Jack and Bob discuss litigation over the Trump administration’s executive order on the Postal Service and election integrity, and the recent final rule that the Postal Service issued to implement the order. They explain what the Trump administration is seeking to accomplish with these maneuvers and examine the fate of two cases challenging the final rule that are pending in the District of Columbia and Massachusetts. They also analyze the practical difficulties in implementing the rule before the fall election, the role of federal criminal enforcement as a source of pressure on the states, and how the Purcell principle bears on litigation brought this close to an election.
Mentioned:
“Ensuring Citizenship Verification and Integrity in Federal Elections,” Executive Order 14399 (March 31, 2026)
“Ballot Mail For Federal Elections,” final rule, 91 Fed. Reg. 54966 (United States Postal Service, August 21, 2026)
“Trump v. California,” No. 26A124 (Supreme Court of the United States, August 24, 2026)
“California v. United States Postal Service,” No. 1:26-cv-13917 (D. Mass, complaint filed August 26, 2026)
“Supplemental complaint of the Democratic Party plaintiffs,” filed with an unopposed motion for leave, in DSCC v. Trump, No. 1:26-cv-01114 (D.D.C., August 25, 2026)
“Supplemental complaint of the LULAC plaintiffs,” filed with a consent motion for leave, in LULAC v. Executive Office of the President, No. 1:26-cv-01132 (D.D.C., August 25, 2026)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Good morning, Bob.
Bob Bauer: Good morning, Jack.
Today we’re going to discuss the Trump administration’s efforts to use the post office as leverage to impose executive branch standards on mail-in ballots and maybe some related requirements in connection with federal elections. You’re an expert on this, so please tell us what’s going on and how we should think about it.
Certainly. Let me give some background on the litigation currently in progress. Earlier this year, the administration issued, the president issued an executive order with three prongs to it. One, directing the Department of Homeland Security to develop a state citizenship list pursuant to a policy of attempting to identify non-citizens who would not be eligible to vote. Second, to prioritize law enforcement to protect against criminal violations of our voting laws. And third, to direct the postal service to initiate a rulemaking that would impose certain requirements on the transmission of ballots through the mails.
There were immediately lawsuits, a lawsuit in the District of Columbia, lawsuits in Massachusetts. They were brought by various parties, political parties, voting rights groups and 23 individual states, alleging that the executive order was unconstitutional and that any rulemaking of the kinds that the president was directing the postal service to develop would also be outside his legal authority. Injunctions were entered that found very specifically the executive order to be unconstitutional and that also enjoined the postal service from proceeding with a rulemaking of the kind specified in the executive order. And the Supreme Court ultimately heard this on the emergency docket and concluded that in fact, the case was not ripe for review. On standing and ripeness grounds, it concluded that it was not going to reach the merits of the matter. And it made a point of saying that it wasn’t expressing or implying an opinion on the merits. Two dissenting opinions filed, one by Justices Kagan and Sotomayor and the other by Justice Jackson.
On the Friday before the Monday that that opinion was issued, the United States Postal Service then issued a final rule and specified the kinds of requirements that it would impose as a condition for transmitting ballots through the mail. Now, with the final rule having been promulgated and with the Supreme Court having ruled, the challenges have been refiled. And there are cases currently pending by various parties, both in the District of Columbia and again, before the District Court in Massachusetts.
So that’s the state of play. And I want to talk a little bit about what’s next, but I’ll pause right there.
Before that, let me just ask you, so here’s what I understand the big 40,000-foot picture is. Basically, the Constitution gives Congress and the states the authority to regulate federal elections. And the executive branch is given no independent authority to regulate federal elections. And as I understand it, the Trump administration is trying to use its control over other things. And in this context, the post office, which is an executive branch agency, and it’s trying to leverage its power over the post office to weasel its way into regulating the federal election. Is that basically the 40,000-foot understanding of what’s going on here?
Yes. This is the second of the executive orders that he’s issued to, as the administration would put it, to ensure election integrity in the United States. Another one was previously issued in 2025, and you’re quite right. He is trying essentially, and I’ll put this carefully, by claiming that he’s merely exercising law enforcement authority. He is, so the challengers would say, and frankly, in my opinion, I think it’s true, looking to try to coerce the states, pressure the states, influence the states into adopting approaches to election administration and rulemaking policy that under the Constitution, he doesn’t have the authority to initiate directly.
Okay. Before we get to what you think of the likelihood of success for the plaintiffs in the litigation, what is the Trump administration’s goal here? I mean, they don’t like mail-in ballots. They think mail-in ballots hurt Republican candidates. They’re looking for advantages in the fall election. Is that it, or is it a broader disruptive goal, or is it both, or something else?
It’s a number of things. First of all, it’s a talking point. I think there is a wish on the part of the government to lay the foundation for claiming that any Democratic successes this fall are the product of a rigged election. We’ve heard the president say that Democrats don’t win unless they cheat, and he gave a national television address in which he said we have a corrupt and deeply flawed voting system that we can’t rely on. So they’re pushing that point in a variety of ways, including through taking executive actions of this nature. Secondly, we shouldn’t discount this is a personal preoccupation of his.
And thirdly, you’re quite right. One of the great concerns on the part of the challengers to these various administration initiatives is that it is going to foster voter confusion. There’ll be pressure on states to respond and uncertainty about what the rules will be. And as the court has said in other contexts, that kind of voter confusion can have an effect on the willingness or the comfort that voters have in participating in the electoral process.
But is the premise that the voter confusion will asymmetrically hurt the Democrats, is that the idea?
It will certainly undermine confidence in the election in the sense that he will claim later that it might have been rigged, whether or not he’s correct, that it will benefit his voters is very much open to dispute. As you know, many Republicans effectively tore their hair out over his attack on mail-in voting in 2020, and they believed it had the effect of depressing Republican turnout through the mails and adversely affecting his prospects in the election. So it may be here his personal whims or impulses or beliefs completely overcome the best political judgment he might have as the leader of his party.
Okay. So the Supreme Court said too early. The post office issued the final rule. We now have amended complaints and new complaints challenging the post office’s final rule as illegal. What do you think? Who’s going to win and how long is it going to take to get there?
One, I think it’s going to move very quickly. I think, in fact, I’m reasonably confident, but I obviously can’t predict that the U.S. Postal Service will be unable to impose these particular requirements as a condition for transmitting ballots to voters. It doesn’t have the authority to do that, in my view, and he doesn’t have the authority to direct them to do it. Whichever way you look at it, it’s illegal. And I’m quite confident that will fail. I’m less certain that some of the other attacks will necessarily succeed.
The government will argue that they’re assembling the so-called citizenship list internally for internal purposes. They’re not requiring the states to use it right now for any particular purpose. By the way, there’s an answer to that. We can discuss that and a deep concern about how these lists could be used. But that will certainly be their argument is that this is just for internal uses that need not concern the courts. Secondly, I think the administration is going to be able to successfully argue most likely that it can prioritize and always does prioritize law enforcement goals and that there’s nothing there that on the face of it poses any constitutional problem. There’s an answer to that, too, and challengers have made an argument against that. But I’m not sure those latter two are going to be nearly as vulnerable as I am certain the USPS rule will be.
Okay, so on the USPS rule, and the basic argument is that the executive branch just doesn’t have the authority under the relevant statutes, the post office statute and the constitution to issue a rule of the sort making these requirements?
That’s correct. To identify categories of a particular kind of mail and particularly election mail that it will only forward to voters or permit to be forwarded to voters if they meet certain specifications. If they’re on a list based on the final rule that’s recently been published, that list would control whether or not the postal service would agree to transmit these ballots. And there is, I don’t see any legal basis for it at all.
Independent of that, I don’t understand how these ballot requirements about the envelopes and the other requirements, I don’t see how they can be implemented in three months. Can you talk about that? How challenging is it? I mean, their state laws, I assume, have to be complied with before the state officials can change mailing ballot procedures. And even if it were lawful, and I agree with you based on what I understand, that it’s doubtful that the post office rules are lawful. I don’t understand how the states could possibly implement this in three months.
I don’t know how the executive branch could plausibly implement it or if it implemented it, anybody would have any confidence that the mechanisms for the development of this list and the review process by which it was determined whether these ballots could be mailed could ever justify any confidence, be free of error, which would, of course, be catastrophic to rush something into place that could cause any number of individuals to be unable to vote by mail as provided by their state’s laws.
And on the state side, there are enormous complications, including costs, facing election officials who have to prepare for elections on an extremely tight timetable. And many of them, incidentally, have printed ballots and spent money to do so. Some smaller jurisdictions use stocks of pre-printed ballots. It’s extraordinarily disruptive.
Yep. Well, that will take care of the standing and ripeness problems. There’s clearly injury in fact now. So anything else you want to say about the litigation? I mean, you mentioned that you thought the challenges on the other two issues were less likely to succeed, but there were concerns there. Can you talk about this?
Well, I’m less sure. Here is the fundamental problem. When the Supreme Court looked at the executive order, they decided to break each and every prong of that executive order that was under review into sort of separate buckets and analyze them separately. First came the state citizenship list. Then came the law enforcement prioritization. Then came the Postal Service proposed rulemaking, now final. What the challengers have said is you have to connect all of this.
The state citizenship list, of course, is one way that the federal government has begun, and it’s articulated this in various ways, has begun to tell the states, we’re watching you. And we are going to have our own view of who’s entitled to vote in these elections. And if you don’t agree with us, if you fundamentally are unwilling to cooperate with us in the management of your voter rolls to prevent illegal voting, we are going to resort to criminal prosecutions. It’s going to be hanging over your head. And I do think, by the way, that is the strategic thrust of these executive orders.
Now you can break out these pieces and justify each one of them on some legal theory, not the Postal Service prong, but the other two prongs. But the interrelationship of them, I think, is the only way to look at what the administration is trying to accomplish here and the disruptive effect and potential disruptive effect on voting that these executive orders and this last one in 2026 will have. But I do think the courts may break them out and the Postal Service rule will fail. I think the law enforcement prioritization prong will likely survive. Not sure about that. Because of the way the court is looking at it. And the same for the state citizenship list, where the government is going to be arguing, we’re just developing this. States can cooperate with us, not cooperate with us, but either way they can’t stop us from these internal preparatory steps that we’re taking to address our responsibilities to enforce the voting laws.
And could you just say a few more words about I take it that there’s a federal law the federal government is threatening to enforce that concerns facilitation of illegal voting in a federal election. Is that right? I mean, is there a federal criminal statute that covers that type of behavior such that this is another leverage point of the executive branch? They have the power to enforce criminal law to prosecute. So is there a law of that sort that they could potentially prosecute that’s lurking in the background? I take it there is.
Well, there’s one, most centrally—but there are other criminal laws that bear on the voting process—the federal prohibition on non-citizen voting in federal elections. And that’s a criminal prohibition. That’s correct.
Yeah. It strikes me that this is the big threat that the executive branch really has, because it’s very hard for courts to monitor and to certainly enjoin the executive branch from exercising prosecutorial discretion to investigate and enforce and prosecute under federal criminal laws. And that strikes me as a very powerful leverage point, independent of the election power, although it is enforcing election laws, that the executive branch has for disruption. Now, I take it that this power threatened before the election would be exercised after the election. And there may be, it may be groundless, of course, but it does seem like a serious federal power that a state official would be worried about. Is that fair?
Absolutely. I mean, this is an administration that has espoused very openly that the president controls the conduct of the Department of Justice. Essentially, it has to follow his dictates on any issue that he cares sufficiently about that he issues any such dictate. And so you have to worry about how the prosecutorial power will be used in aid of the president’s preoccupation with non-citizen voting, which he has said repeatedly is pervasive when all the data indicates that that is simply not true.
I also want to add the threat in advance is one of the various ways the administration is trying to leave its footprint all over these elections. That also has an effect right from now through election day. And I think this is one of the, one of the larger facets of this, the larger significance of this entire episode, which is what happens between now and election day. And you’re right, there are all sorts of things that could happen afterwards. But what happens between now and election day, if the administration continues to try to roil the electoral landscape, to create uncertainty, to raise questions about whether the voters should have confidence in the electoral process, what other steps, other executive orders, other administration official announcements might be made that could have a pretty dramatic impact on the electoral process. And there’s going to be a race into the courts. There’s already been a significant amount of litigation, not just on this particular issue. And that is also a powerful tool in the kit of a president who’s determined to wage war on an electoral process that he’s declared to be fundamentally corrupt and flawed.
Okay. And wrapping up, let’s go back to the litigation that’s happening now in the district court. You said it was going to go quickly. This raises a question. It’s late August now, the election is a little over three months away. There’s a principle in Supreme Court jurisprudence called the Purcell principle, which says that federal courts cannot intervene too close to an election if the intervention basically would cause confusion about what the rules are in the election. I worry that that principle is in theory going to operate here strongly to the government’s advantage, that I can just see it now that there’s going to be this challenge. The first thing the government’s going to say is, sorry, you can’t challenge this. It’s too close to the election and it would cause confusion. Now, this is something that happens. It’s an equitable doctrine. It tends to come up in the emergency relief, interim order relief context. What do you think about, how does your claim that this is going to go quickly intersect with the Purcell principle? What is your understanding of it?
In this case, the Supreme Court has very specifically stated that it understands that there’s a challenge to the merits of the USPS rules, just to focus on that for a second, but that it came to the court when it wasn’t ripe for decision when there were standing problems. I don’t think there’s any question that the court will hear this case and resolve it on the merits. Again, it will be on the shadow docket. It will be resolved on an emergency basis, but the court will address it. I’m not worried about the application of the Purcell doctrine, which in any event, I don’t think the Supreme Court views itself as being bound by. I think this is a lower federal court equitable doctrine.
I’m not worried about this particular case. I do think there are other circumstances in which there is activity by the executive branch, potentially by state legislatures, election officials with emergency rulemakings under various state laws that are going to raise the question of whether in fact there’s been an abuse of the electoral process that’s going to foster the kind of voter confusion that the court was concerned with in Purcell. The principle, granted, applies only to lower federal courts. The broader policy is one. The broader concern is one that should apply and should inform the claims that are going to be made against this kind of disruptive behavior. The lawsuits that will be filed will certainly rely on Purcell to say that this kind of effort to alter or reshape the rules close to the election has really significant costs and those claims are going to be cast in constitutional and other legal terms.
But who do you think is going to make the Purcell argument there?
Well, in those cases, again, I’m going to look at the administration’s sort of chaos-inducing strategies. If there’s another executive order, for example, or there are specific actions by DHS with the use of the citizenship list in what appears to be an attempt to affect the way elections are conducted in this cycle, I think that the arguments that are going to be made by challenging those actions are going to be informed by the view, this is way too close to the election to be permissible. It’s going to have a dramatic effect on voter understanding of the electoral process and on the incidence of participation. And I think that that’s what we have to be most concerned about as this litigation unfolds over the next few months.
Yep. So we don’t need to go down the Purcell path more. I just want to say, I think it’s clear that the doctrine on Purcell, again, without getting too much into it, is confused. They’ve suggested that the government can do something late, and any confusion caused by that is not implicated by the Purcell principle, because the Purcell principle is about federal court intervention and about understanding how the equities get balanced. So again, I’m not disagreeing with you necessarily. I’m just saying I think that Purcell is going to play an important role over the next couple of weeks in figuring out whether the lower courts and the Supreme Court are going to halt this rule and which parts of it.
I want to just clarify one point. I absolutely recognize Purcell applies to lower federal court interventions. But when I say the policy behind Purcell, the court talks, and I’m literally quoting from it, about considerations of this nature that are unique to the electoral context. And those considerations, by the way, also shaped a recent court decision about candidates’ standing to challenge election rules in a case called Bost v. Illinois. So the court is aware that the election context is a unique one for the evaluation of interventions in the electoral process that have the effect of altering rules close to the election. And that would apply, it seems to me, logically to interventions by others than just lower federal district courts, although granted, as I said, I think that would inform rather than shape the kinds of claims that would be made in response to those kinds of late minute or last minute interventions.
Yeah, I’ll give you the last word on that. Thanks, Bob.
Thank you, Jack.
