What Supreme Court Justices Have Said About Mail-in Voting
Newsweek · C · trust 62/100
0 Share Newsweek is a Trust Project member See more of our trusted coverage when you search. Prefer Newsweek on Google to see more of our trusted coverage when you search. The Trump administration asked the Supreme Court on Thursday to lift a lower court order blocking new Postal Service restrictions on mail -in ballots, setting up a fight that could reach the justices for the third time in six weeks just as the first ballots for November's midterms go out.
The request targets a temporary restraining order issued by U.S. District Judge Indira Talwani in Boston, who found that election officials would face "irreparable harm" if forced to comply with the rule for the 2026 midterms, calling compliance "practically impossible" with the election two months away. The Supreme Court has asked for a response by September 8.
The case has already produced one surprising break from ideological lines this year, and legal experts say the individual justices' records on mail voting offer a mixed picture of how they might rule on the president's latest request.
The clearest signal so far came in June, when the Supreme Court ruled 5-4 in Watson v. Republican National Committee that federal law does not bar states from counting mail ballots that arrive after Election Day, as long as they were postmarked on time. Justice Amy Coney Barrett wrote the majority opinion, joined by Chief Justice John Roberts and Justices Sonia Sotomayor , Elena Kagan and Ketanji Brown Jackson .
Barrett wrote that election day statutes require the electorate's choice to be made on election day, but do not set a deadline for ballot receipt. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch and in part by Justice Brett Kavanaugh , arguing that letting ballots arrive after Election Day risks undermining public confidence in election integrity.
Kavanaugh has staked out a consistent position on mail ballot deadlines since 2020, when he wrote in a concurrence in Democratic National Committee v. Wisconsin State Legislature that states want to avoid the chaos that can come from thousands of absentee ballots arriving after Election Day and potentially flipping a result. He has also invoked what is known as the Purcell principle, the doctrine that courts should avoid changing election rules close to a vote, in filings related to the current dispute.
Sotomayor and Kagan dissented from the Supreme Court's August 24 order lifting an earlier injunction against the president's executive order, along with Jackson. Sotomayor wrote that the ruling did not address whether the administration's attempts to interfere with state election administration are lawful, and did not suggest the executive branch has constitutional or statutory authority to implement the president's directives.
Jackson wrote separately that the decision needlessly injects chaos and uncertainty into the midterms.
"It's quite possible we get a district-court ruling issuing a preliminary injunction today, which would moot the current Supreme Court appeal on the TRO," Richard Hasen, director of the Safeguarding Democracy Project at UCLA School of Law, told Newsweek. A new stay request would likely follow, he said, first to the U.S. Court of Appeals for the First Circuit and then to the Supreme Court, or possibly straight to the High Court.
Joshua Douglas isn't convinced the administration has much of a case at all. "The argument that the president has the authority to regulate state election processes is exceedingly weak," Douglas, associate dean for research at the University of Kentucky Rosenberg College of Law, told Newsweek. "I will be very surprised if five justices rule in his favor."
David Becker, a former Justice Department attorney who now leads the Center for Election Innovation and Research, has filed legal papers supporting the states in the case.
"The time to implement significant changes to how we run our elections for the 2026 midterms has long since passed," Becker said. "That's true even if they were good changes, which the mail EO definitely is not. The first ballots being mailed only confirms this fact." Hasen wrote separately on his Election Law Blog that the president does not have the authority to reshape mail balloting through executive order.
President Donald Trump 's March executive order directed the Postal Service and the Department of Homeland Security to help screen mail ballots for fraud. Under the plan, states would have to upload lists of eligible voters to a new federal portal, and USPS could refuse to deliver ballots for voters not on those lists or whose envelopes fail to meet new design standards.
A coalition of 23 states and the District of Columbia sued, arguing the order conflicts with the Constitution's grant of election authority to the states. Talwani sided with the states and blocked the rule from taking effect for the 2026 election.
Solicitor General D. John Sauer told the Supreme Court that Talwani's order interferes with the Postal Service's efforts to prevent voter fraud through the mail. Sauer argued that states cannot use the federal mail system while claiming exemption from Postal Service rules governing envelope design and voter information.
The administration frames the rule as routine mail regulation rather than federal control over how states run elections, arguing USPS already has broad authority to set envelope and delivery standards for anything that moves through the postal system. Sauer's filing also leaned on election-integrity language, warning that unverified mail ballots dilute the votes of eligible voters and erode "public confidence in the integrity of the electoral process."
White House spokeswoman Lauren Bis has echoed that framing publicly, calling the rule a "commonsense" measure meant to ensure "only Americans are electing American leaders."
At a hearing Thursday, Talwani pressed Justice Department attorney Michael Velchik on whether the tracking portal was even…
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