North Carolina began mailing ballots to voters two weeks ago, and the deadline for states to transmit requested ballots to overseas military voters is tomorrow.
asserted
states → begin → voters
So the Supreme Court had ample reason to conclude that there is not enough time for states to comply with President Donald Trump’s new mail-in ballot regulations this year.
asserted
states → have → regulations
But the timing question is separate from the underlying legal one: Does the U.S. Postal Service have authority to regulate the marking, preparation, and tracking of mail-in ballots?
asserted
Service → regulate → ballots
Justice Brett Kavanaugh’s concurrence shows he believes that it does.
asserted
it → show → ?
Trump issued his election-integrity executive order on March 31, directing USPS to develop new safeguards intended to prevent fraud, improve ballot tracking, and protect the integrity of mail-in voting in federal elections.
asserted
Trump → issue → elections
Democratic state attorneys general and voting groups sued, delaying implementation while the order was litigated.
asserted
order → vote → implementation
USPS finally published its rule on Aug. 26.
asserted
USPS → publish → Aug.
It requires state and local election officials who mail federal ballots to use prescribed Election Mail markings, automation-compatible envelopes, and unique barcodes on outgoing and return envelopes.
asserted
who → require → envelopes
Additionally, before each batch is presented to USPS, an authorized election official must also upload each voter’s name and mailing address to a federal portal, together with the barcodes assigned to that voter’s outgoing and return envelopes.
asserted
official → present → envelopes
USPS would then use that information to verify the outgoing ballot mail before accepting it.
asserted
USPS → use → it
The rule expressly leaves voter eligibility to the states.
asserted
rule → leave → states
USPS will not decide who may vote by mail, maintain voter rolls, open ballots, count votes, or know how anyone voted.
uncertain
anyone → decide → votes
Democratic states sued again, and a lower court blocked the rule for this election.
asserted
court → sue → election
On Monday, the Supreme Court declined to lift that injunction.
asserted
Court → decline → injunction
In his concurrence, Kavanaugh agreed that imposing the requirements this late would violate the Administrative Procedure Act because election officials lacked sufficient time to implement them.
asserted
officials → agree → them
But he separately wrote that the regulation may fall within USPS’s statutory authority.
uncertain
regulation → write → authority
The Constitution gives states significant authority over elections.
asserted
Constitution → give → elections
Article I’s elections clause says that state legislatures prescribe the “times, places and manner” of congressional elections.
asserted
legislatures → say → elections
But it also provides that Congress may “at any time by law make or alter such regulations.”
uncertain
Congress → provide → regulations
States thus have the initial authority to administer congressional elections, but Congress may supersede their rules.
uncertain
Congress → have → rules
Congress has exercised that power repeatedly, including by setting a uniform Election Day and, for example, enacting the National Voter Registration Act.
asserted
Congress → exercise → Act
Congress has also given USPS broad authority over the mail.
asserted
Congress → give → mail
Under 39 U.S.C. § 401, the agency may adopt regulations necessary to carry out its functions.
uncertain
agency → adopt → functions
Section 404 authorizes it to regulate the “collection, handling, transportation, delivery, forwarding, returning, and holding of mail.”
asserted
it → authorize → mail
USPS already uses those powers to guard against fraud and identity theft.
asserted
USPS → use → fraud
People submitting change-of-address requests may be required to verify their identity.
uncertain
People → submit → identity
Private mailbox services must collect identifying information and comply with USPS recordkeeping requirements.
asserted
services → collect → requirements
Service may be refused or terminated when the required information is false or missing.
uncertain
information → refuse → ?
That makes the ballot regulations less novel than critics suggest.
asserted
critics → make → ?
Requiring users of the federal mail system to provide information, use specified markings, or employ tracking technology is already part of postal regulation.
asserted
Requiring → require → regulation
The ballot rules follow the same basic model.
asserted
rules → follow → model
States still decide who can vote and who receives a ballot.
asserted
who → decide → ballot
USPS requires ballots entering its system to use standardized envelopes and individualized tracking information so election mail can be identified and followed.
asserted
mail → require → envelopes
Those requirements have straightforward purposes.
asserted
requirements → have → purposes
Automation-compatible envelopes reduce handling errors.
asserted
envelopes → reduce → errors
Election mail markings identify sensitive election mail.
asserted
markings → identify → mail
Unique barcodes make individual ballot mailpieces trackable.
asserted
mailpieces → make → ?
Electronic records allow election officials and USPS to determine whether a particular ballot mail entered and moved through the system.
asserted
mail → allow → system
None of those requirements determines voter eligibility or whether a ballot counts.
asserted
ballot → determine → eligibility
They regulate how a particular category of mail enters and moves through the federal postal system.
asserted
category → regulate → system
…and 5 more, not listed.
The Aporia
