Authored by: Amanda Karras, Executive Director / General Counsel, International Municipal Lawyers Association
Background
The Constitution assigns primary responsibility for federal elections to the States, subject only to preemption by Congress. U.S. Const. art. I, § 4, cl. 1; U.S. Const. art. II, § 1, cl. 2, 4. States and local governments administer virtually all aspects of elections in accordance with the Constitution and federal laws passed by Congress, including registering voters and maintaining voter rolls; maintaining lists of voters who opt in or out of mail-in voting; training election officials; and issuing and processing ballots, among many other duties. Congress has established certain baseline requirements for federal elections, but has left States considerable room to determine how best to meet those requirements. All states allow some form of mail voting, though procedures and requirements vary by state.
Executive Order
On March 31, 2026, President Trump issued Executive Order No. 14399 – Ensuring Citizenship Verification and Integrity in Federal Elections (the “EO”), which, if implemented, would result in sweeping changes to States’ mail-in ballot processes and would create potential penalties for state and local officials as they seek to administer those processes.
Section 2 of the EO directs the Secretary of Homeland Security to establish a list of U.S. citizens over the age of 18 at the time of the upcoming federal election by utilizing Social Security Administration records, SAVE data, and other federal databases (the “State Citizenship List”). The State Citizenship List will also include the individual’s residence. The EO then directs the Secretary to transmit that State Citizenship List to the chief election official of each State, no fewer than 60 days prior to the election. The EO requires the Secretary to establish a procedure to allow for corrections by individuals and to enable States to suggest modifications to the State Citizenship List, though the final list is within exclusive federal control. § 2 also instructs the Attorney General to prioritize the investigation and prosecution of State and local officials involved in election administration of Federal elections who issue ballots to individuals not eligible to vote in the election.
Section 3 of the EO directs the U.S. Postmaster General to propose new rulemaking to address mail-in ballots. The EO directs that the proposed rule should specify that USPS “shall not transmit mail-in or absentee ballots from any individual unless those individuals have been enrolled on a State-specific list” which will be created by USPS.
Section 5 of the EO directs the Attorney General and heads of agencies to withhold federal funding from “noncompliant States and localities where such withholding is authorized by law.” This provision also requires States and localities to retain records regarding ballots cast and voter participation for a 5-year period.
Litigation
State of California v. Trump
A group of States sued in federal district court in Massachusetts, arguing the EO violates the separation of powers, the Elections & Electors Clauses of the Constitution, the anti-commandeering doctrine, and constitutes an abuse of the President’s authority. The federal government argued the claims were not justiciable, as the EO was simply directing internal executive branch officials to act and it did not create a cognizable injury for the States. On June 18, 2026, Judge Talwani issued a memorandum and order rejecting the federal government’s arguments that the States’ claims were not ripe for review as to the November midterm election. The court credited the States’ arguments that there is significant preparation underway for the midterm election and in “light of imminently impending elections, prudential considerations do not warrant deferring consideration of Plaintiffs’ challenges with respect to the 2026 elections.”
On June 25, 2026, Judge Talwani then ruled on the States’ motion for summary judgment, declaring §§ 2 and 3 of the EO “legally void as they are ultra vires and unconstitutionally violate the separation of powers…” The defendants were enjoined from implementing §§ 2 or 3 with respect to the November midterm election or any earlier federal election in the Plaintiff States.
Supreme Court Decision
The federal government sought a stay of the injunction issued by Judge Talwani in the State of California v. Trump case. On August 24, 2026, the Supreme Court issued a per curiam order providing that relief, lifting the injunction that had prohibited the federal government from implementing §§ 2 and 3 of the EO for the upcoming midterm election. The Supreme Court found the federal government was likely to prevail on the merits of its argument that the district court lacked jurisdiction to enter the judgment because the States lacked standing to sue at this early stage of litigation and because the case was not yet ripe. The Court reasoned that the EO’s provisions that were enjoined were internal directives to executive officials and they imposed “no obligations on the States, so they ‘suffer no concrete harm from’” those directives. Instead, any source of injury the States claimed would be based on “downstream action that the Secretary ‘might take in the future’ to implement it.”
The Court emphasized that § 2 can only be implemented by its own terms to the “extent feasible and consistent with applicable law.” And, the Court rejected the States’ arguments that § 2 infringes on the States’ sovereign authority to create election rules. The Court similarly rejected the States’ argument that § 3 requires them to overhaul their existing election procedures. Instead, the Court explained the EO is not a proposed rule, let alone a final rule and it therefore imposes no legal obligations on the States. Here, the Court admonished that “[f]ederal courts review final rules, not proposed rules––and certainly not antecedent internal directives to propose a rule.” The Court found the claimed harm based on § 3 as equally too speculative to provide the basis for standing. The Court indicated if a later final rule by the Postal Service harms the States, they may challenge that rule. Notably, the Court provided that its disposition of the application for a stay of the injunction “does not mean that any measure taken by the Government to implement the Order will necessarily be lawful.”
League of Women Voters v. Trump
Separate from the State litigation, a group of voting rights organizations sued to enjoin the implementation of § 3 of the EO in the same federal court as the States’ case. Although the cases were consolidated on April 22, 2026, they proceeded on slightly different tracks. Judge Talwani’s June 18 order rejecting the federal government’s ripeness arguments also applied to the League of Women Voters case. But the summary judgment order did not. Instead, on July 20 (after the ruling in favor of the States), the voting rights organizations sought a preliminary injunction as to § 3 of the EO. On August 11, 2026, the district court granted the League of Women Voters’ preliminary injunction. However, in light of the Supreme Court’s decision in the State of California case, the defendants moved to vacate the preliminary injunction in this case, and the court granted that relief on August 26, 2026.
The USPS Final Rule
While this litigation was ongoing, on August 21, 2026, USPS published its final rule, which, among other things: requires that outbound and return federal ballot mail be mailed with specified standards (DMM Section 705.24.3.1 & DMM Section 705.24.3.2); requires State and local election officials to register for the Postal Service Federal Ballot Mail Portal if they intend to allow mail-in or absentee ballots and it requires these officials to ensure that individual voters have been “enrolled with the Postal Service for inclusion on the state’s Mail-In and Absentee Participation List.” (DMM Section 705.24.4.1 & DMM Section 705.24.4.2).
The Rule also specifies that the Postal Service will review any outbound federal ballot mail to ensure it meets the ballot standards set forth in the rule and is sent to individuals enrolled on the state’s participation list (DMM Section 705.24.5.1). Additionally, any outbound ballot mail “must be entered at a facility that performs business mail acceptance functions or at a Postal Service retail counter.” (DMM Section 705.24.5.2). And, the Rule provides that noncompliance with 24.51 and 24.5.2 will result in the ballot mailer being returned to the authorized user. (DMM Section 705.24.5.3).
Current Status
Back in district court, both the plaintiff States and the plaintiff voter organizations challenged the final USPS rule. Judge Talwani granted the plaintiffs’ motion for a temporary restraining order (TRO) on August 27, 2026, staying USPS from implementing certain sections of its Final Rule. Although the court had just lifted its prior injunction in the League of Women Voters case, it found that the challenge ripened once the Final Rule was issued. (The earlier cases challenged the EO, and these new complaints challenge the Final Rule. The court concluded that both the States and organizational plaintiffs likely have standing because they have demonstrated concrete injuries-in-fact, given the mandatory requirements that require immediate actions from States and the confusion the rule has caused for the organizational plaintiffs’ members as well as the significant risk of disenfranchisement the Final Rule imposes. On the merits, the court found the plaintiffs were likely to succeed that USPS lacked authority to issue the Final Rule as Congress had not delegated any authority to USPS to permit it to regulate election mail. The court also found the Final Rule is likely “unconstitutional in imposing these requirements on the States… and the Final Rule is [likely] unconstitutional in prohibiting non-compliant State and local officials from using the United States Postal Service to mail ballots.”
The court found the plaintiffs had also established irreparable harm because “States have neither time nor funds to design new mail ballots, seek approval of the new designs, order production of mail ballots, update their own election management systems, train election officials to use the USPS portal, and upload citizen data to the portal, all before the midterms.” The court called compliance with the rule “practically impossible as to the 2026 midterm elections.”
The order enjoins USPS from taking any steps to implement the following components of the final rule: “a. DMM Section 705.24.3.1, to the extent that the section makes Ballot Mail Envelope Standards mandatory; b. DMM Section 705.24.3.2, to the extent that the section makes Return Federal Ballot Mail Envelope Standards mandatory; c. DMM Section 705.24.4.1; to the extent that the section makes Postal Service Federal Ballot Mail Portal registration mandatory; d. DMM Section 705.24.4.2; to the extent that the section makes voter enrollment in the Postal Service Federal Ballot Mail Portal mandatory e. DMM Section 705.24.5.1; f. The first two sentences of DMM Section 705.24.5.2; and g. DMM Section 705.24.5.3(a), (b), (c).”
The TRO is in effect for fourteen days. The Plaintiffs also filed a preliminary injunction motion, which the district court took under advisement. If that motion is granted, the relief could be extended for a longer period, depending on whether the district court or an appellate court stays any injunction.
As a result of the Supreme Court’s stay, no injunction remained in effect against § 2 of the EO. Additional developments are likely, so interested parties should monitor these cases regularly.
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