The Executive Order to Restrict Vote by Mail: Trump is still trying to suppress your vote
Data on who votes by mail suggests that many Americans like
it and have confidence in it. For instance, States United reports that
40% of voters who are 65 and over vote by mail. And in 2024, 905,343 members of
the military and Americans living abroad voted by mail.
Trump has defended casting his own ballots by mail, saying he
did it “because I’m president” and “I had a lot of different things” to do. But
when others do it, there is cheating. In essence, the attacks on voting by mail
have become a convenient, if false, vehicle for keeping the voter fraud
narrative Trump loves to push on the front burner.
Trump has been trying to end Americans’ ability to vote by
mail. His most recent effort, after several failed ones, started with a new
executive order he signed on March 31 of this year: “ENSURING
CITIZENSHIP VERIFICATION AND INTEGRITY IN FEDERAL ELECTIONS.” It’s a plot
to transfer control over who gets to vote from the states, who have that
authority under the Constitution, to the federal government, which does not.
It would have been unimaginable for the Carter, Clinton,
Obama or Biden administrations to restrict voting like this. Even for the
Reagan or Bush administrations. The federal government is going to prevent
states from using the U.S. Mail to send out ballots, unless the states let the
federal government decide who is eligible to vote—under rules set by each
state. It’s rank voter suppression, removing decision making authority from the
states and vesting it in the Trump administration, which has repeatedly demonstrated
its interest in winning, even if that means keeping Democrats from voting or
refusing to count their votes when they do.
There should be sustained outrage and protests over this. But with this administration, there is so much going on that it becomes hard to focus on any one thing. They are counting on that here, which means it’s essential for us to pay attention. We’ll be following this closely as the situation develops, after laying out the basics tonight.
There are, of course, lawsuits challenging this executive
order. Three of them, brought by the Democratic Senatorial Campaign Committee
(DSCC), the League of United Latin American Citizens (LULAC), and the National
Association for the Advancement of Colored People (NAACP), were consolidated in
front of Judge Carl Nichols in the District of Columbia. Last month, the
Judge declined to
enter an injunction that would stop the administration’s efforts to get voter
lists.
In a
notice filed Thursday in federal court, the Trump administration
advised the court it has created a “new General Privacy Act System of Records
(“SORN”) to coincide with its proposal to amend the Mailing Standards of the
United States Postal Service, Domestic Mail Manual (DMM), regarding the
transmission of mail-in or absentee ballots for federal elections.”
That’s important because Judge Nichols wasn’t giving a seal of approval to the administration’s plans; instead, he held that they weren’t far enough along toward implementation for him to grant an injunction, which requires proof that irreparable injury is imminent. He wrote, “The Court recognizes that the Postal Service may ultimately issue a final rule that directly affects Plaintiffs or their members, or that the Government may develop State Citizenship Lists that omit specific individuals due to particularized flaws. Plaintiffs may, of course, renew their motions if and when those future actions occur. Until then, however, Plaintiffs cannot show that preliminary injunctive relief is warranted.”
That order raised similar claims about the “ripeness” of the
issues for a decision, to the ones raised in the consolidated cases before
Judge Nichols. Judge Talwani ruled that claims for “elections occurring after
November 3, 2026” were not ripe, but permitted others to go forward. That means
she will consider the plaintiffs’ claims as they apply to the midterm
elections. She held that the court should not delay review given the
“ever-narrowing window of time” before the election and some states’ primaries.
There is more to come in these cases.
The challenges to this executive order may well determine
how and when you vote this November. So I asked my Brennan Center colleague
Wendy Weiser, one of the lawyers in the League of Women Voters case, to share
her perspective. This post runs longer than our usual Saturday night fare, so
feel free to save the rest for another time. But this issue is so critically
important I wanted to make sure we all have a baseline understanding of what’s
at stake here, especially with the prospect of the Supreme Court deciding Watson,
the Mississippi case over whether ballots mailed by election day but not
received until afterward can, where state law permits it, be counted. We
discussed it here.
It’s important to understand that case presents a separate issue from
developments with the executive order.
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My questions to Wendy and her answers follow here.
Why does Trump hate voting by mail?
Trump does not hate mail voting, at least not for
himself. In fact, he has voted by mail on many occasions, including in March of
this year. Nonetheless, he relentlessly criticizes the practice and is trying
to make sure that the rest of us cannot similarly access that convenient form
of voting.
Mail voting, or absentee voting, refers to a set of election
practices that allow voters to receive or transmit ballots to election
officials outside of a polling place (including by mail, at ballot drop boxes,
or at designated election offices). It is convenient. It is secure. And it is
very popular.
The president’s attacks on mail voting have nothing to do
with any real problems with the practice. American elections have featured mail
voting in some form or another dating back to the Civil War. Over time, the
practice expanded so that by 2016, 40% of voters cast mail ballots, in red
states, blue states, and purple states alike. The practice was backed by a
broad bipartisan consensus—and for good reason. Not only is it convenient and
cost effective, but it is also safe, protected by many layers of
security features, including bar coding and careful verification procedures by
election officials. Years of studies and investigations have proved our mail
voting systems do a great job of preventing malfeasance.
So then, what is behind Trump’s campaign against mail
voting? First, his election losses. For the past six years, the president has
been waging a campaign to discredit the results of the 2020 election, which he
lost. Because of the pandemic in 2020, 69%
of voters cast their ballots by mail, a sharp increase from before.
That shift made mail voting a convenient target for conspiracy theories. Trump
also complained about mail voting in the 2016 election; although he won that
election, he lost the popular vote by almost 3 million votes.
Now, the president and his administration are using his
conspiracy theories about mail voting and lies about the 2020 election as a
springboard for a broader effort to undermine and interfere in this year’s
midterms. My organization has been documenting—and fighting—the
administration’s unprecedented and
concerted efforts to meddle in elections. They are going after multiple
elements of our election system, from our voter rolls and voting machines, to
election officials, to the ways we vote. Mail voting remains a significant
element of our elections (with 30% casting
ballots by mail in 2024) and is one of the president’s recurring targets.
What is involved in Trump’s newest plan to interfere with
mail in voting?
The president’s new
plan to regulate mail voting is in an executive
order that has not yet been—and we hope never will be—fully put into
effect. He issued the order, cynically called “Ensuring Citizenship
Verification and Integrity in Federal Elections,” on March 31, 2026. It aims to
regulate mail voting in the following ways:
- It
orders the Department of Homeland Security to create lists of all adult
U.S. citizens by state;
- It
asks states that allow mail voting (which is all of them) to provide the
U.S. Postal Service with lists of their voters who are eligible to cast
and to whom they intend to provide mail ballots;
- It
directs the Postal Service to refuse to deliver mail ballots if voters are
not included on newly mandated lists; and
- It
directs the Department of Justice to prioritize investigating and
prosecuting election officials who allegedly provide ballots to ineligible
individuals.
There is a lot that is wrong with this plan. A major one is
that it essentially orders the Postal Service to refuse to deliver valid
election mail from (or to) eligible American voters.
Nothing like this has ever been done before. In fact, federal law requires the
USPS to be a neutral service, prohibiting it from choosing the kind of mail it
delivers or the people to whom it delivers mail.
There are several cases challenging this executive order
(including one brought
by the Brennan Center, with co-counsel) pending in the federal courts. The
ongoing litigation will determine whether and how the order will impact the
upcoming elections.
How would the executive order impact voters in the
midterms and beyond if it went into effect?
First and foremost, we hope (and expect) that courts will
step in and block Trump’s mail voting executive order before November in one or
more of the lawsuits challenging it.
If the order is actually implemented, many eligible American
voters will be blocked from casting mail ballots, and those Americans who can
only vote by mail (like many disabled, elderly, rural, Native, and student
voters) could be flat out disenfranchised.
The order would impose a massive cost on states, which would
be passed down to their residents. States would be strongarmed into creating
entirely new election processes and infrastructure, and making changes to
voting materials, educational materials, and trainings, in a short period of
time. It’s easy to imagine how much can go wrong.
All of this will sow doubt and mistrust in elections, and will lead to even more confusion and post-election disputes over election results.
There are two lawsuits challenging the executive order
pending in federal court in Massachusetts and three in federal court in D.C.
The Brennan Center filed one of these suits in
Massachusetts, along with co-counsel (ACLU, ACLU of Massachusetts, Legal
Defense Fund, Asian Americans Advancing Justice | AAJC, and LatinoJustice
PRLDEF) on behalf of civic organizations that serve voters (League of Women
Voters of Massachusetts, League of Women Voters, Association of Americans
Resident Overseas, U.S. Vote Foundation, OCA – Asian Pacific American
Advocates, and Delta Sigma Theta Sorority, Inc.). California and nearly two
dozen other states also challenged the order in the same court district, and
those lawsuits have been combined.
Our lawsuit argues that:
- The order violates the Constitution’s separation of powers because the president doesn’t have authority to set election rules.
- The president has overstepped his constitutional authority by attempting to direct the USPS, an independent agency that only Congress can regulate.
- The order’s commands to USPS are unlawful because, among other things, they violate statutes that require USPS to serve as a neutral mail carrier.
- The order’s mail voting provisions unduly burden voters in violation of the Constitution’s protections of the right to vote and prevents eligible citizens from voting in violation of the Voting Rights Act.
- The order unconstitutionally tries to force states to change their election procedures by threatening not to deliver mail-in ballots unless they do so.
- The order does not satisfy the requirements of the Privacy Act designed to protect Americans’ private data.
The legal questions in these cases should be easy ones.
Neither the president nor USPS has the power to regulate federal elections.
Under the U.S. Constitution, only Congress and the states have the power to
make rules for federal elections – not the president. What’s more, the
Constitution gives authority over the postal service only to Congress – not the
president. Back in March 2025, the president issued another executive order
purporting to change the rules for other aspects of elections, including voter
registration. Three federal courts blocked that order because the president has
no role in regulating elections. That should be true here too.
The federal court in Massachusetts held a hearing on June 2.
Plaintiffs argued that the court should block the order from being implemented,
and the administration argued the case should be thrown out because it had not
yet implemented the order. Just yesterday, the court ruled that the case may
proceed as applied to elections this year, including the midterms, rejecting
the government’s argument that it is not ripe for judicial review. The court
has not yet ruled on the motions to block the order.
Other cases challenging the executive order were
consolidated in federal court in D.C. On May 28, the D.C. court ruled that the
plaintiffs’ claims were not yet ripe for review and declined to block the
order. Those cases are still pending too.
What’s the broader outlook—what should we expect in terms
of voter suppression efforts at the midterms?
The Trump administration has been engaged in a multipronged,
concerted campaign to undermine the 2026 elections—laying the foundation to
interfere with election procedures, suppress votes, or even overturn results.
This campaign began on the president’s first day in office in 2025 (when he
pardoned the January 6 defendants) and shows no signs of slowing down. It is
aimed at destroying trust in elections to depress participation and justify
taking control.
One jarring feature of this campaign is the abuse of law
enforcement powers for political ends. Just last week, the FBI targeted four
organizations in Ohio that engage in voter mobilization, abusing investigative
power to target perceived adversaries. One of the targeted groups—the Ohio
Organizing Collaborative—has helped to register 100,000 voters in 2024.
Earlier, the FBI raided an election
office in Fulton County, Georgia, seizing election materials from 2020
and threatening to harass thousands of hardworking election officials. And the
Department of Justice has sought voter
records from nearly every state in the country that contain voters’
confidential information, like drivers’ licenses and Social Security numbers
and voting history, with a clear intent to meddle with the voter rolls.
Administration leaders have repeatedly threatened to escalate their attacks on
voters, voter mobilization groups, and election officials in advance of the
elections.
Trump may have a plan, but so
do we. The president has telegraphed his intent to meddle in elections for
a long time. His efforts are, for the most part, unlawful. That means courts
can step in, and already have stepped in, to stop them. For example, eight
courts so far have ruled in 31 lawsuits DOJ filed to try to compel states to
turn over voter rolls; all eight (including 4 judges appointed by Trump) have
thrown out DOJ’s claims. And in the aftermath of the 2020 election, Trump and
his allies tried to undermine the results, only to be blocked by the courts
time and time again.
The Brennan Center and others are also preparing outside of
courtrooms, training citizens, advocates, and public officials to protect our
elections and be ready to guard against federal abuses of power. As they do
every year, state and local election officials have prepared plans to defend
against all manner of threats, including from foreign meddling, domestic
agitators—and now, sadly, federal government interference. That includes backup
plans to ensure that citizens can vote. Leaders and experts from across the
political spectrum stand ready to rebut the myriad lies about elections that we
know are coming. And community organizations and citizens across the country
are mobilizing to protest or push back against any illegitimate attempts to
interfere in elections or suppress votes.
The administration is not the only threat to free and fair
elections. The Supreme Court may be poised to unleash chaos as well. Sometime
this month, it will decide a case that
could change the deadline for mail ballots for millions of Americans, throwing
election procedures into disarray in more than 30 states. It has already
unleashed chaos this election cycle—and a race to the bottom in
gerrymandering—by gutting the landmark Voting Rights Act in its shameful Callais decision and green lighting
last-minute redistricting efforts targeting communities of color.
What can we do to prepare?
The most important thing any American can do is to make a
concerted plan to vote in this year’s elections. Check your voter registration
status, learn all your voting options, and vote as early as you can. Educate
yourself about the election process in your state, and don’t fall for
conspiracy theories. Make sure that everyone you know does the same.
If you can, get involved in the election process. Sign up to
be a poll worker, an election worker, a translator, or an election observer.
Volunteer for a campaign or a civic group. Support nonprofit groups that are
working to protect elections or help voters. Do what you can to support
embattled local election officials and scared voters in your community.
Whatever lane you pick, it’s important to do something.
Beyond participating in elections, Americans across the country should be prepared to stand up for democracy and free and fair elections. Voting rights don’t enforce themselves. Democratic values don’t sustain themselves. It’s on all of us to stand with our neighbors, speak out against injustice, hold public officials accountable, and mobilize peacefully to protect each other and our right to vote.
