Supreme Court allows executive order limiting mail-in ballots to move forward

Key Takeaways

On August 24, the Supreme Court voted 6-3 to lift a block on the president’s Executive Order (EO) 14399, which looks to verify citizenship of voters and tighten mail-in ballot procedures ahead of the November elections. This Supreme Court decision overturns a lower court ruling from June which blocked the federal government from enforcing Sections 2 and 3 of the EO following a lawsuit from 23 states and the District of Columbia, who claimed the directives unlawfully interfere with their election systems.

The EO directed the U.S. Department of Homeland Security (DHS) to compile a list of confirmed U.S. citizens that states should use to verify citizenship during voter registration and ordered the U.S. Postal Service (USPS) to propose a rule imposing more restrictions on mail-in voting, including requiring states to use official election mail envelopes with intelligent barcodes, provide advance 90-day notice of their intent to use mail-in voting and submit a list of eligible mail-in voters 60 days before an election. The EO threatens to withhold federal funds to states that don’t comply with these provisions. 

Read more about Executive Order 14399

In its ruling, the Supreme Court decided the states had no standing to sue, citing that Sections 2 and 3 are internal directives for the federal government, not immediate directives for state action. Specifically, the Supreme Court ruled that Section 3 is a directive to engage in rulemaking, not a final itself, and noted that if a later final rule by USPS unlawfully overhauls existing states election procedures, states may challenge that rule.  

A separate nationwide injunction by a lower court still stands, which blocks USPS from enforcing any federal rule that complies with Section 3 of the EO and would affect the November elections.

On Friday August 21, USPS released its final rule that complies with the directives in the EO with the caveat that it won’t implement the rule for the 2026 election unless the court lifts both injunctions.

What Does This Mean for Counties?

Counties play an essential role in administering federal, state and local elections, and county officials rely on reliable funding and clear directives from the federal government to carry out successful and secure elections. 

In light of this Supreme Court decision, counties should take the following actions: 

• Don’t change any mail-in ballot procedures yet: The USPS injunction is still active, so nothing about how ballots are mailed, tracked or verified is currently required to change yet for the November election. 
• Watch the First Circuit Court of Appeals closely: Counties should closely monitor any changes to the court’s injunction on USPS, Section 3 of the EO. 
• Prepare for DHS citizenship list activity to resume: States may start receiving citizenship lists from DHS to use for citizenship verification. Counties should stay in contact with their state election office and/or Secretary of State’s office for direction on implementation.

Stay engaged with NACo for future updates on the case and what it means for county election administration.