Michigan Election Watch | Part 2
Voting-rights attorney Marc Elias warns that uncertainty surrounding new federal mail-ballot rules could fuel challenges after the Nov. 3 election. Michigan law makes overturning certified results difficult — and voters have options if they’re concerned about relying on the mail.
WASHINGTON DC – What happens if a Michigan election is decided by 5,000 votes — but thousands more voters claim they didn’t receive absentee ballots on time?
That’s where the controversy surrounding the U.S. Postal Service’s new ballot-mail requirements moves beyond mail delivery and into election law.
As MITechNews reported in Part 1, a federal whistleblower alleges USPS has developed a zero-tolerance verification system under which one failed barcode among hundreds sampled could cause an entire batch of outbound absentee ballots to be rejected and returned to election officials for correction.
The controversial requirements are currently blocked in federal court.
USPS also confirmed Tuesday that it is not currently performing the disputed verification procedures while the court order remains in place.
But the Trump administration is fighting to reinstate the rule before the Nov. 3 midterm election.
That raises another question:
What happens if problems involving absentee ballots occur in a Michigan election decided by only a few thousand votes?
Elias: Confusion Could Become Part Of The Battle
Voting-rights attorney Marc Elias, founder of Democracy Docket and a prominent Democratic election lawyer, warned Tuesday on MS NOW that uncertainty surrounding federal election procedures could become part of the battle over election results.
Elias argues that disputes over voter eligibility, absentee ballots and federal voting requirements could provide ammunition for litigation following close elections.
His broader argument is that the confusion itself could become politically and legally useful when candidates challenge election results.
That needs an important qualification.
Elias’s contention that creating confusion is part of President Donald Trump’s strategy is his interpretation of the administration’s actions — not an established fact about Trump’s motives.
But the possibility of litigation following a serious ballot disruption isn’t difficult to imagine.
Consider a hypothetical Michigan statewide race decided by 5,000 votes.
Now suppose evidence showed that 15,000 voters experienced significant delays receiving absentee ballots because one or more large USPS mailings were rejected.
That would not automatically invalidate the election.
But it could almost certainly become an issue in lawsuits over whether voters were disenfranchised and whether the problems were significant enough to affect the outcome.
Michigan’s recent history demonstrates why the numbers matter.
Trump carried Michigan in 2016 by only 10,704 votes.
Democrat Elissa Slotkin defeated Republican Mike Rogers for U.S. Senate in 2024 by just 19,006 votes.
Michigan elections can be that close.
MICHIGAN VOTERS HAVE OPTIONS
Vote absentee. Michigan voters continue to have the right to vote by absentee ballot.
Don’t wait until the last minute. Voters who plan to use an absentee ballot can request and return it well ahead of Election Day.
Return the ballot personally. A completed absentee ballot can be returned through methods authorized by Michigan law, including directly to the voter’s local clerk or an authorized ballot drop box.
Vote early in person. Michigan provides early in-person voting before Election Day.
Vote on Election Day. Voters can still cast ballots at their assigned polling location.
Track an absentee ballot. Michigan voters can check their voter information and absentee-ballot status through the state’s voter-information system.
Voters should check current instructions from the Michigan Secretary of State or their local election clerk because procedures and deadlines matter.
Didn’t The Supreme Court Already Decide This?
This is one of the most confusing parts of the controversy.
The Supreme Court has already intervened once.
But it did not rule that the final USPS ballot requirements are legal.
On Aug. 24, the Supreme Court lifted an earlier injunction involving Trump’s executive order.
A central problem for Michigan and the other states was timing.
When they originally went to court, Trump had directed USPS to develop new election-mail requirements, but the Postal Service had not yet issued its final rule.
The Supreme Court concluded that the states likely lacked standing to challenge something USPS hadn’t actually done yet.
But the Court left an important door open.
If USPS eventually adopted a final rule that harmed the states, the states could challenge that rule.
That’s essentially what has happened.
Now There Is A Final USPS Rule
USPS issued its final requirements Aug. 26.
Michigan and 24 other states immediately sued again — this time challenging an actual Postal Service regulation rather than Trump’s instruction that USPS develop one.
That changes the legal landscape.
U.S. District Judge Indira Talwani issued a temporary restraining order Aug. 27 blocking core portions of the rule.
The order prevents USPS from making several new requirements mandatory for this year’s federal election, including provisions involving the Federal Ballot Mail Portal and the ability to refuse affected ballot mailings.
Talwani concluded that the states were likely to succeed in arguing that USPS had exceeded its authority and improperly interfered with states’ constitutional responsibility for administering elections.
The Trump administration strongly disagrees.
Justice Department lawyers have called Talwani’s ruling “gravely mistaken” and argue that the USPS changes are legitimate improvements to the Postal Service infrastructure used to handle election mail.
That dispute is now before the 1st U.S. Circuit Court of Appeals.
Could The Supreme Court Get The Case Again?
Yes.
The Trump administration has asked the 1st Circuit to suspend Talwani’s restraining order and allow USPS to implement the requirements while litigation continues.
If the appeals court refuses, the administration could seek emergency relief from the Supreme Court.
That would put essentially the same controversy before the justices again — but with one major difference:
There is now a final USPS rule.
The first Supreme Court fight largely turned on whether the states had gone to court too soon.
A second trip could force the courts closer to the underlying question:
Does USPS have the legal authority to impose these requirements on states distributing absentee ballots for federal elections?
That could prove considerably more consequential than the first Supreme Court ruling.
USPS Responds To Whistleblower
USPS issued a statement Tuesday responding to concerns raised by the whistleblower and U.S. Sen. Richard Blumenthal, D-Connecticut.
The Postal Service said it is reviewing the allegations and defended development of its Federal Ballot Mail Portal as an effort to give election officials a secure and efficient method for sharing information about voters receiving ballots through the mail.
Most importantly for Michigan voters, USPS confirmed that the disputed verification process is not currently being used.
“Consistent with the temporary restraining order, verification procedures prior to acceptance are not being performed,” USPS said.
The Postal Service said it is continuing to finalize the portal and intends to make it available to election officials who voluntarily want to familiarize themselves with the system.
USPS says its goal is to ensure election mail is handled securely, reliably and efficiently.
The whistleblower paints a dramatically different picture, alleging the system was rushed, inadequately tested and vulnerable to failures that could delay large batches of ballots.
Those allegations have not been established in court.
Michigan Has Stronger Certification Protections
Even if the USPS controversy produced confusion after Election Day, that does not mean a losing candidate could simply overturn Michigan’s election.
Michigan changed its election laws and Constitution following the disputes surrounding the 2020 presidential election.
The Michigan Constitution now describes certification by canvassing boards as a ministerial, clerical and nondiscretionary duty.
That is significant.
Election canvassers don’t have unlimited authority to refuse to certify results because they suspect something went wrong or disagree with an outcome.
The Michigan Board of State Canvassers certifies statewide and federal election results based on certified county returns.
Candidates and political parties can challenge results through established legal processes.
They can sue.
Recounts can occur.
Courts can issue orders.
But political officials cannot simply declare that a Michigan election doesn’t count.
Confusion can produce litigation. It does not automatically provide a mechanism for overturning an election.
The Margin Could Determine How Serious A Challenge Becomes
The size of any alleged disruption would nevertheless matter.
Suppose a candidate wins by 150,000 votes and evidence shows 2,000 voters experienced problems receiving absentee ballots.
It would be extremely difficult to argue those problems determined the winner.
Now change the numbers.
Suppose the margin is 3,000 votes and evidence establishes that 20,000 voters encountered serious problems receiving ballots.
The legal and political stakes become dramatically greater.
That doesn’t mean a court automatically orders a new election or declares the losing candidate the winner.
It means the relationship between the alleged problem and the margin becomes a central issue in whatever litigation follows.
Michigan’s history makes that more than an academic possibility.
Should Michigan Voters Avoid Voting By Mail?
The current evidence doesn’t support telling Michigan voters to abandon absentee voting.
The controversial USPS verification requirements are blocked.
USPS says the procedures are not currently being performed.
More than 2.2 million Michiganders successfully voted by mail in the 2024 general election.
But voters concerned about mail delivery aren’t limited to one way of casting their ballots.
The Most Important Date May Be Sept. 3
Before any of these hypothetical election challenges occur, another court decision is approaching.
Talwani has scheduled a hearing Thursday, Sept. 3, on whether to replace the temporary restraining order with a longer-lasting preliminary injunction.
The Trump administration simultaneously is asking the 1st Circuit to let USPS begin enforcing the requirements.
Michigan Attorney General Dana Nessel argues that the federal government is attempting to interfere with authority the Constitution gives states to administer elections.
USPS and the Justice Department contend the Postal Service is simply establishing legitimate standards for handling an unusually important category of mail.
That legal fight is occurring while Michigan’s election calendar continues moving.
Michigan officials are scheduled to begin mailing absentee ballots Sept. 19.
For Michigan voters, therefore, the immediate situation is considerably less alarming than the political rhetoric surrounding the case might suggest.
The disputed USPS verification system is not currently operating. Michigan’s absentee-voting system remains available. And Michigan law makes simply refusing to certify an election result difficult.
But if the courts reinstate the USPS requirements before ballots begin moving — and the whistleblower’s warnings about the system prove accurate — the situation could change quickly.
That’s why the next chapter of Michigan’s election fight may be written not at the ballot box, but in federal court.
