Your Right to Vote Has Not Changed
The Supreme Court weighed in last week on President Trump's attempt to thwart the widespread use of mail-in balloting. A district court's order in a suit brought by many States had enjoined his Executive Order of March 31, 2026, that limited the Postal Service's delivery of ballots as exceeding his authority and having the potential to disenfranchise legitimate voters. On August 24, the Supreme Court ruled that the States did not yet have standing to challenge the Executive Order— that they had come to court too early, before suffering any actual injury from a rule that, at the time, didn't yet exist. That is a procedural ruling. It says nothing about whether the underlying policy is legal. The Supreme Court made clear its decision did not mean that any future measure taken by the Government to implement Trump's Executive Order will necessarily be lawful.
The Supreme Court's decision, however, allowed the Trump Administration to proceed toward implementing the March 2026 Executive Order directing the Postal Service to refuse delivery of mailed ballots unless a voter's name appears on a list their State has provided to the Postal Service.
The Supreme Court's ruling did not make any change to the 2026 election process. And that's good, because the midterms are on the verge of beginning, with absentee ballot distribution set to start in early September, and any process changes now are likely to confuse, discourage, and disenfranchise American voters.
That fight is just beginning as recent events show. Now that the Postal Service has actually issued its rule requiring these voter lists, the States have an injury to point to — and they're back in court with a new case filed two days after the Court’s ruling. As expected, the same district court stepped in again on Thursday night finding that because the Postal Service has issued its Final Rule the challenges to it are ripe. That district court found the Rule unconstitutional holding that the power to regulate election administration resides with the States and while the States' decisions may be pre-empted by Congress that has not occurred here to permit the Postal Service to regulate election mail. The district court then granted an emergency fourteen-day stay of the Final Rule as to elections occurring before or on November 3, 2026. It is most certain that the Government will appeal this decision and the case will end up again at the Supreme Court where the merits of the parties' contentions will be addressed.
When it does, the Court should rule:
The Constitution gives the states — not the President, not a federal agency — the power to decide the "Times, Places and Manner" of federal elections, subject only to legislation by Congress. That's not a stray phrase; it's Article One's Elections Clause, and courts have long read it to give states broad authority over how elections are run, including voter registration, mail balloting, and fraud prevention. Congress can change state choices. The President cannot. And Congress has never given the Postal Service a role in deciding who gets to mail a ballot.
That matters because the Postal Service isn't just another executive agency — it's what courts call a "creature of statute," meaning it only has the powers Congress specifically wrote into law. Congress told the Postal Service exactly what mail it may refuse to deliver, and ballots aren't on that list. Congress also required the Postal Service to get input from the independent Postal Regulatory Commission before making any nationwide change to how mail is handled — a step the Postal Service skipped entirely here, rushing a rule into effect weeks before ballots go out.
Put simply: an Executive Order can't create authority Congress withheld, and an agency can't rewrite its own job description days before an election. The States' new complaint lays out seven separate legal theories for why the rule should fall — from separation of powers to the Administrative Procedure Act to the Privacy Act. Any single one, if it succeeds, unwinds the rule. Together, they describe an agency acting far outside its boundaries, on a timeline that seems designed to make undoing the damage as hard as possible.
We believe the Constitution should lead the Supreme Court to affirm the States' authority, not the federal government in the guise of Trump, to run their own elections. Any changes must emanate from Congress not the Executive branch.
The Barbara McDowell Social Justice Center