What You Need to Know About the Proposed USPS Mail Ballot Rule

The U.S. Postal Service (USPS) could be charged with determining who receives a mail ballot this November under a sweeping proposed rule that threatens to delay or block millions of mail ballots across the country. Issued in response to President Donald Trump’s March 31 executive order, the rule is a clear example of federal overreach. It oversteps states’ constitutional authority to administer their own elections. 

The rule is currently blocked in all 50 states due to litigation in Massachusetts and Washington, D.C. However, it’s important to understand the threat it poses — for both voters and election administrators alike. 

An Unprecedented Federal Process  

State and local election officials would have to navigate a new federal process before sending mail ballots to voters. Specifically, the rule would create the following mandates:

• Require election officials to submit lists of approved mail voters to a Federal Ballot Mail Portal (along with unique barcodes). This portal does not yet exist.
• Require election officials and mail vendors to print these unique barcodes on all outbound and return ballot envelopes.
• Require the Postal Service to refuse to deliver ballots to voters unless the envelopes include barcodes submitted to the portal. This federal agency has no expertise in elections.

Ballots from military and overseas voters are exempt from this proposal, but it would apply to the vast majority of mail voters across the country. The rule would not apply to primary elections.

A Timeline Designed for Chaos

The highly compressed timeline is a recipe for election chaos and confusion. Because states begin mailing ballots to voters in mid-September, the Postal Service will have only two to three months to build, test, and secure a new database. This database will store the personal data of the tens of millions of Americans who vote by mail.

Because U.S. elections are highly decentralized, the burden will fall on county and municipal officials. These overworked, resource-strapped local clerks would be forced to navigate untested technology, secure new printing vendors, and redesign envelopes during their busiest season. In Massachusetts alone, officials have already spent over $3 million on ballot envelopes that would be unusable under the new rule. Small jurisdictions in particular — which are often short-staffed and underfunded — will be left scrambling to find new vendors in time. 

Voters will also pay the price. For example, a technical issue with the portal or a barcode-printing issue could result in the Postal Service rejecting entire batches of outgoing ballots. This could disenfranchise residents through no fault of their own. In the event of a natural disaster, officials could find themselves unable to access the portal to make updates, just as last-minute ballot requests surge.

A Flawed Basis for Investigations

The Postal Service notes that one potential use case for this tracking data is comparing the numbers of outgoing and returned ballots to detect anomalies. This ignores the realities of how Americans actually vote and how states manage voter data. It assumes every ballot is mailed out to a voter and then returned by mail, ignoring the millions of voters who use ballot drop boxes or hand-deliver their ballots to polling places or election offices. In many states, in-person early voting is available by allowing voters to pick up a mail ballot at an elections office to fill out and return on the spot. These ballots either are not returned via the mail system or are never mailed at all.

This system will only create confusion and fuel conspiracy theories. It raises questions around how states conduct elections, as they always have under state law. 

What Happens Next?

The fate of this rule remains up in the air, held up by ongoing court battles and regulatory processes. 

Rulemaking

The Postal Service is currently reviewing public comments. Once that review is complete, and if they decide to proceed, they must submit the proposed rule to the Postal Regulatory Commission for a 90-day advisory review. This creates an extremely tight timeline. By the end of the review period, election officials will have already sent out ballots in many states and will be preparing to mail them out in all 50 states. Additionally, the Postal Service’s board of governors could step in and issue a binding policy resolution blocking the rule.

Court Fights

A federal judge in Washington, D.C., blocked the Postal Service from implementing the proposed rule. The judge found that it would violate a 2021 settlement agreement between the Postal Service and the NAACP. Meanwhile, a Massachusetts district court issued a ruling blocking the Postal Service from implementing the executive order in the 23 states that brought the lawsuit. In another case, a D.C. district court judge declined to block the executive order because the Postal Service had not yet taken action to implement it. This ruling has been appealed to the D.C. Circuit Court of Appeals on an expedited briefing schedule.

While these rulings have blocked the rule from taking effect, the situation is constantly evolving. To stay up to date, sign up for The Markup — our weekly update on election law and policy.