The Supreme Court’s recent nod to President Donald Trump’s order on mail voting has stirred more uncertainty than actual change, especially when considering the voting approach for nearly a third of Americans. Although this preliminary approval might not alter any election procedure in the upcoming November midterms, it casts doubt over how people will cast their votes this season.
Rather than confirming the legality of Trump’s directive, the Supreme Court indicated it’s premature for states governed by Democrats to contest it. In June, these states convinced a Boston federal judge to pause the order for the November elections. This development essentially reopens the legal debate, with tight deadlines looming as North Carolina prepares to dispatch initial ballots to overseas and military voters by September 4.
Still in play is a second injunction halting the U.S. Postal Service from implementing changes per Trump’s order. However, the administration swiftly responded on Monday by filing a motion to lift this hurdle, proposing Postal Service regulations that, if cleared legally, could start as soon as Tuesday.
Under these proposed rules, specific formats for mail ballot envelopes are mandated, potentially forcing some areas to redesign efforts entirely. Additionally, states must utilize an electronic system to inform the Postal Service about mail voters. Should states fail to comply, they risk their mail ballots not being dispatched.
Critics are taken aback by the potential for such drastic changes on such short notice. Justice Ketanji Brown Jackson, in her dissenting voice, cautioned that this decision only serves to inject confusion and uncertainty into the forthcoming midterm elections.
David Becker, executive director of the Center for Election Innovation & Research, agreed, saying the majority “seemed to create complete chaos leading up to the midterm elections” and it’d be “impossible” for states to comply with the new rules at this late date.
Some ballots for the November election are set to go out within days
Jesse Salinas, the registrar of Yolo County in California and president of that state’s association of election officers, noted that ballots in his state start going out in 11 days and his county already printed its envelopes.
“You look at the timeline, and it’s a bit chaotic,” Salinas said, noting he doesn’t know precisely which envelope designs comply with the new rules.
He dismissed the idea of a last-minute revision in procedures. “The capacity to do that, I just don’t see it,” Salinas said.
Tammy Patrick, chief program officer at the Elections Center, an association of 2,500 election officers, warned that it’s impossible for any state to comply with the rule and that no one she talked to has tried.
“There isn’t a single state that does their elections in a way that this postal rule lays out,” Patrick said in an interview. “There has been this assumption that this is not going to happen because it could not happen the way it’s laid out, because no one does it this way.”
Cisco Aguilar, the Democratic Secretary of State in Nevada, where every registered voter gets a mail ballot, noted the post office had already misdelivered three dozen mail ballots from his state’s June primary.
“They’re going to come in within seven days and build a massive database that has 100% accuracy?” Aguilar said in disbelief. “It is impossible to implement this system in that time frame.”
Trump votes by mail, but has sought to curb it for others
Trump has long sought to make voting by mail largely impossible, though he himself has repeatedly cast his ballots by mail.
Trump falsely blamed his 2020 loss on mail voting and spun up baroque conspiracy theories that he’s tried to prove while back in office. Judges blocked him from creating new voting restrictions by executive order last year, and he only issued his latest order after his bill to revamp voting procedures stalled in the Senate amidst Democratic opposition.
The Election Assistance Commission found that 29% of voters in 2024 cast their ballots through the mail. Democrats are more likely to use mail voting than Republicans, a reflection of how the process has become polarized since Trump began attacking it in 2020. Still, the president has to date been unable to make the sweeping changes he’s sought because the Constitution grants control of voting rules to states, and in federal elections, to Congress — not the president.
Legal experts stressed that’s why they view it as unlikely Trump’s order will actually be implemented. Not only did the majority in the Supreme Court’s unsigned order note that it hasn’t determined whether the measure is constitutional, but every victory the administration has won so far has only been because it’s argued that it’s premature to talk about its constitutionality. Opponents are already weighing new lawsuits since the final rule was published Friday night.
More litigation is expected
Becker, a former Department of Justice lawyer who co-wrote a book debunking Trump’s 2020 election lies, added that he expects the next round of litigation to keep the order from being implemented in November. Rick Hasen, a UCLA law professor, said after the ruling: “This doesn’t necessarily mean anything in terms of November.”
Derek Muller, a Notre Dame law professor, said the Supreme Court still ensured a fraught court battle in the coming days.
“It puts courts in a terrible place, because whatever happens is super close to the election,” Muller said. “If it permits it, it creates super disruption for the states. If it suspends it, it visibly angers the administration.”
Hasen said it’s inconceivable that the regulation will impact voters in November.
“Both legal and practical reasons make this practically impossible to enforce,” he said of Trump’s mail voting order.
Elections are run by local officials in thousands of scattered offices, many of which don’t even have a full-time employee. Patrick said that those who work in the field have been left reeling.
“Election officials just feel like punching bags at this moment because they plan one way of conducting their elections, and have contingency plans if a fire breaks out, or one location loses power,” Patrick said. “But how do you plan for something that affects one-third, one half, or all of your voters?”
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