Federal agencies say they have yet to take steps to implement President Donald Trump’s executive order restricting voting by mail, as the Department of Justice fights a Democrat-led lawsuit against it.

The Justice Department late Friday filed documents asking a federal judge to dismiss the lawsuit and to not block the executive order on a preliminary basis because the order hasn’t been implemented. The filings marked the Trump administration’s first effort to defend the order in court.

The March 31 order directs the creation of state citizenship lists and restricts how ballots can be sent through the mail, instructions that Democrats and election experts have called unconstitutional and illegal. It comes as Trump has seized on the specter of noncitizen voting, an extremely rare phenomenon, to demand sweeping voting restrictions.

In its Friday filing, the Justice Department sought to persuade Judge Carl J. Nichols in U.S. District Court in the District of Columbia that a legal challenge is premature.

“If and when the Executive Branch takes some action to implement the Executive Order” then a lawsuit can be brought, Stephen Pezzi, a senior trial counsel in the Justice Department’s Civil Division, wrote in a court filing.

Nichols has scheduled a hearing for May 14.

No action taken, officials tell court

The DOJ’s argument relies on statements by key federal officials that the agencies affected by the order — the Department of Homeland Security, the Social Security Administration and the U.S. Postal Service — are still deliberating over how to carry out Trump’s directive. In declarations filed in court on Friday, officials at all three agencies say final decisions haven’t been made.

“As the Postal Service is still in the deliberation phase of determining how to implement the Executive Order, we have not yet published a proposed rule, nor have we reached any final decisions about the substance of a proposed rule,” Steven Monteith, the Postal Service’s chief customer and marketing officer, wrote.

The executive order directs the postmaster general, who leads the Postal Service, to propose a rule that would block states from sending ballots through the mail except to voters on lists provided by the state to the Postal Service. 

The order also instructs Homeland Security to compile lists of voting-age U.S. citizens in each state with the help of the Social Security Administration. Democrats allege the Trump administration is building an unauthorized national voter list, despite the U.S. Constitution giving states the responsibility of running federal elections.

Michael Mayhew, deputy associate director of the Immigration Records and Identity Services Directorate within U.S. Citizenship and Immigration Services, wrote in a declaration that the agency “has not yet begun preparation” of state citizenship lists. USCIS is a subsidiary of Homeland Security.

At the Social Security Administration, Jessica Burns MacBride, head of program policy and data exchange, wrote that the agency hasn’t made any final decisions “about its role” in implementing the executive order.

Focus on Postal Service

The order’s opponents are especially watching the Postal Service’s response, since it is an independent corporation overseen by its Board of Governors — not the White House.

Democrats and experts on postal law say Trump has no authority to order the postmaster general to take any action. The Board of Governors hires and fires the postmaster general, and board members serve seven-year terms, helping insulate them from political pressure.

Last month, 37 Democratic U.S. senators signed a letter to Postmaster General David Steiner and the Board of Governors urging the Postal Service to not implement the executive order. The senators pointed out the president has no authority to regulate federal elections or the Postal Service.

“Like the President, the Postal Service has no authority to regulate the manner of voting in federal elections, nor who is eligible to vote by mail in such elections,” the letter says.

The Postal Service is a named defendant in the lawsuit filed by Democratic groups and leaders in Congress. 

The Justice Department, which is representing the Postal Service, sidestepped questions about the president’s authority in Friday’s court filing. It called arguments about Trump’s authority over the Postal Service an “abstract legal question” that can’t be resolved before the agency takes action.

Still, Monteith appeared to nod to concerns within the Postal Service over the order’s legality while avoiding specifics.

“I am aware that deliberations are currently ongoing within the Postal Service regarding the implementation of the Executive Order,” Monteith wrote, adding that the deliberations include “legal considerations” regarding the order.

Unitary executive theory

The executive order faces at least five lawsuits, including a challenge brought by a coalition of Democratic state attorneys general led by California’s Rob Bonta. The Justice Department has not yet filed court documents defending the order in that case.

For their part, Republican attorneys general — led by Catherine Hanaway of Missouri — are defending the executive order. Their position, if adopted by courts, would give Trump sweeping control over the Postal Service.

In a May 1 court filing, the GOP attorneys general argue those challenging the executive order are unlikely to succeed in showing that Trump cannot direct the Postal Service to propose a rule. They say that federal law doesn’t specifically prohibit the president from ordering the postmaster general to put forward rules on mail ballots — and it’s unconstitutional if it does.

“The Constitution vests the entirety of the executive power in the President,” The Republican coalition says, articulating a view commonly called the unitary executive theory: the idea that Congress cannot constitutionally create agencies that exist outside of White House control.

The Republican states involved also include Alabama, Florida, Indiana, Kansas, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota and Texas.

Democrats and many constitutional law experts reject the unitary executive theory, though it has gained support among Trump-aligned Republicans as the White House seeks greater control over independent agencies.

If the U.S. Supreme Court eventually greenlights Trump’s efforts to control the Postal Service and other independent agencies, it would mark a “tremendous” change in how the federal government operates, James Campbell Jr., an attorney in the Washington, D.C., area who consults on postal law, said in an interview last month.

“What you’re basically talking about is redesigning the U.S. government,” Campbell said.

President Donald Trump’s executive order on mail voting would shatter decades of U.S. Postal Service independence intended to shield it from partisan politics, postal experts and attorneys say.

Postal experts said Trump ordering the postmaster general to take any action — let alone on a matter as sensitive as elections — violates guardrails in federal law against presidential control of the mail. Multiple people with deep knowledge of Postal Service history said they couldn’t recall a similar order in the agency’s modern era.

“For the president to direct the postmaster general to do anything, including handling these ballots, is contrary to the statutes, contrary to law,” said James Campbell Jr., an attorney in the Washington, D.C., area who consults on postal law.

The order, signed March 31, attracted swift condemnation as an unconstitutional attempt by Trump to control state-run elections. If it stands, the directive would also represent a White House power grab over the Postal Service, which remains a key part of American life and business.

Trump’s order directs the postmaster general, who acts as the Postal Service’s CEO, to set out rules that would require states to notify the Postal Service if they intend to send ballots through the mail during federal elections. States that want to use the mail would be required to provide lists of mail voters to the Postal Service, which would be prohibited from delivering ballots to individuals not on a list.

A Board of Governors leads the Postal Service, and holds the power to hire and fire the postmaster general. No more than five of the nine governors may belong to the same political party. 

While presidents nominate the governors and the Senate confirms them, they serve seven-year terms. The length, in theory, insulates them from political pressure.

S. David Fineman, a Philadelphia attorney nominated to the Board of Governors by President Bill Clinton who served as its chairman from 2003 to 2005, said he had never heard of the White House or a president directing the postmaster general to take certain actions. He called the executive order highly unusual.

“The postmaster general serves at the pleasure of the board,” Fineman said.

The board currently has only four members, all appointed by President Joe Biden, and five vacancies. Trump has sent four nominations to the U.S. Senate this year. The Senate Homeland Security and Governmental Affairs Committee has not scheduled confirmation hearings for the nominees.

Cash-strapped service

Trump has expressed interest in having more control over the mail. 

Last year, he floated the possibility of merging the Postal Service with the Commerce Department, a move that would require approval by Congress. The Washington Post reported in February 2025 that Trump was expected to try to fire the Board of Governors and take control of the Postal Service.

The Trump administration takes a dim view of independent agencies. Many allies of the president subscribe to the unitary executive theory, the idea that the U.S. Constitution grants the president full power over the entirety of the executive branch — meaning Congress cannot constitutionally create agencies that exist outside of White House control.

Trump has moved to assert authority over a number of independent and quasi-independent agencies since taking office, most notably the Federal Reserve. The Department of Justice is investigating cost overruns on a Federal Reserve construction project, widely seen as a pretext to target Jerome Powell, the Federal Reserve chairman whose interest rate policy has angered Trump.

The Postal Service is under tremendous financial pressure — potentially making it more vulnerable to proposals to bring it under White House control. Mail volume peaked in 2006 at 213 billion pieces that year. The Postal Service today handles 109 billion pieces annually.

The current postmaster general, David Steiner, told a U.S. House committee last month that the Postal Service will run out of cash within a year without changes to its prices and operations. The Postal Service is generally funded through stamps and other forms of user revenue, not by tax dollars.

Steiner emphasized the independent nature of the Postal Service throughout his prepared testimony. He has laid out a number of options to improve the Postal Service’s financial stability, including changes to pension funding and raising its borrowing limit from $15 billion, a level that’s remained unchanged since 1992.

“It is important to remember that we face these challenges as a self-financed, independent establishment of the Executive Branch,” Steiner wrote.

Congress approved sweeping legislation in 1970 reorganizing the U.S. Post Office Department into the U.S. Postal Service, an independent corporation. Before that, the postmaster general was a Cabinet-level position nominated by the president and confirmed by the Senate.

Trump’s order marks “a dramatic shift away from the intent of the 1970 legislation to insulate the Postal Service from interference,” Joseph M. Adelman, a history professor at Framingham State University in Massachusetts who has researched mail history, said.

Election security

The White House didn’t directly answer States Newsroom’s questions about Trump’s views on the independence of the Postal Service or the legal justification for the executive order.

“Election integrity has always been a top priority for President Trump, and the American people sent him back to the White House because they overwhelmingly supported his commonsense election integrity agenda,” White House spokesperson Abigail Jackson said in a statement.

“The President will do everything in his power to lawfully defend the safety and security of American elections and to ensure that only American citizens are voting in them.”

Jackson also called on Congress to pass the SAVE America Act, which would require voters to prove their citizenship when registering. 

The Postal Service didn’t answer questions about how it plans to respond to the order. A USPS spokesperson said only that the Postal Service was reviewing it. 

Lawsuits

Steiner has indicated he’s awaiting a court decision on how to proceed. 

“If a court says that’s not what the law means, we’ll follow that,” Steiner told The New York Times after the executive order was signed. “And so from our perspective, we don’t get involved in policy or law, we just follow the law.”

The order on mail ballots faces at least five lawsuits. The Democratic National Committee, top Democrats in Congress and Democratic state officials have all sued. The legal challenges emphasize the Postal Service’s independence in federal law.

The lawsuit filed by the DNC, top Democratic lawmakers and other Democratic campaign groups, asserts the Postal Service is structured to operate independently of partisan politics. The complaint calls the Postal Service “indispensable” to voting by mail, noting that it delivered more than 222 million pieces of ballot mail in 2024, including nearly 100 million general election ballots.

A dozen Republican state attorneys general filed motions in court this week seeking to defend the executive order from the Democratic legal challenges. The motions call the order an example of cooperative federalism to provide states with optional resources to help protect their elections.

The GOP officials argue the Democrats lack standing to challenge the Postal Service provisions of the order and that their objections are premature because the Postal Service hasn’t finalized any new rules on mail ballots.

The order “simply directs” the Postal Service “to initiate rulemaking—it does not regulate the States directly and it does not directly inhibit anyone’s voting rights,” a court filing by the state attorneys general says.

The states involved in the Republican-led defense of the order include Alabama, Florida, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota and Texas.

Vote-by-mail 

Mail-in voting surged in 2020’s general election amid the COVID-19 pandemic, when 43% of voters cast their votes by mail. The percentage of voters mailing their ballots has fallen from that peak but remains above pre-pandemic levels. About 30% of voters cast mail ballots in 2024, according to data gathered by the U.S. Election Assistance Commission.

During the 2024 election, 584,463 mail ballots returned by voters were rejected by election officials — 1.2% of returned mail ballots. About 18% of those ballots were rejected because they didn’t arrive on time.

American Postal Workers Union President Jonathan Smith said in a statement that the Postal Service doesn’t block mailers from sending letters or refuse to deliver letters because of the identity of the sender. Postal workers take extraordinary measures to ensure ballots reach their destinations promptly and securely, he said.

“Postal workers take the sanctity of the mail seriously, and every process and policy of the Postal Service ensures that mail is accepted, processed, and delivered, no matter who sent it or where it is going,” Smith said.

On Monday, more than 100 U.S. House Democrats sent a letter to Trump demanding he refrain from future actions that undermine the Postal Service’s independence and calling on him to rescind the executive order. The letter says the order sets “a dangerous precedent for political interference” in postal service operations.

Senate Democrats followed up with a letter to Steiner and the USPS Board of Governors on Tuesday, urging the Postal Service to not implement the order. The letter, signed by 37 senators, including Minority Leader Chuck Schumer of New York, calls the Postal Service’s independence a “hallmark” of its operations.

“The Postal Service doesn’t care which politicians you may support,” Sen. Gary Peters, a Michigan Democrat, said on the Senate floor last week. “Its only priority is to deliver the mail to every community in the country.”

“The president is now trying to corrupt this mission,” Peters, the top Democrat on the Senate committee that oversees USPS, said. “If the president is successful in forcing the Postal Service to play a role in running elections, he will completely erode the trust of this storied institution.” 

A dozen Republican state attorneys general are moving to defend President Donald Trump’s executive order on mail ballots from legal challenges mounted by Democrats.

The GOP officials, led by Missouri Attorney General Catherine Hanaway, argued in multiple court filings Monday and Tuesday in response to Democratic lawsuits that the March 31 order provides states with “optional resources” to help secure their elections and doesn’t endanger voting rights.

The states “would like to access this resource so they may verify the accuracy of their own voter-registration lists. This flow of information between federal and state agencies is a common and critical feature of our federal system,” the Republican officials wrote in a court document.

The attorneys general of Alabama, Florida, Indiana, Kansas, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota and Texas joined Hanaway in the effort.

The order directs the postmaster general to put forward rules that would block the U.S. Postal Service from delivering ballots to or from voters not on lists of approved mail voters provided by states. Democrats and postal law experts have said the Postal Service has no authority over elections.

“The Constitution and multiple court rulings put it in stark terms: the President does not have the authority to issue an executive order that attempts to undermine the ability of states to run their own elections,” more than 100 U.S. House Democrats wrote in a letter to Trump on Monday.

Trump’s order also directs the Department of Homeland Security to compile lists of voting-age U.S. citizens in each state. Democrats allege the Trump administration is building an unauthorized national voter list, despite the U.S. Constitution giving states the responsibility of running federal elections.

The Democratic National Committee, top Democratic lawmakers and Democratic state attorneys general and secretaries of state have all sued to block the order, as have voting rights groups. The Republican state attorneys general are seeking to intervene in those lawsuits.

The GOP officials argue the Democrats lack standing to challenge the Postal Service provisions of the order and that their objections are premature because the Postal Service hasn’t finalized any new rules on mail ballots.

The order “simply directs” the Postal Service “to initiate rulemaking—it does not regulate the States directly and it does not directly inhibit anyone’s voting rights,” a court filing by the state attorneys general says.

The executive order marked Trump’s latest attempt to assert power over federal elections. A previous order that sought to require voters to prove their citizenship was blocked in court. Legislation to impose such a requirement is stalled in the U.S. Senate.

The Department of Justice has also sued 30 states and the District of Columbia for access to unredacted state voter lists containing sensitive personal information, including driver’s license and partial Social Security numbers. While federal courts have so far rebuffed those lawsuits, at least a dozen states have voluntarily turned over the data. 

DOJ plans to share the information with Homeland Security, which will use a computer program to look for possible noncitizen voters.

Reading Time: < 1 minute

The U.S. Postal Service adopted a rule effective Dec. 24 clarifying that some mail is not postmarked when it is first received – at a post office, for example – but rather on a later date, during processing.

The rule doesn’t change practices, but instead is “intended to improve public understanding of postmarks and their relationship to the date of mailing.”

Postmarking can affect whether local officials accept election ballots.

Fourteen states, including Illinois, accept a mailed ballot if it is received after Election Day, as long as it is postmarked on or before Election Day.

Thirty-six states, including Wisconsin, require absentee ballots, including those cast by mail, to be received by the local election office by Election Day. They aren’t affected by the rule change.

Manual postmarks can be requested at post offices.

The postal service has been reducing operations, increasing postmarking delays, the Brookings think tank reported.

This fact brief is responsive to conversations such as this one.

Sources

• Federal Register: Postmarks and Postal Possession
• National Conference of State Legislatures: Receipt and Postmark Deadlines for Absentee/Mail Ballots
• Brookings: When a postmark no longer tracks mailing
• Wisconsin Elections Commission: Vote Absentee By Mail
• Washington Post: Thousands of mail-in ballots could be discounted under new post office policy
• San Francisco Chronicle: USPS quietly changes how postmarks work — and it could affect mail-in ballots

Does the US Postal Service always postmark an election ballot on the day it is mailed? is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.