Kavanaugh Offers Trump Path to Mail Ballot Rules for 2028 After Supreme Court Blocks Midterm Implementation

Justice Brett Kavanaugh has handed the Trump administration a potential lifeline on mail ballot integrity rules, signaling that the U.S. Postal Service (USPS) may still enact the president's election security measures in time for the 2028 presidential election, even as the Supreme Court blocked their implementation for the 2026 midterms.

In a concurring opinion in United States Postal Service, et al. v. California, et al., Kavanaugh wrote that there is “at least a fair prospect that the final rule falls within the Postal Service's statutory authority.” His words offer hope to conservatives who see the rule as a critical step toward securing mail-in voting.

What Did the Supreme Court Decide?

The Supreme Court on Monday denied the Trump administration's emergency request to lift a lower court injunction blocking the USPS rule, ruling that the government was “unlikely to succeed on the merits” of its challenge. The decision leaves the rule sidelined for the 2026 midterms, as ballots have already been sent to voters in many states.

Justice Samuel Alito, joined by Justice Clarence Thomas, dissented, arguing that the government had made the necessary showing for a stay. Alito also questioned whether some plaintiffs had standing, describing their arguments as a “Hail Mary pass” that the Supreme Court has previously said “rarely succeeds.”

Why Kavanaugh's Concurrence Matters for Iowa

Iowa Solicitor General Eric Wessan pointed to timing as a major factor in the Court's decision, noting that earlier litigation and an injunction in Massachusetts delayed the Postal Service's ability to publish the final rule.

“So I'm not surprised now, close to the deadline when ballots have to go out to people that the Supreme Court took the approach of maintaining the status quo, although I think that Justice Alito's dissent highlights a lot of issues with the approach taken by the majority, and I would not be sure that the same result would be what the Supreme Court reaches in advance of, for example, the 2028 election,” Wessan said.

Wessan also noted that the president's executive order was issued five months ago, and the injunction followed shortly after. “As the Supreme Court recognized in the litigation earlier, that injunction against the executive order was improper,” he said.

What Does the USPS Rule Require?

The Postal Service rule would require federal ballot-mail envelopes to include an election-mail logo, be scannable by high-speed processing equipment, and carry a specialized barcode unique to each voter. States would also have to upload certain voter information to a Postal Service portal.

Jason Snead, executive director of the Honest Elections Project, explained the practical impact: “We're talking about taking best practices about mail ballot envelope design that have been long-standing and making that mandatory guidance.”

“And we're also talking about getting lists of eligible mail voters that states already have so that the Postal Service can essentially create manifests and that will allow them to know who they're sending ballots to, and it will allow those ballots to be tracked. So this is a very basic, very simple thing,” Snead added.

Legal Challenge from Democratic States

A coalition of 24 Democratic state attorneys general sued the Trump administration, alleging the rule violates the Constitution's Elections Clause, which grants Congress the power to regulate elections. The Trump administration argued the USPS is regulating the mail, not election procedures.

Snead argued that without a looming election, Democratic states may have a tougher time fighting the rules in future litigation.

“So they're going to have a difficult time and a steeper hill to climb if they're trying to explain in 2027, for instance, why they can't possibly comply with basic rules like this over a two-year time frame,” Snead said.

What Happens Next?

The case remains alive as litigation continues, and it could return to the Supreme Court. Snead said he expects the rule to be implemented before the 2028 presidential election.

“I do think that as a practical matter, the rule is not going to be implemented in time for the midterms. I think that's a done deal at this point. But I do hold out hope that there will be some additional litigation over this that could allow this rule to be implementing ahead of the 2028 presidential election,” Snead said.

Wessan echoed that sentiment, saying, “This rule won't be in effect for the 2026 election, but it very well may end up in effect for the 2028 election, and this is just one of many actions the administration is taking to help with voter integrity.”

Will the Rule Survive Legal Scrutiny?

Abhishek Kambil, a legal observer, noted that the majority's lack of explanation was surprising, especially given Alito's detailed dissent. “So, I think the biggest thing that surprised me was the lack of explanation, especially given Justice Alito had a pretty methodical dissent explaining all the ways the majority got wrong, and we don't know exactly how the majority decided to deny the stay,” Kambil said.

Despite the setback, conservatives remain optimistic. Snead pointed to Kavanaugh's concurrence as a sign that the rule could ultimately be upheld. “So this case is still alive and well, and I think that Kavanaugh has given us all some hope that as it progresses eventually, this rule might be allowed to go into effect hopefully in time for the 2028 election since the left has successfully killed it for 2026,” he said.

FAQ: Mail Ballot Rules and the Supreme Court

What is the USPS mail ballot rule?

The rule requires federal ballot-mail envelopes to include an election-mail logo, be scannable by high-speed processing equipment, and carry a specialized barcode unique to each voter. States would also have to upload certain voter information to a Postal Service portal.

Why did the Supreme Court block the rule for the 2026 midterms?

The Court ruled that the government was “unlikely to succeed on the merits” of its challenge, and the timing was too close to the election, as ballots have already been sent in many states.

Could the rule take effect for the 2028 election?

Yes. Justice Kavanaugh's concurrence suggests the rule may fall within the Postal Service's statutory authority, and the case could return to the Supreme Court before 2028.

What did Iowa Solicitor General Eric Wessan say?

Wessan said the rule won't be in effect for 2026 but very well may be for 2028, and he highlighted that the administration is taking multiple actions to help with voter integrity.