Conservative justices split as Supreme Court blocks President Donald Trump’s mail-in voting restrictions

The U.S. Supreme Court rejected the Donald Trump administration’s request to enforce new U.S. Postal Service restrictions on mail-in ballots before the November midterm elections, leaving in place a nationwide injunction issued by U.S. District Judge Indira Talwani in Massachusetts.

In a brief, unsigned order, the Court said the government is “unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction” and that the equitable factors governing emergency relief did not favor a stay. The justices did not resolve whether the Postal Service rule is ultimately lawful, leaving that broader question for the ongoing litigation.

Justice Brett Kavanaugh concurred in the decision — along with liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, plus conservatives John Roberts, Neil Gorsuch and Amy Coney Barrett — while Justices Samuel Alito and Clarence Thomas dissented. The ruling leaves the injunction blocking the new requirements in place for the election, allowing states to continue using their existing mail-ballot procedures.

Brett Kavanaugh’s concurrence

Kavanaugh wrote separately to explain his vote with the majority. He said there is “at least a fair prospect that the final rule falls within the Postal Service’s statutory authority.”

But Kavanaugh distinguished the rule’s underlying legality from its implementation in the election. He wrote that applying the rule this year would be “arbitrary and capricious” under the Administrative Procedure Act because state and local election officials did not have sufficient time to reasonably implement the requirements before the election.

For that reason, Kavanaugh wrote, he concurred in denying the government’s request to lift the lower court’s injunction.

The dissent

Alito, joined by Thomas, argued that the Supreme Court should have allowed the rule to take effect. Alito said some plaintiffs likely lacked standing and that other plaintiffs were pursuing a legal theory the Court has previously described as a “Hail Mary pass” that “rarely succeeds.”

Alito argued that the Postal Service has broad authority to regulate the mail and that the states’ logistical concerns do not justify denying the government emergency relief.

He also said the government has a strong interest in enforcing the rule because it argued the requirements would make federal ballot mail more visible and help detect election fraud. Alito said the states are partly responsible for the late timing because litigation had delayed the Trump administration’s efforts.

He also questioned whether the Postal Service had actually created a new category of nonmailable matter through the rule.

What the rule would have required

The blocked regulation, titled “Ballot Mail for Federal Elections,” was issued by the Postal Service under an effective date of August 21 and published in the Federal Register on August 26. The rule amended the agency’s Domestic Mail Manual and established new standards for federal ballot mail. 

Under the rule, federal ballot mail would have had to use envelopes bearing an election-mail logo, be compatible with high-speed sorting equipment and carry a specialized barcode unique to each voter. State and local election officials would have had to submit ballot-envelope and return-envelope designs to USPS for approval and enter voter information into a Postal Service portal.

The rule also allowed USPS to reject or return mailings that do not meet the requirements. The district court said the regulation conditioned states’ use of the Postal Service on approval of their envelope designs and the submission and certification of voter information through the USPS portal. 

Where the rule came from

The rule grew out of Executive Order 14399, “Ensuring Citizenship Verification and Integrity in Federal Elections,” which Trump signed on March 31. The order called for additional measures involving mail used in federal elections, including uniform standards for mail-in and absentee ballots, as part of an effort the Trump administration said would strengthen election integrity and reduce the risk of fraud.

The order also directed the attorney general and agency heads to take lawful steps to address noncompliance by state and local election officials and entities involved in ballot printing or distribution. It authorized steps including withholding federal funds from noncompliant states and localities where permitted by law.

A separate section directed the Department of Homeland Security, working with the Social Security Administration, to assemble information on adult citizens in each state.

Following the order, USPS underwent an interagency review with the Office of Management and Budget and issued a proposed rule on June 2. The public comment period closed July 2. USPS said the final rule was intended to implement the executive order while establishing standards for federal ballot mail.