Matt Blaze
RE: https://mastodon.social/@heidilifeldman/117209346171417433
Great (as usual) thread by @heidilifeldman on the current status of the various cases challenging the administration's executive order on vote-by-mail.
Note that how / whether the exec order will affect mail voting in the midterms effectively rests entirely on procedural issues at this point. The merits haven't been addressed (or even fully briefed) yet, and won't be before November.
Matt Blaze
Remember that elections in most states are run by county offices - that's where the ballots are printed, sent from, returned to, and processed and counted. These offices range from moderately sizeable (places like NYC and LA) to utterly tiny, skewed toward the latter.
Just the election office IT side of complying with the executive order and integrating their systems with the USPS is a MASSIVE undertaking, something normally done with a year or more of lead time and funding.
Matt Blaze
And there are states (both red and blue) that rely on vote by mail as a primary voting method. Requiring those states to not send out their ballots until the USPS systems are ready is tantamount to telling them they can't hold elections in November, which is a position that even the most rabidly pro-administration court is unlikely to take.
Matt Blaze
Also, in addition to the legal timeline, there is a practical reality to contend with here: there is no USPS system that implements the executive order yet, and nothing for states and county election administrators to integrate (and test) their own systems with even if they wanted to.
And there is simply no time for that to happent before ballots have to start going out for the November midterms, which is very soon (based on both statutory deadlines and practicalities).
Steve's Place
@mattblaze @heidilifeldman Oregon asked voters more than 50 miles from Portland to use drop boxes, not return them by mail, due to other, earlier, USPS rules.
Matt Blaze
Another thing that’s worth remembering here is that the EO (and new USPS rules) apply only to the mailing of BLANK ballot forms FROM election offices TO voters. There are no changes to any rules governing the return of marked ballots by mail. So once a voter has their ballot in hand, the EO ceases to be an issue for them. (But it would be prudent to mail it back to allow plenty of time for delivery before election day, and with correct postage. Or use a local drop box).
@heidilifeldman
Matt Blaze
Another wrinkle: North Carolina is starting to send out mail ballots TODAY, and it appears that the postal service is set to accept them (though that’s not certain). NC isn’t fully compliant with the new USPS rule, and won’t be through the election.
So now there’s the possibility that SOME voters will be able to receive mail-in ballots, but that the USPS will refuse to accept ballots sent later for others, raising an obvious equal protection issue. https://www.nytimes.com/2026/09/04/us/politics/north-carolina-mails-first-ballots-of-fall-as-trump-tries-to-restrict-them.html?unlocked_article_code=1.-lA.RGel.YWUyQqaEJvqu
Matt Blaze
People saying "well counties can just do <something different> for the November election." No. There is no "just do" here at this point. Even a seemingly small change to election procedures, or a shift in the proportion of voters who vote a particular way, is a HUGE deal this close to an election.
Example: "Just tell voters to print their blank ballots at home". Aside from the fact that voter-printed ballots have different processing workflows, how many voters have printers?
Matt Blaze
So there are basically two ways for this to go, and I honestly have no idea which one it will be:
(sane option): Everyone recognizes that this can't happen, and the EO has no effect until the courts have ruled on the merits (after November)
(chaos option): USPS refuses to accept/deliver blank ballots in the coming weeks, despite having no mechanism for states to comply, and we end up in completely uncharted territory.
Matt Blaze
In other words, no matter what the courts rule, the reality is that there is simply no way for this to happen before ballots go out for the November election. @heidilifeldman
Matt Blaze
And all this is setting aside the equally important problem that the database of citizens that these ballots are supposed to be checked against also doesn't exist in any coherent, reliable form.
M.S. Bellows, Jr.
@steter @mattblaze @heidilifeldman There is no way in hell I'm even returning my ballot by mail this year. It is going in a drop box come hell or high water.
Matt Blaze
Judge Nichols' opinion underscores an important point generally about elections: "once the election occurs, there can be no do-over and no redress."
This is at the core of why elections (in both law and technology) are such a hard problem. If you discover after the fact that something went wrong, there's generally little or nothing you can do about it. You have to *prevent* problems and get it right the first time.
Matt Blaze
No mater which of these three options the Court goes with, all this is only about whether the new rules should take effect right away. The full merits of the cases haven't been ruled on (or even been briefed and argued) in any court yet. That will all happen, with an eventual permanent resolution to the case later (and well after the midterms have happened). It will almost certainly end up back in the Supreme Court.
Matt Blaze
The Supreme Court can do one of three things at this point:
* Stay the injunctions, allowing the new rules to take immediate effect for the midterms
* Refuse to stay the injunctions, leaving things as they are until the cases are decided later (after the mideterms)
* Do nothing, which has the same legal effect as refusing to stay the injunctions but leaves everyone hanging, confused, and annoyed.
Matt Blaze
Just to summarize:
* There are now two lower court injunctions halting the new USPS mail-in voting rules from being enforced. By all indications, USPS is respecting them and delivering ballots.
* The Supreme Court has been asked to stay these injunctions. If it does so, the new rules take immediate effect. If it doesn't, the rules won't change for the Midterms and the cases will be decided later.
* The Court operates on its own timetable. No deadline for decisions.
Matt Blaze
There is now a SECOND lower court injunction in effect against the USPS's mail-in ballot rules, granted last night by the DC district court (a Tump-appointed judge, FWIW).
As with the other injunction, the Supreme Court has been asked to stay it, but has not yet acted. (It could act at any time.) If the court refuses to do so, the new rules are effectively dead for the midterm elections. (And the cases will be fully argued and decided later).
Matt Blaze
So the Court's next ruling here (which could come at any time) will effectively decide whether the new rules will apply to *this* election. But whichever way the Court rules now, the lower court (and, surely, eventually the Supreme Court) will later hear the full case and make a final ruling on the legality of the EO and USPS rules. But that won't be for a while.
Matt Blaze
Note that the court is not actually being asked to rule on the full merits of the legality of the executive order and USPS rules. That's a long way away.
Rather, this is "just" a procedural matter, but a critically important one. The lower court issued a preliminary injunction against the USPS enforcing the new rules while the case proceeds. The Supreme Court was asked (by the USPS) to overturn that injunction so the rules can take effect for the midterms.
Matt Blaze
All the filings and responses are in at the Supreme Court for the USPS's request for a stay of the lower court's injunction that prohibits it from enforcing the new postal voting rules. I believe at this point the next step will the court's ruling, which will come when it comes.
For those following at home, the SCOTUS docket (with all the filings) is here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/26a305.html
(Most of the docket entries are amicus briefs from outside parties.)
Matt Blaze
To get a sense of how much variety there is in how elections are done across different US states, NC has already printed and sent out ballots for the November general election, while NH is just holding its primaries today.
Matt Blaze
Update: it looks like NC ballots are starting to be delivered, which is good news all around.
Matt Blaze
The first batches of mail-in ballots from North Carolina were apparently accepted by the USPS on Friday (sent only to voters who had requested them), despite Trump's contested executive order and new USPS regulations.
Is anyone here a mail-in voter from NC? Have you received your ballot yet? They should start arriving this week.
Matt Blaze
One thing about the USPS's apparent acceptance of NC's first batch of ballots: this creates a new fact in the case that's probably going to be helpful to the plaintiffs (for this election). The USPS has now accepted "non compliant" ballot mailings for some voters. (And compliance is effectively impossible at this point).
If the USPS later starts refusing ballots, SOME voters will have been allowed to receive mail ballots, while others will have been denied them.
Matt Blaze
NC votes chiefly in person at local precincts; mail ballots are sent only to the fairly small fraction of NC voters who specifically request them. Friday's batches were for voters who had already asked for them, though the final deadline for doing so isn't until next month.
Matt Blaze
North Carolina apparently sent out its first batch of ballots yesterday, despite not being fully compliant with Trump's EO and the new postal regulations. So far I've heard no reports of the USPS refusing to accept them (but it's possible that news hasn't reached here yet).
Assuming they accepted them, that's a significant development. It suggests that the postal service is following the prelim injunction.
Hopefully voters get their ballots delivered uneventfully.
Matt Blaze
A note on ballot drop boxes: this may or may not be obvious, but drop boxes are for LOCAL voters (those with ballots from the county/jurisdiction where the box is located), not for absentee voters traveling elsewhere. If you’re away from home, you need to return your ballot by mail, not in a drop box serving a different jurisdiction.
If you put your ballot in a “foreign” box, they might or might not be able to get it to your home county. But at best it will be delayed.
Matt Blaze
Anyway, if you take a security course with me (about elections or otherwise), that point about detection not being the same as prevention comes back again and again.
Matt Blaze
Notably (and unfortunately), security technology (as used in elections and everywhere else) is generally much better at detecting problems than it is at preventing them.
Cryptographic authenticators can show whether data has been altered, but doesn't prevent alteration. Physical seals can reveal that something was tampered with, but don't prevent the tampering. Prevention requires much more complex protocols and procedures, and generally provides only fragile assurances.
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