mail ballots in order to vote.” Talwani said in her ruling Friday “the record includes no evidence relating to fraudulent mail voting to support the rushed implementation of the Final Rule.”

Key Background

Trump’s executive order directing the USPS to restrict mailing ballots comes as the president has long attacked mail-in voting, falsely claiming it’s more susceptible to fraud—despite regularly voting by mail himself. The controversy over the USPS rule also comes after the Postal Service became a source of controversy in the 2020 election, as former Postmaster General Louis DeJoy implemented widely criticized changes that resulted in mail delays. That sparked accusations that DeJoy, a Trump ally, was intentionally trying to stymie mail-in voting, which he and the USPS strongly denied. DeJoy’s changes were eventually reversed in response to court challenges, and USPS took additional “extraordinary measures” ahead of the election to ensure ballots would arrive on time. DeJoy has since been replaced as postmaster general by David Steiner, a former FedEx board member who was reportedly installed at Trump’s urging. Steiner has said he will follow Trump’s directives on mail-in voting, but would defer to the courts regarding legal challenges.

Further Reading

USPS Whistleblower Warns New Rule Could Keep Voters From Getting Ballots—What To Know (Forbes)

Controversial New USPS Mail-In Ballot Rule Can Take Effect—For Now—Judge Rules (Forbes)

Late Mail-In Ballots Can Be Counted After Election Day, Supreme Court Rules (Forbes)

Postal Service Publishes Finalized Plan to Restrict Mail Ballots (New York Times)