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The midterms are two months away, and President Donald Trump has already accomplished a long-sought-after goal: sowing chaos in mail voting. His executive order that taps the U.S. Postal Service and Homeland Security to nationalize U.S. elections elicited a contentious legal battle that culminated in the Supreme Court intervening last week. The justices ruled that—for now—the EO could move forward, but they did not consider the merits of the case, leaving the door wide open for updated lawsuits. And, like clockwork, within days updated litigation was filed, and a Massachusetts judge again issued a 14-day restraining order preventing the order from taking effect. This dizzying back-and-forth puts states in a precarious position: upend their mail-ballot process to comply with the new federal guidance or simply hold off to prevent unnecessary changes and confusion?
States and voting rights groups are still engaged in an active legal battle to prevent Trump’s EO from taking effect; for now they have secured two weeks of relief, after which there’s going to be more court action. It is anyone’s guess how this will play out, though U.S. District Court Judge Indira Talwani, who issued the injunctions, said it’s “a likely unconstitutional regulation for which compliance is practically impossible as to the 2026 midterm elections, now little more than two months away.”
Since the inception of the United States of America, states have controlled their elections. The Constitution plainly states that “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof,” and this was further codified by Congress in 1993 with the National Voter Registration Act. The Trump administration is well aware of this, but given the president’s well-documented grievances with mail voting, it is actively choosing to ignore the Constitution and undermine U.S. elections by sowing doubt and confusion, something the president has already achieved. According to a whistleblower report this week, USPS is continuing to develop a chaotic new scheme for deciding whether to send out mail ballots that defaults toward refusing to send large batches of ballots based on finding a single unconfirmed error. This scheme may not yet be in effect, but it leaves many states in a sort of limbo, including some that are meant to send out ballots as soon as this week.
Through DHS and USPS, Trump’s executive order is attempting to implement three new rules for mail voting: New ballot envelopes that include an intelligent mail barcode and an “Official Election Mail” logo are required in order for USPS to process ballots; states can notify USPS of their intent to use these new mail ballots no fewer than 90 days before an election; and, the most contentious part of the order, state election officials must give USPS a list of every resident in their state who will be sent a mail ballot. It’s not explicitly stated, but the assumption here is that states’ voter lists must match a list of American citizens eligible to vote that DHS also compiled, and USPS has the right to refuse to mail any ballots to voters whose names don’t show up on both lists.
If forced to conform to these new rules, all states will face massive costs as they scramble to redo their mail ballots and compile voter lists. They will also need to undertake extensive public-messaging campaigns to inform voters of the new changes. All of this, taken together, will not actually improve election integrity, but it certainly will disenfranchise many legitimate voters. “It’s just taking away from election officials’ ability to run the election they need to run,” Liz Avore, a senior adviser at Voting Rights Lab, a nonpartisan nonprofit that advocates securing and strengthening U.S. elections in all 50 states, told me.
To better understand what states are up against, it’s helpful to break down where things now stand in several key states, grouped by mail-ballot status:
Group 1: States that conduct elections entirely, or almost entirely, by mail
California, Colorado, Hawaiʻi, Nevada, Oregon, Utah, Vermont, Washington state, and the District of Columbia fall under this category. Huge swaths of the resident populations in these states vote by mail, much higher than the national average. In California, our most populous state, nearly 81 percent of eligible voters voted by mail in the 2024 general election. Meanwhile, everyone in Colorado votes by mail. These states in particular rely on USPS to deliver election mail, and they’ll face higher-than-average costs to change their ballot envelopes to conform with the new USPS standards, given their volume of mail ballots.
On the other hand, when it comes to compiling a list of mail voters for USPS, Avore noted that these states are actually better suited than others to share that list. Because so many of their voters already vote by mail, much of the work to distinguish voters who registered to vote by mail from those who did not is already done. “It might be harder for a state like Arizona, for example, that has a lot of voters who vote by mail, but not all of them. They can’t just send over their [complete] voter registration list. They have to submit a subset of voters, but a lot of them.”
Group 2: States that already printed mail ballots
North Carolina, Massachusetts, and Washington state, at the least, have indicated they’ve already begun printing mail ballots. If forced to comply with the president’s EO, they would need to foot the bill for printing all new ballots, and for potentially addressing confusion from voters who are seeing a new mail-ballot design they’ve never seen before. In Avore’s mind, these states are simply not in a position to comply with the new rules. “It’s too late. They printed it out. They can’t print out all new ballot envelopes before the election,” she said.
North Carolina is in an especially tight spot, as it not only already printed mail ballots but began sending them out to voters on Friday. Massachusetts Attorney General Andrea Joy Campbell emphasized this point too, noting that multiple states are scheduled to send mail ballots to their eligible voters, and if the Trump administration prevails in its litigation, “it would be virtually impossible for states to comply with this unlawful rule.” In Washington, Secretary of State Steve Hobbs warned that his counties would have to destroy and replace over 5 million ballot envelopes they have already printed for the November election.
Group 3: States with decentralized elections
Wisconsin, New Hampshire, and Minnesota are among a small group of states with a decentralized election system, in which individual cities and towns, rather than counties, are responsible for administering ballots. This hyperlocal election model results in there being numerous officials who must figure out new rules and regulations, oftentimes with pretty limited funds. These states could face a higher burden of organizing their state’s compliance with new last-minute mail-voting rules and thereby have a higher chance of USPS rejecting their mail ballots.
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“A state like Wisconsin, where elections are done at the municipal level, they have so many different election administrators, and some of these small jurisdictions have one person that’s working in the elections office,” Avore said. “That’s a huge lift for some of these small, dispersed jurisdictions to figure out how to use USPS’s portal and submit names.”
Given Trump’s animus toward mail voting, despite using it himself, his executive order is not surprising. And if it does end up being blocked by the courts, he still managed to etch out a win. That’s because the new set of rules his EO lays out are ripe for violation, as states will inevitably struggle to adhere to new ballot envelope designs and their voter lists are likely to have some discrepancies with DHS’s list. This is all he needs to hook his election fraud claims into, setting off a dizzying array of federal investigations and lawsuits that could successfully convince a cohort of Americans that perhaps our elections should be nationalized—or that potential Democratic gains in the midterms are illegitimate.
It’s vital we do not fall for this, especially when considering that Trump’s broader election agenda has actually failed thus far in his presidency—no states have implemented proof of citizenship for registering to vote, and not a single state has eliminated no-excuse mail voting. “For the amount of rhetoric and noise that there’s been around this, the efforts to change the policies have really flopped,” Avore said. “I think that is a testament to the resilience of our elections.”
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Elsewhere in Jurisprudence
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For this week’s Amicus, Dahlia Lithwick and Mark Joseph Stern revisit a conversation with Susan Matthews, host of Slow Burn’s latest installment, Becoming Justice Gorsuch. They discuss Gorsuch’s key rulings to date, his unpredictability, and how he’s shaped the court—and our country—for decades to come.
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In the Amicus bonus episode, Susan again joins Dahlia and Mark to discuss a blockbuster end to the Supreme Court’s 2025–26 term and Gorsuch’s role. They also focus on Gorsuch’s take that the U.S. is a “creedal nation,” founded not on blood but on ideas.
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The Supreme Court weighed in on Trump’s controversial executive order targeting mail voting and allowed it to proceed—for now. That win lasted approximately three days, until a district judge again issued a restraining order halting the EO from taking effect for 14 days. Robyn Nicole Sanders, a civil rights attorney, explains in Slate how SCOTUS could find itself facing this same case on the merits in a few short weeks.
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The Trump administration was back at the Supreme Court, this time asking the justices to consider the constitutionality of its restrictions on transgender people serving in the military. Robyn again writes for Slate about how this case stems from yet another presidential executive order, which was promptly challenged by a group of transgender service members and prospective recruits.
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Trump’s ballroom can proceed, thanks to the Supreme Court’s conservative supermajority, which ruled that the plaintiff suing the administration did not have standing. As Robyn explains in Slate, the majority sidestepped the question weighing the actual legality of the ballroom’s construction, focusing instead on a technical question of standing.
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