Trump has ordered the United States Postal Service to obstruct the delivery of postal ballots in the upcoming midterm elections. With a variety of bureaucratic pretexts, USPS has obliged. So far, despite an unhelpful but ultimately irrelevant procedural intervention from the Supreme Court, the scheme remains blocked by court order, and by the simple reality that neither the states nor USPS have time to implement it at this late date.
Panic is not necessary, as I’ve previously argued. Trump’s scheme is almost assuredly not going to work. But things are getting more serious. And to shrug off the damage the attempt could inflict would be a dangerous error. An incumbent president is seriously trying to interfere with the casting and counting of votes in an election that will decide whether his party keeps Congress. That he is unlikely to succeed does not change what this is: a shocking, criminal assault on the electoral process. He is, in effect, once again trying to steal an election, and this time with years rather than weeks remaining in his own term.
Why the Scheme Will Fail
The executive order, signed March 31, does two things.
First, it directs Homeland Security, working with the Social Security Administration, to compile a “citizenship list” for every state out of federal immigration, naturalization, and Social Security records, and to send it to each state’s chief election official 60 days before every federal election. The list has no legal force of its own, but it comes paired with a directive that the attorney general prioritize prosecuting election officials who issue ballots to anyone “not eligible,” along with the printers and shippers who help them. They are trying to send a message to every county clerk, but the courts will only be able to step in if the administration actually prosecutes anyone.
Second, the order commands the Postal Service to rewrite the rules for postal ballots. Every outbound ballot would have to travel in a USPS-approved envelope carrying a unique barcode. Each state would have to tell USPS, 90 days before an election, whether it intended to use mail ballots at all (every state does, and for some categories is required to do so by federal law). And if so, whether it would hand over, 60 days in advance, a list of every voter to whom it planned to send one. Then the operative clause: USPS “shall not transmit” a mail ballot from any voter not enrolled on such a list. The list is nominally voluntary. But a state that declines to submit one has no enrolled voters, and therefore no ballots the Postal Service will carry back to be counted. The impossible choice offered to the states is to give the federal government their voter files or watch their citizens’ ballots go undelivered.
Given that the midterm election is Nov. 3, the first ballots will be mailed in a matter of days. Federal law requires states to begin mailing ballots to military and overseas voters 45 days before the election, in mid-September, and some states start mailing to everyone sooner than that. Even if this scheme were more reasonable and legal (and it is neither), there is not even remotely enough time for states to overhaul their systems, redesign ballot envelopes, train their employees, and do everything else USPS is now demanding. It’s unlikely USPS itself has managed to build and implement the system at such breakneck speed.
Election bureaucracy is not a nimble enterprise. These things take months and often years to build out, and USPS is demanding it in just a few days.
Whack-a-Mole Disenfranchisement
The litigation has not gone well for the administration, a procedural reprieve from the Supreme Court on Aug. 24 notwithstanding. Twenty-three states and the District of Columbia sued when Trump originally issued his executive order, and on June 25 Judge Indira Talwani in Boston held the order’s provisions unconstitutional, blocking them for the November election. The First Circuit upheld her ruling in late July, finding the order directed “unprecedented levels” of federal involvement in how states run elections.
Separately, on Aug. 11, Talwani, in a case brought by voting rights groups, stopped or enjoined the order’s core provisions that directed USPS not to carry ballots from voters missing from a state-submitted list. She also barred the agency from finalizing its rule to implement the rules pertaining to this provision. USPS finalized the rule anyway 10 days later, in direct violation of her injunction, she found.
What the Supreme Court did on Aug. 24 was narrower than has been widely characterized, it is still unhelpful. Six justices stayed the June injunction by Judge Talwani as premature. There was nothing to sue over as no “final rule” had been issued at the time of the filing, the majority reasoned. The executive order had only directed agencies to act and the states were required to do nothing until they did. The unsigned order said nothing about the merits of the executive order. However, it did suggest that its implementation might be unlawful. Justice Ketanji Brown Jackson, in a 23-page dissent, objected that the majority had produced a “Catch-Me-If-You-Can” regime in which election challenges are premature until they are too late. She was right.
The Supreme Court’s intervention was made pointless almost immediately, because the final rule the majority said the states had to wait for had already been issued three days before the justices ruled. Talwani first vacated her own Aug. 11 injunction, since the same ripeness reasoning applied to the voting rights groups’ case. However, on Aug. 27, she blocked the final rule itself with a 14-day temporary restraining order. On Aug. 31, refusing to lift that order, she also rejected the administration’s argument that the Supreme Court’s ruling meant any challenge was now too late, calling that a “cynical interpretation” that the justices had not endorsed.
The administration has appealed to the First Circuit, which has already shown its hand, and Talwani heard argument on Sept. 3 on a longer-lasting injunction. (In the federal system, temporary restraining orders last for up to two weeks, preceding a possible preliminary injunction, which can last until the case is decided.) The ripeness objection, that the states sued too early, is gone, and now the case can be considered on its merits—which are not close.
Executive Ordering Illegality
Trump’s order originally directed USPS to check every mail ballot against a government eligibility list before being delivered to the voter, and withhold ballots from anyone not on it. This “verify and withhold” provision is the most aggressive piece of the order. But it is also not in the final rule the Postal Service actually issued. Moreover, ahead of the Aug. 24 ruling, the Department of Justice told the court that USPS “will not perform any verification of voter eligibility or the like.” It also won’t refuse ballots returned by voters missing from a state’s list. USPS’s rule echoes that and claims that the agency will play no part in determining eligibility either of who will receive the ballot.
But disclaiming eligibility checks doesn’t mean no checks at all—the obstacle has simply moved to the other end of the process. Under the final rule, USPS will carry a state’s outbound ballots only after the state gets its envelope design approved, enrolls voters in a new “federal ballot mail portal,” and delivers each ballot batch to a post office, where an election official uploads a manifest—list of packed contents—so that it can be checked against the portal. A sample of barcodes will get scanned to verify the physical ballots match the manifest and portal data. USPS would also hand those voter lists and barcode data to federal law enforcement.
State election administrators already verify voter rolls on both the front end (who they send ballots to) and the back end (verifying a ballot is to be counted when it is received). Introducing an additional, and completely unnecessary, federal step adds nothing to that verification. It only adds a new place for ballots to be rejected, which is the point of this sleight of hand.
But it gets worse. A whistleblower disclosure to Sen. Richard Blumenthal’s office, made public Sept. 1, reports that the agency has internally adopted a “zero percent failure rate” policy: if a single ballot in a batch fails to match the portal—a barcode that will not scan, a voter who recently married or moved—the entire batch is thrown out, returned to the state to start over. In other words, one mismatch in a mailing of 10,000 ballots would mean 9,999 ballots get sent back without being delivered to voters to cast. The portal itself, the whistleblower says, is untested, was built in a rush, is still not operating, and was kept in development in defiance of court orders.
This is a blatant attempt at mass disenfranchisement by bureaucratic obfuscation.
If one bad barcode can effectively toss out an entire batch of ballots, there’s a theoretical possibility that Trump could use this scheme to target key swing districts and tip control of Congress toward his party. But nothing we’ve seen so far suggests the administration could secure for itself the secrecy needed to pull that off. When USPS kept building its verification portal in defiance of a court order, as the whistleblower alleges, it was able to hide that work until the whistleblower spoke up. Tossing out ballots weeks before a national election is a completely different story. It would do great damage to whichever state had its ballots hit, and it would happen in front of courts that have already ruled against this administration numerous times.
So the possibility that the administration would actually succeed in throwing out ballots and depress voting is remote, though not zero. It is hard to quietly steal an election through a channel this exposed. As for the portal itself, Talwani’s Aug. 31 restraining order does not stop USPS from building it, or states from volunteering to use it. What it stops is USPS making any of that a condition of carrying ballots, and that holds unless the First Circuit or the Supreme Court lifts it.
The Post Office Is Not a Gatekeeper
Trump’s order and USPS’s implementation of it have no basis in the Constitution, in federal statute, or in two centuries of postal practice. The Elections Clause gives the regulation of congressional elections to state legislatures, subject to override only by Congress. The president has no role at all. Nor does USPS, which Congress made an independent establishment in 1970 precisely to keep it out of presidential hands, have any authority of its own to condition delivery of ballots on anything.
Federal law does not treat mail delivery as a courtesy. Obstructing the mail is a crime for anyone, and for a postal employee it is a felony to destroy, detain, or delay mail entrusted to him. This is the statute used, for example, against carriers who dump mail rather than do their job of delivering it. Alongside it sit duties of universal service and nondiscrimination among users of the mail. Mail lawfully goes undelivered only when Congress itself has declared a category nonmailable, and Congress has never said any such thing about ballots. Its only legislation on the subject runs the other way, requiring states since 1986 to mail absentee ballots to service members and citizens overseas.
Americans have voted by mail since Union soldiers voted from the field in 1864. The history of the postman as censor is ugly, and Congress has firmly rebuked it. In 1835, a Charleston mob seized abolitionist pamphlets and burned them. Andrew Jackson’s postmaster general, Amos Kendall, let Southern postmasters refuse to deliver such mail, writing that they owed a higher obligation to their communities than to the law. But when Jackson asked Congress that December to ban these “incendiary” publications from the mail, and John C. Calhoun produced a bill to do it, the Senate voted it down. The postal act that passed the following summer went the other direction, making it a crime for a postmaster to detain deliverable mail. This is the ancestor of the felony still on the books.
The mail is a common carrier, not a chokepoint. A postal employee who tossed a tray of ballots in a dumpster would be prosecuted, and rightly so. The order directs USPS to do the same to millions of ballots at once. This is a criminal conspiracy as presidential policy, not just metaphorically but literally. Conspiring to keep eligible citizens’ ballots from being delivered and counted is what the Reconstruction Congress criminalized in the Enforcement Act of 1870, as a conspiracy against the free exercise of the right to vote. Issuing it on White House letterhead does not launder it. Trump’s Justice Department will bring no such case, but the five-year statute of limitations outlasts this administration.
Why Vigilance Is Necessary
But just because the scheme is illegal, unconstitutional, incompetent, and unlikely to succeed in disenfranchising voters does not mean it won’t do damage. Judging it by its competence rather than its character undersells it.
Writing in the New York Times, Jamelle Bouie traces the play: lose in the lower courts, stall, then declare the results in noncompliant states fraudulent, so a new Democratic majority takes office under a manufactured cloud. On that reading, the chaos and collapse are not the plan’s failings, they are the real purpose of it. Nor is it an isolated action. On Aug. 31, DHS opened a parallel “voter fraud surge,” sending immigration agents into nine states, several of them battlegrounds, through mid-October.
In 2020, Trump tried to overturn an election after the votes were cast—pressuring officials, recruiting fake electors, summoning a mob against the certification—because the presidency had no lever over the ballots themselves. There’s still a live chance he’ll try something similar to prevent the new Congress from being seated on Jan. 3. He would claim that given all the invalid ballots that were counted, the election outcome itself is invalid and therefore should not be certified and the new members of Congress not seated. That would ultimately fail too, even if a lame-duck Speaker Mike Johnson goes along with it, as I explained. But anything that adds disorder and confusion helps such an attempt, and that is what the mail scheme is for.
The courts will probably hold, and that is a comfort of a sort. Trump cannot count on the Supreme Court to go as far as he wants. The same order that stayed Talwani’s initial order took care to say it was not blessing whatever implementation might follow. The court’s own rule against changing election procedures on the eve of voting cuts against changing them. In general, while the court will go very far, it has not blessed anything so insane and chaotic, and on its own terms is unlikely to do so.
But having a president so willing and ready to subvert the law, Constitution, and citizens’ rights is still an extraordinarily serious matter. Even if the institutions hold for now, Trump’s actions could well sow the seeds for another crisis, especially since he has already pardoned the last insurrection’s violent offenders and the Supreme Court has told him he is immune for his own official acts.
This attempt to destroy electoral democracy must carry serious consequences, or the next attempt will not be so inept. The main remaining remedy is congressional action, and the next Congress will imperil the country if it shies away from it. Subpoenas and hearings for the postal officials who carried this out, a statute declaring ballots mailable and forbidding any condition on their delivery, are the obvious places to start.
© The UnPopulist, 2026
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Good piece. Thank goodness for the courts (so far).
Terrific post. One of Trump's strategies has always been: create chaos then use that as a cover for action or as a means to seek legal interference to clear up the confusion (now, via judges he & Leonard Leo have put in place - assist by Mitch McConnell).
From Craig's article: "It’s unlikely USPS itself has managed to build and implement the system at such breakneck speed." Ask yourself, what does USPS ever do at breakneck speed? Have you (like everyone I've asked) noticed mail delivery becoming worse over the past years? ...slower delivery; more items lost or delayed for many days/weeks; more mail delivered to your house rather than to the correct address (or a neighbor finding your mail in their box)...? Now, add these numerous & time-demanding tasks of Trump's executive order to postal staff duties, with no addition to staff, likely little time to train & implement new practices.
Almost makes one miss Louis DeJoy... not!