Trump Administration Continues Attacks on Absentee-by-mail Voting

President Trump has attacked the assumption that states can authorize absentee voting by mail, with ballots returned after Election Day. President Trump claims that such voting is subject to a high degree of voter fraud. In New York State, this is called “Early Voting by Mail.”

Such voting is popular with voters temporarily located outside the US, such as military and foreign service staff as well as college students living on campuses far from their parents’ homes. The current robust system of absentee voting effectively gives each college student the choice to register to vote at a parent’s house or to vote using a dorm address in a college town.

Under current state laws, the Board of Elections mails ballots to people with a standing request as soon as they are available, or as soon as a request can be processed. They use the United States Postal Service (USPS) to send the ballots to the requested address based upon the voter stating his address on record in the Registered Voter List (RVL).

Ballots can be returned via drop box or the USPS. Ballots must be postmarked by election day and received by a specified date after election day. New York State Election Law Section 8-710 allows election officials to set a date, not later than seven days after election day, as the deadline for receiving early voting by mail ballots. Any ballot received after that deadline will not be counted.

There are two areas where President Trump is challenging state election procedures: the deadline and federal control over the sending of absentee ballots. Remember that these matters are generally set by state election laws for both state and federal offices. In both areas, President Trump’s actions raise the question of when the Constitution limits the states’ conduct of elections.

Date of Receipt

In March 2025, Trump issued an executive order requiring documentary proof of citizenship for individuals registering via a federal voter registration form and mandating that absentee/mail-in ballots be received by Election Day. Both of those provisions have been blocked by federal court rulings, though the U.S. Department of Justice has appealed the decisions.

Twenty-nine states allow ballots to be received after Election Day. The Supreme Court heard arguments on March 23 in Watson v. Republican National Committee, a case challenging the Mississippi law that gives voters five days after election day to return their ballots. Advocates for native american voters have argued that this additional time is necessary to protect their voting rights. On June 29, a five-to-four majority of the court upheld the Mississippi law allowing the late counting. An opinion written by Justice Amy Coney Barrett held, “The federal election-day statutes do not prevent Mississippi from counting absentee ballots postmarked by election day but received up to five days thereafter.” “Nothing in the federal election-day statutes requires ballots to be received by election day.” The opinion emphasized that this is not a Constitutional question. Although Congress has certain prescribed powers in setting election details for federal office, it has left it to the states to set the deadline for receiving ballots. Justice Barrett wrote, “At bottom, plaintiffs’ theory is that because we are governed by 19th-century election-day laws, we are also governed by 19th-century voting practices.”

Justice Alito, writing for Justices Thomas, Gorsuch, and Kavanaugh, dissented: 

“[T]oday’s decision leaves open opportunities for voter fraud that may further undermine Americans’ faith in the integrity of this country’s elections. Diverse sources have recognized that mail-in ballots increase the potential for fraud.”

Federal Control over Mailing Lists

On March 31, 2026, Trump signed a second executive order requiring states to submit a copy of the list of mail-in voters to DHS. DHS and Social Security will then edit this list. The election officials will send out absentee ballot envelopes with unique Intelligent Mail barcodes that facilitate tracking. Each exterior envelope will be marked “Official Election Mail.” USPS will be instructed not to deliver such envelopes if the recipient is not on the list. So, it is possible that the state’s scrubbing of its RVL will not match the results of the federal government scrubbing the same list. For example, it might be possible that the federal government believes that a voter has died while the state and local election officials believe that the same voter is alive. In such cases, the executive order will authorize DHS to direct USPS not to deliver the absentee ballot to the disputed voter.

Trump took these steps after the Senate failed to enact the SAVE America Act.

Several lawsuits have been filed to challenge this executive order. On May 28, one federal district court judge in Washington, D.C., refused to enjoin the implementation of the executive order. On June 2, a federal district court judge in Boston heard arguments on whether to enjoin the executive order pending full litigation of the matter.

Critics fear that the duplicative federal and state compilation of voting lists will cause chaos and confusion. To avoid any problems with absentee voting, voting advocates suggest requesting absentee ballots early in the election cycle and returning those ballots well before election day, November 2.

The federal government moved to dismiss the Massachusetts lawsuit as premature because an Executive Order is not a final government action. On June 18, the District Court denied the government’s motion to dismiss with respect to the 2026 midterm elections. So, the case is going forward regarding its applicability to 2026.

Postal Service Proposed Rule

On June 2, the USPS published a proposed rule in the Federal Register with public comments due on July 2. The new rule would mandate a specific Election Mail logo for both the envelopes used to send ballots to voters and the return envelopes voters use to send ballots back to election officials. Each envelope would also have a unique bar code that could trace the envelope back to a specific voter.

Election mailings will have to conform to new regulations and be submitted at specially designated post offices capable of processing large commercial mailings. The USPS will prohibit mail to people that the federal government believes are ineligible to vote. This new system would apply to elections in which the President, Vice President, House of Representatives, or U.S. Senate is on the ballot. However, it would not apply to primary elections or ballots sent overseas, which are subject to a separate statute. Although the USPS is an independent agency that is supposed to be non-partisan, the proposed rule follows President Trump’s executive order very closely.

Critics argue that the bar coding and the ability of the USPS to seize specific envelopes raises the prospect that the USPS could favor one political party over another by hindering vote-by-mail involving members of one party over the other. Although each locality is sending out absentee ballots across the country, the USPS will know which envelopes involve communities that are highly red or highly blue. In states that allow voters to register by party, the USPS will, in many cases, know which specific envelopes have a barcode for a registered Republican or Democrat. The USPS is not required to notify the voter that his ballot was seized.

David Steiner, U.S. Postmaster General, testified before the Senate Homeland Security and Governmental Affairs Committee about the proposed rule. “To me, it’s not a political question; it’s a question of how do we most efficiently and securely move ballots. We’ve been recommending this for many years; all this does is make it a requirement.”

Although any such specific targeting sounds far-fetched, it is precisely the type of problem that Alexander Hamilton discussed in Federalist Paper No. 60.