Mail Ballot Fight Heads Back to Supreme Court With Midterm Ballots Set to Go Out in Weeks

Since the First Circuit Court of Appeals unanimously refused Thursday to lift the injunction blocking President Trump's mail ballot rule, the case has moved to a second front. The Supreme Court is now weighing whether to freeze that injunction directly.

The Supreme Court already ruled once this week. On Monday, the justices gave the administration what NPR called an "interim win," pausing a separate June ruling by U.S. District Judge Indira Talwani that had let 23 mostly Democratic-led states challenge Trump's March 31 executive order. That order, titled "Ensuring Citizenship Verification and Integrity in Federal Elections," directed the Postal Service to build state-by-state lists of mail voters and reject ballots that don't match them.

The Supreme Court's Monday order was narrow. It said nothing about whether the underlying rule is legal, only that the states may have challenged it too early. The unsigned order read: "On that score, time will tell." Justice Ketanji Brown Jackson dissented, joined by the court's other liberal justices, writing that the ruling "needlessly injects chaos and uncertainty into the upcoming midterm elections."

Now a second, more consequential question sits with the justices. According to the American Civil Liberties Union, the administration has separately asked the Supreme Court to stay the broader injunction that blocks the Postal Service's finalized rule itself, a rule the government issued under the title "Ballot Mail for Federal Elections" in late August. The ACLU says a ruling on that request "is expected soon."

That finalized rule requires states to redesign mail ballot envelopes with scannable barcodes, submit lists of mail voters to a federal portal, and gives USPS the authority to withhold delivery of ballots that don't comply or don't match the list, according to Al Jazeera. States would keep authority over who is eligible to vote by mail. The Postal Service's role is limited to the design and matching requirements.

The Department of Justice argued to the First Circuit that the lawsuit rests on a false premise: that the Postal Service intends to seize control of elections. Al Jazeera reported DOJ's position that state officials retain full authority over mail voter eligibility and that the new requirements are "modest." That is the strongest version of the government's case, and the First Circuit did not dispute that states keep formal control over eligibility. Its objection was narrower and more practical: whether states can physically comply in time.

The First Circuit's three-judge panel, all appointed by President Biden, found otherwise. In a nine-page opinion, Judges Gustavo Gelpí, Julie Rikelman and Seth Aframe wrote that the rule would likely make it "impossible for some States to reprint compliant envelopes" and create a "herculean task" of matching tens of millions of ballots against a portal that isn't yet operational. The panel also wrote there is "no record evidence of past fraud or a likelihood of impending fraud related to the November 3 election," and that the rule would risk disenfranchising millions of voters "while providing minimal — if any — gains in combating voter fraud."

On the underlying legal question, the panel agreed with Judge Talwani's Sept. 4 ruling that the Elections Clause assigns control over the manner of federal elections to states and Congress, not to an executive agency acting alone. The judges rejected the government's argument that general postal statutes gave USPS authority to regulate ballots, calling it a "wafer-thin reed," language borrowed from the Supreme Court's 2023 student-loan ruling in Biden v. Nebraska.

Plaintiffs in the case, led by the League of Women Voters of Massachusetts and represented by the ACLU, the Brennan Center for Justice, the Legal Defense Fund, Advancing Justice-AAJC and LatinoJustice PRLDEF, said the ruling "preserves the current system, which has worked safely, securely, and reliably for decades."

A dozen Republican-led states have filed their own appeal of Talwani's ruling, a separate track that remains pending.

The practical clock is now the story. Ballots for overseas and military voters under federal law typically must go out roughly 45 days before a federal election, putting that deadline in mid-to-late September for the Nov. 3 midterms. Whatever the Supreme Court decides on the pending stay request will land in the middle of that window, determining whether states print and mail ballots under the rules that have governed elections for decades or under a system federal courts have twice called likely unconstitutional.