Brett Kavanaugh, President Donald Trump’s “hero” Supreme Court justice, isn’t closing the door on the United States Postal Service (USPS) enacting Trump’s ballot-mail rules in the future, although he agreed with the majority that implementing them ahead of the 2026 midterm elections is too soon.
“In my view, based on the briefing the Court has received at this interim stage, there is at least a fair prospect that the final rule falls within the Postal Services statutory authority,” Kavanaugh wrote in his concurring opinion in United States Postal Service, et al. v. California, et al.
The concurrence comes roughly three months after Kavanaugh laid out a legal pathway for Trump to implement his executive order curtailing birthright citizenship in his concurrence in Trump v. Barbara. Kavanaugh also offered a blueprint for implementing Trump’s sweeping tariffs in his dissent in Learning Resources, Inc. v. Trump.
“I would note though that Justice Kavanaugh threw the government a lifeline by saying that he views it as likely that they do have the statutory authority. And I think if you read the dissent, you can see where Justices Thomas and Alito are on questions like that as well,” Jason Snead, executive director of Honest Elections Project, told Fox News Digital.
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The Supreme Court on Monday denied the Trump administrations emergency request to lift a lower court injunction blocking the U.S. Postal Service rule, ruling that the government was “unlikely to succeed on the merits” of its challenge.
The decision leaves the rule blocked for the 2026 midterms after ballots have already been sent. But as the litigation continues, the case could return to the Supreme Court.
“I think there’s a fair chance that it winds back up in front of the Supreme Court eventually,” Snead told Fox News Digital.
A dissent written by Justice Samuel Alito and joined by Justice Clarence Thomas also raised questions about whether the policy could ultimately survive the legal challenge and take effect before 2028
“I do think that as a practical matter, the rule is not going to be implemented in time for the midterms. I think that’s a done deal at this point. But I do hold out hope that there will be some additional litigation over this that could allow this rule to be implementing ahead of the 2028 presidential election,” Snead said.
The Postal Service rule requires federal ballot-mail envelopes to include an election-mail logo, be scannable by high-speed processing equipment, and carry a specialized barcode unique to each voter. States would also have to upload certain voter information to a Postal Service portal.
A coalition of 24 Democratic state attorneys general sued the Trump administration, alleging the rule violates the Constitution’s Elections Clause, which grants Congress the power to regulate elections. The Trump administration argued the USPS is regulating the mail, not election procedures.
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“So this case is still alive and well, and I think that Kavanaugh has given us all some hope that as it progresses eventually, this rule might be allowed to go into effect hopefully in time for the 2028 election since the left has successfully killed it for 2026,” Snead continued.
Iowa Solicitor General Eric Wessan also pointed to timing as a ma
