Nothing changes yet with the Supreme Court’s order on elections. But it could open door to ‘chaos’

The Supreme Court’s decision giving preliminary approval for President Donald Trump’s order restricting mail voting may not lead to a single election procedure changing during the November midterms, but it has already thrown into uncertainty the method that nearly one-third of the country uses to vote.

Rather than saying that Trump’s order is legal, the high court said Monday it was too early for Democratic-run states to challenge it in June, when they convinced a federal judge in Boston to freeze the order for November’s election. That effectively restarts the legal fight over the order in an incredibly compressed timeline, with initial ballots scheduled to be sent to North Carolina’s overseas and military voters in just over a week, on Sept. 4.

A posted new regulations from the Postal Service that would go into effect Tuesday if the legal pathway is fully cleared.

That new rule requires specific formatting for envelopes containing mail ballots — which may force some jurisdictions to completely revise theirs — and makes states use an electronic system to identify to the Postal Service who is voting by mail. If states don’t comply with the rule, their mail ballots won’t get sent.

The prospect of such a potential sweeping overhaul in mere days boggled critics’ minds. In her dissent, Justice Ketanji Brown Jackson warned that the decision “needlessly injects chaos and uncertainty into the upcoming midterm elections.”

David Becker, executive director of the Center for Election Innovation & Research, agreed, saying the majority “seemed to create complete chaos leading up to the midterm elections” and it’d be “impossible” for states to comply with the new rules at this late date.

Some ballots for the November election are set to go out within days

Jesse Salinas, the registrar of Yolo County in California and president of that state’s association of election officers, noted that ballots in his state start going out in 11 days and his county already printed its envelopes.

“You look at the timeline, and it’s a bit chaotic,” Salinas said, noting he doesn’t know precisely which envelope designs comply with the new rules.

He dismissed the idea of a last-minute revision in procedures. “The capacity to do that, I just don’t see it,” Salinas said.

Tammy Patrick, chief program officer at the Elections Center, an association of 2,500 election officers, warned that it’s impossible for any state to comply with the rule and that no one she talked to has tried.

“There isn’t a single state that does their elections in a way that this postal rule lays out,” Patrick said in an interview. “There has been this assumption that this is not going to happen because it could not happen the way it’s laid out, because no one does it this way.”

Cisco Aguilar, the Democratic Secretary of State in Nevada, where every registered voter gets a mail ballot, noted the post office had already misdelivered three dozen mail ballots from his state’s June primary.

“They’re going to come in within seven days and build a massive database that has 100% accuracy?” Aguilar said in disbelief. “It is impossible to implement this system in that time frame.”

Trump votes by mail, but has sought to curb it for others

Trump has long sought to make voting by mail largely impossible, though he himself has repeatedly cast his ballots by mail.

Trump falsely blamed his 2020 loss on mail voting and spun up baroque conspiracy theories that he’s tried to prove while back in office. Judges blocked him from creating new voting restrictions by executive order last year, and he only issued his latest order after his bill to revamp voting procedures stalled in the Senate amidst Democratic opposition.

The Election Assistance Commission found that 29% of voters in 2024 cast their ballots through the mail. Democrats are more likely to use mail voting than Republicans, a reflection of how the process has become polarized since Trump began attacking it in 2020. Still, the president has to date been unable to make the sweeping changes he’s sought because the Constitution grants control of voting rules to states, and in federal elections, to Congress — not the president.

Legal experts stressed that’s why they view it as unlikely Trump’s order will actually be implemented. Not only did the majority in the Supreme Court’s unsigned order note that it hasn’t determined whether the measure is constitutional, but every victory the administration has won so far has only been because it’s argued that it’s premature to talk about its constitutionality. Opponents are already weighing new lawsuits since the final rule was published Friday night.

More litigation is expected

Becker, a former Department of Justice lawyer who co-wrote a book debunking Trump’s 2020 election lies, added that he expects the next round of litigation to keep the order from being implemented in November. Rick Hasen, a UCLA law professor, said after the ruling: “This doesn’t necessarily mean anything in terms of November.”

Derek Muller, a Notre Dame law professor, said the Supreme Court still ensured a fraught court battle in the coming days.

“It puts courts in a terrible place, because whatever happens is super close to the election,” Muller said. “If it permits it, it creates super disruption for the states. If it suspends it, it visibly angers the administration.”

Hasen said it’s inconceivable that the regulation will impact voters in November.

“Both legal and practical reasons make this practically impossible to enforce,” he said of Trump’s mail voting order.

Elections are run by local officials in thousands of scattered offices, many of which don’t even have a full-time employee. Patrick said that those who work in the field have been left reeling.

“Election officials just feel like punching bags at this moment because they plan one way of conducting their elections, and have contingency plans if a fire breaks out, or one location loses power,” Patrick said. “But how do you plan for something that affects one-third, one half, or all of your voters?”