What Are the Odds Trump’s Executive Order Blocking Mail-In Votes Stands?

Essentially zero. Let’s discuss why.

Trump’s Second Executive Order

On March 31, the White House reported Trump issues second executive order on elections, giving U.S. Postal Service unprecedented control over mail voting.

The executive order is labeled ENSURING CITIZENSHIP VERIFICATION AND INTEGRITY IN FEDERAL ELECTIONS

The order mandates states to send the U.S. Postal Service a list of voters “to whom the State intends to provide a mail-in or absentee ballot” 60 days before any federal election, and directs the Postal Service to create “unique ballot envelope identifiers, such as bar codes” for those voters.

The Postal Service would only be authorized to deliver ballots from people on an approved list, which states would be allowed “to routinely supplement and provide suggested modifications or amendments” to.

DC Court Ruling

The district court in DC denied a preliminary injunction against the ruling. Justice Carl J. Nichols, a Trump appointee, sided with Trump as noted by the Court Listener.

That ridiculous ruling will be Trump’s last legal win in this matter.

ArtI.S4.C1.2 States and Elections Clause

Please consider the Constitution Annotated review of ArtI.S4.C1.2 States and Elections Clause

Article I, Section 4, Clause 1:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Nowhere in the Constitution or subsequent law is there a provision for the president to issue executive orders on voting rules.

Federal Court Hears Challenge to Trump Executive Order Restricting Mail-in Ballots

On June 2, the League of Women Voters reported Federal Court Hears Challenge to Trump Executive Order Restricting Mail-in Ballots

A federal District Court heard arguments today in a lawsuit [see LWV v Trump snip below] challenging President Trump’s March 31 executive order concerning mail-in voting. Plaintiffs argue that the order violates the US Constitution and federal law and risks mass disenfranchisement of eligible voters.

The Constitution makes clear that only the states and Congress can set the rules for elections. Nevertheless, the executive order attempts to override states’ mail-in voting laws by transforming the US Postal Service from a neutral mail carrier into an arbiter of who may cast a ballot by mail. The order also requires the Department of Homeland Security to build and give to each state a purported list of US citizens over the age of 18.

Plaintiffs asked the court today for a preliminary injunction to block implementation of Section 3 of the order, which directs the Postal Service to create unlawful new rules for the transmission of mail-in ballots.

LVW v Trump

The Executive Order’s directives to USPS are doubly unlawful. Not only does the President lack power over elections, but Congress, pursuant to its authority in the Postal Clause, U.S. Const. art. I, § 8, has established USPS as an independent entity charged with providing reliable and neutral mail delivery. In passing the Postal Reorganization Act of 1970, Congress required USPS to provide “prompt, reliable, and efficient services to patrons in all areas and . . . all communities.” 39 U.S.C. § 101(a).

In doing so, it stated that USPS must be operated “as a basic and fundamental service provided to the people,” providing services to “patrons in all areas and . . . to all communities.” Id. USPS has no authority to refuse to carry otherwise lawful election mail based on executive directives purporting to dictate voter eligibility; doing so would contravene Congress’s direct instructions.

The Executive Order would violate this statutory mandate by transforming USPS from a neutral mail carrier into the ultimate arbiter of who may cast a ballot. The Constitution forbids this attempted usurpation of power.

The President’s role is to execute the laws enacted by Congress—not to create new ones. Because the Executive Order exceeds the President’s constitutional and statutory authority and intrudes upon powers reserved to the states and Congress, it is unlawful and must be set aside

LWV Six-Point Challenge

• First, the Executive Order violates the constitutional separation of powers. The Constitution gives the states and Congress—not the President—the power to regulate elections.
• Second, the Executive Order is ultra vires. The Constitution gives Congress—not the President—power over USPS.
• Third, the Executive Order intrudes on state sovereignty in violation of the Tenth Amendment and bedrock federalism principles. The Constitution reserves the authority to regulate elections to the states, subject to constitutional restraints and laws passed by Congress.
• Fourth, the Executive Order unlawfully imposes an undue burden on the right to vote. In directing USPS to refuse to deliver lawful mail ballots, the Order threatens to disenfranchise eligible voters, including Plaintiffs’ members.
• Fifth, the Executive Order violates Section 11(a) of the Voting Rights Act, which prohibits government officials from acting under color of law to deny any qualified citizen the right to vote. By directing USPS to refuse to transmit the ballots of certain voters who are not enrolled in at least one of several ill-defined lists enumerated in the Executive Order, the Order denies the right to vote to scores of qualified citizens who will be excluded from those lists.
• Sixth, the Executive Order instructs the Department of Homeland Security (“DHS”) to compile and transmit a list of U.S. citizens to each state before every federal election—in a manner that squarely violates the Privacy Act and risks disenfranchising eligible voters.

LWV Will Easily Win on Merits

To succeed on merits, the LWV only needs to win one of the above points.

I expect the LWV will win on all six points.

The case is cut and dried. There is no chance of Trump winning despite a preposterous DC ruling.

Trump’s lawyers are going to be unmercifully crushed in court and they will get what they deserve too.

What About Ballot Counting Deadlines?

Under Mississippi law, a voter’s mail-in ballot is counted if it is postmarked on or before Election Day and arrives within five business days of the election.

Other states have similar provisions.

In March, the Supreme Court heard a challenge to Mississippi law in MICHAEL WATSON, MISSISSIPPI v. No. 24-1260 REPUBLICAN NATIONAL COMMITTEE.

I read all 170 pages.

The oral argument was long and technical, focusing on text (“cast”/”day”), history (19th-century practices, absentee voting for soldiers), federal statutes (e.g., UOCAVA for overseas/military), and practical concerns like finality, fraud risks, recall hypotheticals, and voter confidence.

It was a tedious read, and I don’t recommend it.

• Conservative justices showed skepticism toward Mississippi’s position (the state allowing the grace period).
• Justices Gorsuch, Thomas, Alito, and Kavanaugh pressed hard on finality (“when is the choice truly made?”), recall risks (e.g., could a voter send it back via FedEx?), appearance of fraud from late-arriving “stashes” that flip results, and line-drawing problems. Gorsuch was particularly active in hypotheticals challenging the petitioner’s definitions. Barrett grilled on consistency with early voting and finality before Election Day.
• Liberal justices (Sotomayor, Kagan, Jackson) were more supportive of the state, emphasizing history of state flexibility, no federal prohibition on reasonable receipt windows, longstanding practices in many states, and that Congress didn’t clearly preempt this. Sotomayor pushed back on selective historical readings.
• Barrett is a potential swing here—she probed both sides but seemed uneasy with loose finality.

The dispute is narrowly about grace periods (typically 3–7 days) for counting absentee/mail ballots that are postmarked or cast by Election Day but arrive afterward. Mississippi (and ~15 states + D.C.) allows this; the RNC argues federal “Election Day” statutes (1845-era laws) require receipt by Election Day for federal races.

The key takeaway is not this ruling itself, but all of the discussion on mail-in voting in general.

The important point, for those who slogged through the arguments, is that Mail-In Voting is here to stay.

My Expectation

I think team Trump wins this one 6-3 or 5-4.

If so, it won’t be a bad ruling. Does anyone like forever counting?

Practical Implications

• Rough Numbers: Only 0.1% to 3% of total ballots arrive after Election Day in states that count them. This is a small share of mail-in ballots, and a tiny fraction of all votes.
• Voters will adapt: They will vote earlier. In the current no-grace-period states, fewer ballots arrive late because voters know the cutoff and adjust.
• Accepting no ballots that arrive late will end one source of fraud claims by Republicans. That’s a good thing.
• A uniform Election Day receipt rule could make results feel more “final” on or soon after Nov. 3, reducing that narrative’s fuel. Again, that’s a good thing.

Unfortunately, this election day cutoff would not meaningfully speed up overall vote counting in California and other states.

California’s main counting bottlenecks come from the vast majority of mail ballots that arrive on or before Election Day (via drop boxes, early returns, etc.).

California suffers from a large volume all-mail system. It goes through signature verification and mismatch curing. Tossing late-arriving ballots won’t do much to drive the overall pace of counting.

Election law professor Rick Hasen notes “The main bottleneck is really not ballots that arrive after election day. The bottleneck is ballots arriving before or on election day.”

Five Key Takeaways

• Trump’s executive orders are heading for the ash can.
• The Appeals Court oral arguments rate to be amusing.
• Election day cutoff is not a bad thing. And that’s the ruling I expect. Voters can easily adapt.
• One source of fraud claims will vanish.
• This will not speed up election night counting.

A ruling against grace periods (my expected outcome) would tighten deadlines and reduce one source of late “dump” claims.

However, it wouldn’t transform California’s multi-day/weeks-long count into same-night results.

The Save Act Is Dead

In March, I posted the SAVE Act is dead. Officially it will be alive until it isn’t.

The odds of passage is still sitting at 8 percent in Polymarket where it’s been mostly stuck since the end of March.

I rather doubt there is even another attempt at passage with all the Republican infighting.

If it did pass, I think the Court would strike it for disenfranchisement and other reasons, but I would rather not find out.

Save Act Background

The Safeguard American Voter Eligibility (SAVE) Act is federal legislation that would amend the National Voter Registration Act (NVRA) to require individuals to provide documentary proof of U.S. citizenship—such as a passport, birth certificate, or certain REAL ID-compliant documents—when registering to vote in federal elections.

States would be prohibited from accepting registration applications without this proof, and the bill includes provisions for alternative processes, voter roll purges, and penalties for non-compliance.

The act requires the voter ID to be the same as their birth certificate.

This places an extraordinary burden on women who would need a birth certificate and a marriage certificate to register to vote. Multiple divorces and remarriage is particularly problematic.

The whole point of the Save Act and these executive orders is to steal the election.

For further discussion, please see SAVE Act Silliness: Trump’s “Go for the Gold” Killed It

Lie of the Day

Truth Social: THE SAVE AMERICA ACT is by far the most popular Bill of its kind ever put before Congress! President DJT

That is such obvious idiocy it’s hard to know what else to say.

In the above post I explain three reasons the bill would be ruled unconstitutional.

Fortunately, the point is moot. It’s never going to get out of the Senate.

For starters, it’s not a budget reconciliation item. Majority leader Thune won’t bring it up, and there are not 50 votes to replace Thune. The bill would not survive Senate rules anyway.

Meanwhile, Senate bickering is so intense (blame Trump), there may be no further budget reconciliation bills at all.