The Mail Voting Order Rests on Numbers the DHS Won’t Defend
Somewhere in a county warehouse in California, stacks of ballot envelopes are sitting on pallets, printed weeks ago, waiting to be stuffed and mailed. Jesse Salinas, the registrar in Yolo County, told the Associated Press his office has already printed its envelopes for November, and ballots start going out in 11 days. As of Monday afternoon, he does not know whether those envelopes are legal.
That is the practical meaning of what the Supreme Court did this week. In a six to three ruling split along ideological lines, the justices lifted a lower court order that had blocked key parts of President Trump’s March executive order restricting voting by mail, according to NPR. The court did not say the order is constitutional. It said something narrower and, in a way, stranger: that the 23 states and Washington, D.C., who sued back in June had jumped the gun. The unsigned opinion even noted that nothing it decided guarantees any step the government takes will hold up, and that time will tell. Time is exactly what election officials do not have.
Here is what the order asks for. According to NPR, it calls on Homeland Security to build lists of adult citizens for each state, directs the Postal Service to obtain lists of eligible mail voters, and tells USPS to deliver ballots only to people on those lists. The Postal Service’s final rule, published Friday, would require states to feed voter data into an electronic system and attach unique barcodes to every ballot envelope, according to Reuters. Nearly one third of us vote this way. The Election Assistance Commission found that 29 percent of voters in 2024 cast ballots by mail, according to the AP. Tammy Patrick of the Elections Center, an association of 2,500 election officers, told the AP that not one state runs its elections the way the rule describes.
Now look at the justification. The whole architecture rests on the claim that noncitizens are voting in numbers that matter. In July, the president said in a primetime address that his administration had found more than 250,000 noncitizens on the voter rolls of Nevada and three other states, according to NPR. This week NPR obtained a recording of a call between DHS and Nevada election officials through a public records request. On that call, federal officials admitted the nearly 16,000 figure they had announced for Nevada was a ceiling, not a count, and that every name still needed manual review. The next day, DHS sent Nevada a list of 185 voter ID numbers it said it was confident about. Nevada asked what data was used to match those 185 people. DHS declined to share it. An official familiar with a similar call in Pennsylvania told NPR it was clear the agency did not trust its own public numbers.
So the same department that would build the citizenship lists governing who gets a ballot has, by its own account, verified 185 of the 16,000 it advertised in one state, and will not show its work. Meanwhile Secretary Markwayne Mullin has threatened fines and prison for election officials who do not act on DHS findings, according to NPR. Nevada’s deputy secretary of state put the risk plainly: falsely flagging a citizen as ineligible terrifies and disenfranchises a real voter.
The legal maze continues. A second nationwide injunction from Judge Indira Talwani still bars the Postal Service from carrying out the order, and on Tuesday she found USPS had violated it by finalizing the rule anyway, though she imposed no penalty, according to Reuters. Scholars like UCLA’s Rick Hasen told the AP the rule almost certainly cannot touch voters in November.
Maybe. But North Carolina’s first ballots go out Sept. 4, according to the AP, and clerks in thousands of small offices are planning around a rule nobody can follow, built on numbers the government itself will not stand behind. The Constitution hands election rules to states and Congress. The Supreme Court has not disagreed yet. It has just told the people who run our elections to wait and see. Everyone knows time is literally running out. Go beyond the headlines…
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