What Just Happened to Mail Balloting?

We can all be forgiven for not keeping up with the rapidly changing legal activity surrounding mail balloting. There has been so much. Complex changes have been proposed by the Trump Administration so near to the midterm elections that the changes themselves don’t seem to be the point. Instead, confusion and disenfranchisement are so predictable that election chaos must be the true intended objective. Voters in West Virginia need to be prepared.

The whole thing started with an Executive Order issued by Trump in March 2026. The Order inserted the federal government into state procedures for absentee and other mail balloting, claiming that federal intervention is necessary to maintain election integrity. Never mind that there is virtually no evidence of fraud in mail balloting and Trump himself votes this way.

The Order directed the Postal Service to issue a rule on handling mail ballots. A proposed rule was issued on March 19, 2026. That rule required state election officials to provide the USPS in advance with the names and addresses of voters to whom they would mail a ballot, along with sample outbound and return ballot envelopes for approval. State election officials would be required to certify that any mail ballots they provide to voters will comply with the procedures in the rule. If a state failed to certify, the USPS would not carry that state’s ballots through the mail.

The Lower Court Challenge

The Executive Order and the USPS rule were immediately challenged as unconstitutional by 23 states in one case and a group of organizations led by The League of Women Voters in a second. They argued that the Constitution’s Elections Clause and the separation of powers doctrine deprive the President and the USPS of any power to regulate elections. They also argued that Congress has not delegated the USPS any power to create by rule a new category of non-mailable material. But the merits of these arguments have not yet been decided.

Most of the recent legal wrangling has been about whether the USPS rule should go into effect before its constitutionality is finally determined. The federal district judge where the challenge was brought preliminarily ruled that the whole scheme is unconstitutional. She ordered the USPS to cease any further implementation, but only as to the November midterm elections, and only in the 23 plaintiff states. West Virginia was not one of them. The Government sought a stay in the Court of Appeals pending the appeal, but this was denied.

In the Supreme Court

Only the question of the stay, not of constitutionality, went to the Supreme Court. The Government’s sole argument was that when the states filed their action they had not been harmed, and therefore had no standing to sue, because there was no final USPS rule in place. A split Supreme Court agreed with the Government in a ruling on August 24, 2026.

Blinking reality, the Supreme Court’s majority said that with no final USPS rule in place, the states were inflicting harm on themselves by incurring planning costs that may not be necessary. The Court dismissed the states’ fear that their own election officials would be prosecuted. To demonstrate how wasteful and diversionary this Supreme Court ruling was, the USPS’s final rule – making real and immediate all the states’ concerns — was published by the USPS several days before the Supreme Court’s August 24 ruling. Surely the Court was aware this was about to happen.

Justice Jackson’s dissent should grab the attention of every American. Here is part of what she said:

Taking its eye off the ball, the majority misses the Government’s actual objective: to secure our imprimatur for its effort to foment chaos ahead of the November elections.

Rather than swallow the Government’s gamesmanship whole, the Court should have given this empty, strategic, and bad-faith stay bid the swift rejection it deserves.

The USPS Final Rule Back in the Lower Courts

The final USPS rule differs only slightly from the proposed rule. Crucially, the agency will not deliver mail ballots in states that do not share voter data with the federal agency. Additionally, the USPS would use new software to screen every envelope for compliance with the new standards before accepting ballots into its system. This review would include checking that the recipient was enrolled with the Postal Service to receive a mail ballot and that the ballot envelope meets certain specifications.

Immediately after it was published, the final rule was challenged again by the same states and nonprofit groups as before. On September 4, 2026, the district court judge once again found the whole scheme unconstitutional and issued a preliminary injunction barring the USPS from taking further steps to implement the final rule. That injunction applies nationwide.

The Trump Administration quickly appealed the September 4 district court injunction directly to the Supreme Court. This is a highly unusual procedure that bypasses the Court of Appeals. It is unclear how quickly the appeal will be resolved.

A Whistleblower Exposes the Trump Administration’s Defiance

Whether the Trump Administration will comply is questionable, because its response so far has been to defy the courts. On August 31, 2026, a whistleblower report detailed how the USPS rushed to implement the new software for scanning ballot envelopes, despite being under injunction from two courts not to do so.

The whistleblower detailed how the untested batch-scanning system can disenfranchise thousands of mail voters. When ballots are submitted to USPS in large-volume batches, if any one ballot in the batch cannot be verified or scanned for some reason, all ballots in that batch will be rejected.

The Potential Effect of Mail Ballot Chaos

Voters and election officials around the country are expressing confusion and worry that their mail ballots will not be counted. If the USPS refuses to carry mail ballots from entire states or if large batches of ballots are mishandled by its new procedures, voter disenfranchisement will be widespread. Nearly 47 million voters in 2024, or roughly 30% of the electorate, voted by mail.

Eight states automatically send mail ballots to all active registered voters before Election Day: California, Colorado, Hawaii, Nevada, Oregon, Utah, Vermont and Washington. In 29 states, any voter can request and submit a mail ballot without providing a reason, and 13 others, including West Virginia, grant absentee ballot requests for reasons approved by statute.

There is an obvious incentive for the Trump Administration to interfere with mail balloting. Thirty-seven percent of Democrats reported voting by mail in 2024, compared to 24% of Republicans.

Where Things Stand in West Virginia

The situation in this dispute changes almost daily. But for now, the USPS rule and the cloud over mail balloting it created are stopped nationwide until further notice. In West Virginia, that means the familiar rules for absentee voting still apply.  

Beginning September 18, county clerks will mail absentee ballots to those voters who have already applied. Thereafter, the clerks will promptly mail ballots to new applicants who qualify. The deadline to apply for an absentee ballot is October 29. The completed ballot must be postmarked by November 3, 2026.

It seems likely that the drama is not over. Hold onto your hats.