Trump Is Using USPS Rule to Disenfranchise Mail-In Voters

Donald Trump is using an August USPS rule to disenfranchise mail-in voters weeks before a general election.

The executive order, issued earlier this year, directs the United States Postal Service to tighten its handling of absentee and mail-in ballots. The administration’s stated rationale is election integrity: the argument that mail-in voting creates unacceptable risks of fraud and ballot-destroying errors, and that uniform postal procedures are necessary to prevent them. The USPS has statutory authority under the Postal Reorganization Act, 39 U.S.C. § 401-404, to set mailing procedures, and the executive has Article II authority to direct federal agencies. The rule’s proponents say it will ensure that every ballot is handled consistently, that the system is fair, and that voters can trust the count.

That is the administration’s case. Here is what the record shows.

The rule was published on August 21. State election officials immediately told the administration the changes were impossible to implement that close to a general election. A federal judge issued a 14-day hold. The Supreme Court lifted that initial injunction — not because the rule was lawful, but because the plaintiffs had filed too early, before the rule was formally published. That reasoning became the administration’s argument: the timing objection would evaporate once the rule existed, and then the litigation could proceed.

The plaintiffs in Boston and Washington, D.C., refiled their lawsuits. Judge Carl J. Nichols issued a preliminary injunction, writing that “absent an injunction, there is an increased risk that a significant number of otherwise appropriate absentee or mail-in ballots will ultimately not be counted in the upcoming elections.” That language is a procedural finding about whether ballots can be counted in time — not an ideological judgment about whether the rule is good policy.

The administration asked the Supreme Court to lift the USPS mail-ballot block on September 4. The high court has not acted. Appeals courts are now set to rule on the USPS mail ballot rules for the midterms. The litigation pipeline is accelerating.

The governing right-instrument is the Materiality Provision of the Voting Rights Act, 52 U.S.C. § 10101, which prohibits the rejection of ballots for technical errors that do not affect the voter’s eligibility. If the USPS rule’s new requirements cause ballots to be rejected for reasons unrelated to whether the voter is eligible — for instance, because a signature format changes, or because a postal marking is incomplete, or because a ballot arrives in a slightly different envelope — that is a direct violation of the statute’s command. The rule’s tightening of handling procedures creates exactly the kind of “materiality” gap the Materiality Provision was designed to close.

The Equal Protection Clause of the Fourteenth Amendment also applies: the rule creates differential treatment of mail-in voters versus in-person voters without sufficient justification, imposing additional burdens on the mail-in ballot that the in-person ballot does not carry.

Nichols’s finding that ballots would not be counted is not a ruling on the administration’s merits case — it is a finding that the irreparable harm to voters is sufficient to warrant a preliminary injunction. The administration’s argument — that the rule is necessary for election integrity — is answered by the fact that the rule itself creates the very harm it purports to prevent: ballots that should count, not counting.

The Supreme Court’s position is the regime-level question. The administration asked the court weeks ago to lift the block. The high court has not acted. The question is whether the Supreme Court will let the courts protect the right to vote, or will let the administration override it.

What the administration is doing is the direct use of an executive order to alter the mechanics of voting in the United States, through a federal agency, weeks before an election, at a time when the changes cannot be implemented without rejecting ballots that voters had every right to cast.

The next two months will show whether the courts hold.