The Postal Service’s Mail-Ballot Rule: A Conversation with Justin Levitt

Law & Democracy returns for Season 3 with the biggest election law controversy of the 2026 midterms: the Postal Service's new mail-in ballot rules. The hosts sit down with Professor Justin Levitt of Loyola Law School in Los Angeles—a former Deputy Assistant Attorney General in the Justice Department's Civil Rights Division and former White House Senior Policy Advisor for Democracy and Voting Rights—to break down where the court fight stands and where it's headed. The rule, issued after President Trump's executive order in early 2026, would require a unique barcode on every mail-ballot envelope and bar the Postal Service from delivering ballots to anyone not on a state-submitted list of confirmed citizens uploaded to a federal portal that doesn't yet exist. A nationwide injunction has blocked it, and as the hosts record, the Supreme Court is weighing the administration's request to lift that block. Professor Levitt's prediction is unequivocal: the rule is "flatly illegal" and "wildly impractical," and he expects it to stay blocked through Election Day. He explains why—from a duty to carry the mail that predates the country itself, to Congress's sole authority over what the Postal Service may refuse to deliver, to the chaos the rule would unleash in vote-by-mail states like Oregon, Washington, and Utah when envelopes are already at the printers. Along the way, Levitt takes aim at the Supreme Court's shadow docket: "We pay the court not to decide. We pay them to explain. That's what law is." He traces how the Purcell principle has "metastasized" from a modest admonition into a Rorschach test for lower courts—one that has never been applied to federal government action—and picks apart the Solicitor General's argument that ballots can be regulated like cremated remains and fake explosives. He also offers a pointed read on the administration's motives: the rule may be worth more as a marketing device than as actual policy. The episode closes with Levitt's current projects—a piece on the 25th anniversary of Bush v. Gore, the mid-decade redistricting "Armageddon," election-related search warrants—and a book on what he calls the "social determinants of democracy": "If we don't work on the social determinants of democracy, I think that we are forever fighting the triage wars … without actually ever getting to some root causes." If you enjoy this episode, please give us a boost by liking it, subscribing, and sharing it with your friends. Have questions, thoughts, or comments on the episode? Drop a comment below or email us at [email protected]. Recorded on Tuesday, September 8, 2026.