USPS’s New Mail-in Ballot Rule Gets Blocked Again—What To Know Before The Midterms

Key Facts

What to Watch for

Talwani has scheduled a hearing for Sept. 3 in the case over the USPS rule, so she could decide anytime after that whether to continue blocking the rule or allow it to take effect. Democratic attorneys general have also sued over the final USPS rule, but Talwani has combined their case with the one brought by voting rights groups, so there won’t be two separate court decisions over the rule’s fate. It’s possible the dispute over the USPS rule could go back to the Supreme Court a second time, now that the high court’s initial argument for allowing the policy—that the lawsuit against it was brought before the rule could be finalized—is now invalid, since the final rule has been published. The debate over whether the rule will take effect for the midterms will likely have to be decided swiftly, however, given that some states start mailing out ballots as soon as early September.

Crucial Quote

Talwani noted Thursday that the USPS’s filings defending the new rule “lack any evidence regarding fraudulent absentee or mail-in voting,” despite the Trump administration using the specter of fraud to justify the new policy. “In any event, the USPS’s interest in correcting an unsubstantiated problem through likely unconstitutional means is dwarfed by the overwhelming risk of pervasive disenfranchisement of citizens who need access to mail ballots in order to vote,” the judge wrote.

Chief Critic

The Supreme Court’s three liberal justices—Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—dissented against their colleagues’ decision Monday to let the USPS rule take effect. Sotomayor argued she didn’t think it was too early to bring the legal challenge, penning a dissent that Kagan also signed on to, while Jackson argued the court’s ruling “needlessly injects chaos and uncertainty into the upcoming midterm elections” by allowing the rule now before deciding if it’s actually legal. “States administering elections and the voting public that relies on them to do so deserve clarity, not caginess or confusion,” Jackson wrote, criticizing the majority’s “lack of situational awareness” by allowing the rule so close to the midterms. “Taking its eye off the ball, the majority misses the Government’s actual objective: to secure our [approval] for its effort to foment chaos ahead of the November elections.”

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 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, 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: In her order re-blocking the policy, Talwani noted 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 will receive their mail-in ballots late. 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: Even if election officials can implement it on time, there’s still the possibility of delays on USPS’s end as the new portal gets up and running. 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. Given that it’s unclear how long processing information through the new system could take, however, voters may want to request a mail ballot early to make sure there’s enough time to have their information cleared.

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. In a filing to the Supreme Court, election officials also cautioned the new processes around creating barcodes could be particularly difficult in rural communities with fewer resources.

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.

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

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)