The President’s Illegal Executive Order on Mail Voting

Last week, President Trump issued a new executive order that aims to illegally rewrite the rules for federal elections. The principal thrust of the order is to charge the U.S. Postal Service (USPS) with determining who may vote by mail and instructs it to refuse to deliver ballots sent by anyone not included on newly created federal mail voter lists. It threatens criminal penalties for election officials, mail carriers, and others who send ballots to or deliver ballots from individuals the administration deems ineligible. Perhaps to facilitate this usurpation of state and federal laws governing mail voting, it also orders the Department of Homeland Security (DHS) to compile lists of voting-age U.S. citizens in every state, using incomplete and unreliable federal data sources.

If implemented, the executive order would inject chaos into our elections, block eligible American citizens from voting, undermine voter privacy, and expose election officials and others to criminal prosecution simply for doing their jobs.

The Brennan Center and other groups are challenging the executive order in court, just as they challenged the previous executive order on elections that Trump issued in March 2025. Other nonpartisan, partisan, and state government entities have also filed suit. Both the 2025 and 2026 orders are unlawful principally because the president lacks any authority to run elections. The Constitution gives only states and Congress the power to set election rules.

Multiple federal courts have blocked the key parts of the March 2025 anti-voting order. (The administration has appealed those rulings.) The provisions of the new executive order and their potential impact are detailed below.

Flawed “State Citizenship Lists”

The latest executive order directs DHS to coordinate with the commissioner of the Social Security Administration to create a list of voting-age American citizens in each state. These so-called “state citizenship lists” would include individuals who are over the age of 18, “confirmed to be United States citizens,” and who “maintain a residence” in the state. The federal government does not currently maintain a list of all U.S. citizens, let alone lists of citizens in each state, and there is no federal law that authorizes it to do so. Various federal privacy and information security laws have prevented the creation of such lists.

Per the order, the new “state citizenship lists” would not be compiled using existing state voter registration lists or any other state data but rather a variety of federal databases that have been created for other purposes. However, the federal government’s information on citizenship is incomplete and sometimes inaccurate, meaning American citizens could be left off DHS’s lists. If those lists are used to determine voter eligibility, anyone excluded could potentially be disenfranchised.

For example, one source the executive order claims should be used for citizenship verification is the Systematic Alien Verification for Entitlements, or “SAVE,” program. But this program was created to determine immigrants’ eligibility for various government benefits, not as a comprehensive list of U.S. citizens. Even with those additions, recent attempts by DHS to use this data to identify noncitizens on states’ voter rolls demonstrate that the SAVE program frequently mistakenly flags Americans as potential noncitizens, with a very high error rate. Moreover, none of the datasets that the order lists are designed to determine whether a person “maintains a residence” in a given state.

This provision raises other questions and concerns as well. The order requires DHS to share these lists with the states at least 60 days before each election but does not indicate what states are meant to do with them. The 60-day rule also means the lists would, by default, exclude individuals who are not 18 at the time of the list’s creation but reach voting age at the time of an election. It would also exclude individuals who gain U.S. citizenship during this period, as well as many Americans living abroad.

While the order directs DHS to allow individuals to review and correct their information on these lists, there are no provisions to ensure that affected individuals would be made aware of this process or that any corrections would be done in time to enable them to vote.

Criminal Liability for Election Officials and Others

The order directs the U.S. attorney general to prioritize investigating and prosecuting state and local election officials who issue federal ballots to ineligible voters, without regard for criminal intent or whether those ineligible individuals actually cast the ballots. Because this directive immediately follows the order’s section establishing “state citizenship lists,” it appears to suggest that election officials who issue ballots to individuals not on the faulty lists created by DHS will be treated as criminals. This implied threat comes at a time when the Justice Department has launched multiple criminal investigations against election offices based on conspiracy theories.

Similarly, the order directs the DOJ to prioritize investigating and prosecuting other individuals and entities involved in “the printing, production, shipment, or distribution of ballots” to ineligible individuals. This appears to sweep in election administration vendors, postal workers, and civic volunteers who help individuals submit their ballots. It is difficult to imagine how any of these potential targets would even know a voter’s eligibility, let alone have the criminal intent to help them vote while ineligible, suggesting that their liability would be based entirely on whether a voter was not on DHS’s state citizenship lists.

In addition, the order purports to require states and localities to preserve all election records (except ballots) for five years. Federal election law requires election records to be kept for only 22 months.

USPS Ballot Redesign

The order directs USPS to issue regulations specifying how states should design mail ballot envelopes. USPS does not have, and has never before claimed to have, any authority over state ballot design choices. Nor does it have the expertise to design ballots. The only election-related services it offers to states, apart from regular mail delivery, are voluntary expedited mailing and tracking services. The president likewise has no authority over ballot design or any other aspect of election rules, nor can he direct the actions of the Postal Service, which is an independent agency.

“Voluntary” State Lists of Mail and Absentee Voters

The order says states can “choose” to notify USPS at least 90 days before any federal election about whether they plan to allow voters to use mail or absentee ballots. If so, it says they “should” notify USPS about whether they intend to provide a list of eligible voters who are allowed to vote by mail or absentee ballot within 60 days of the election. There is no law that requires states to provide USPS any notifications or lists related to voting or that authorizes USPS to require such lists.

The 60-day deadline for submitting these lists is out of step with other election deadlines set by federal and state law. The Constitution prohibits state voter registration deadlines to be more than 30 days before an election, and in most states, that window is considerably shorter. In every state, the deadline to request absentee ballots is far shorter than 60 days, with most making the cutoff two weeks or fewer before an election.

While the president seems to acknowledge that he cannot order the states to create these lists and has made these notifications voluntary, other provisions of the order suggest that states that don’t provide mail and absentee voting lists to USPS may put their citizens’ right to vote by mail at risk.

USPS Discretion Over Casting Mail and Absentee Ballots

The order directs USPS to create a third set of lists for each state — “mail-in and absentee participation lists” — and to refuse to deliver ballots cast by anyone who isn’t on them. It’s entirely unclear how USPS would determine who should be on these lists. It seems that the order means for USPS to use DHS’s “state citizenship lists” to cull the mail voter lists that states provide, though that is left unsaid. What is clear is that it intends for USPS not to deliver the ballots of otherwise eligible voters who are not on the agency’s new “mail-in and absentee participation lists,” even though multiple federal laws prohibit USPS from selectively refusing to deliver mail.

Taken together, these provisions make clear that the president is attempting to seize the power to regulate mail voting from the states and Congress and use USPS to determine who gets to vote by mail and who does not. USPS has no legal authority to make such determinations.

If implemented, this system would block eligible American citizens from voting. Some might argue that these changes apply only to mail voting, and that voters who are denied that option could simply use another method. This assumption overlooks several practical problems, including that voting by mail is the only option for some people, such as those with disabilities.

First, nothing in the order would require USPS to notify voters if they aren’t on the agency’s approved list and their mail ballot is therefore never delivered to a local election office. Without such notice, many voters would have no idea their vote was not counted. Even if USPS did provide notice, many affected individuals might not have the time or the means to correct the issue or switch to another voting method. For instance, elderly, disabled, and overseas Americans who rely on mail voting may face significant barriers to voting in person or through alternative means, especially on short notice.

The order’s implications extend further. As noted above, it suggests that USPS would need to refuse to deliver all mail ballots from residents of any state that either declines to share its list of approved mail and absentee voters or fails to adopt USPS’s mandated ballot design changes. This would magnify existing concerns about transparency, timing, and access to the ballot on a statewide scale. Add to that the fact that the agency tasked with implementing the painstaking process of comparing every mailed ballot to these voter lists is running out of money, and it creates a recipe for disenfranchisement and utter chaos in our elections.

There are also significant privacy concerns associated with passing these various voter lists — which may include sensitive personal information — back and forth between states and federal agencies.

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The new executive order on elections flatly violates the Constitution and federal law. Only states and Congress may set the rules for federal elections. The Constitution’s Elections Clause says that the rules for running federal elections “shall be prescribed in each State by the Legislature thereof” except that “Congress may at any time by Law make or alter such Regulations.” Multiple federal courts have blocked provisions of Trump’s March 2025 order seeking to rewrite election rules for that exact reason.

The order also violates the U.S. Constitution and federal statutes by attempting to direct the actions and policy determinations of USPS, which is an independent agency. In fact, the Constitution specifically reserves to Congress authority over the USPS. When the president attempted to issue a command to the Election Assistance Commission, another independent federal agency, in his 2025 anti-voting order, a federal court ruled, “That command exceeds the President’s authority.” The same is true here.