Justices Samuel Alito and Clarence Thomas issued a sharp dissent on Monday from the rest of the Supreme Court’s decision to keep a new set of USPS mail-in ballot rules blocked, warning that the majority of the high court is “incorrectly” affirming a “Hail Mary” bid to halt the new policy ahead of the midterm elections.
The Supreme Court majority ruled 7-2 in an unsigned order to deny the Trump administration’s bid to lift a pair of blocks on a new USPS rule that would require mail-in ballots to bear Election Mail markings and be sent in automation-compatible envelopes with unique Intelligent Mail barcodes. The rule would also require election officials to submit eligible voters’ names, addresses, and corresponding barcode information through a federal portal.
The majority did not offer a rationale for their ruling, other than saying they believed the Justice Department did not show a likelihood of success on the merits. Justice Brett Kavanaugh offered a concurring opinion, while Alito wrote an eight-page dissent, joined by Thomas, arguing that the lower court’s block should have been lifted.
Kavanaugh explained in his concurring opinion that while there is “at least a fair prospect” the USPS rule falls within the Postal Service’s powers, the closeness of the legal challenge to the midterm elections led him to deny the petition because “state and local election officials do not have sufficient time to reasonably implement the rule before the elections.”
Alito found that several of the organizations suing over the mail-in ballot rule lacked standing, finding their rationale, which he said was “based on injuries to unnamed members who never filed declarations themselves,” should be insufficient to block the rule. Alito argued that the coalition of Democratic states that sued over the rule failed to show that the rule exceeded the USPS’s ability to regulate mail.
“That Hail Mary pass is unlikely to be successfully completed here. The Postal Service has broad authority to regulate the mail,” Alito wrote in his dissent. “It holds the ‘general powers’ to ‘adopt, amend, and repeal such rules and regulations, not inconsistent with this title, as may be necessary in the execution of its functions under this title and such other functions as may be assigned to [it] under any provisions of law outside of this title.’ Through this provision, Congress has ‘broadly empowered [the Postal Service] to adopt rules and regulations.’”
Alito said that while he takes the problem of having to implement the law so soon before the 2026 election “very seriously,” it is “not enough to convince me to deny the application.” He then explained how the Democratic states delayed the ability for the Postal Service to make the rule by challenging the initial executive order instructing the USPS to look into mail-in ballot rulemaking earlier this year.
SUPREME COURT DENIES TRUMP’S EMERGENCY REQUEST TO ENFORCE MAIL-IN BALLOT RESTRICTIONS
“The plaintiff States cannot claim the timing of the rule tilts the equities in their favor when they, and courts hearing their claims, are responsible for so much of the delay,” Alito wrote. “For these reasons, I would grant the Government’s application and respectfully dissent from the Court’s denial.”
The ruling stops the Trump administration from enacting the USPS rule before the midterm elections, but as litigation continues through lower federal courts, it could still be enacted by the 2028 election if the administration prevails in appellate courts, including the Supreme Court.