Sometime this week, the Supreme Court is expected to rule on the DOJ’s application to stay an injunction that has barred federal agencies from fully implementing Trump’s executive order on mail voting. The ruling will probably determine if the order can be implemented in time to impact the November midterms.

The case involves Executive Order 14399, “Ensuring Citizenship Verification and Integrity in Federal Elections,” issued on March 31. The order directs agencies, including the Department of Homeland Security and the Postal Service, to establish new procedures for absentee ballots and to develop citizenship verification lists for states.

Three lawsuits have been filed to prevent implementation of the order and the associated rule change proposed by the Postal Service: California v. Trump, League of Women Voters of Massachusetts v. Trump, and DSCC v. Trump. A fourth case, NAACP v. U.S. Postal Service, which originated in 2020, was renewed as well. The cases raise overlapping but somewhat different claims concerning the President’s authority, state control over elections, voting rights, and the Postal Service’s authority to impose new requirements on ballot mail.

On April 3, in California v. Trump, twenty-three states filed a complaint challenging the order and seeking to block its implementation. On June 25, U.S. District Judge Indira Talwani granted the states summary judgment on several claims, ruling that the order was unlawful and enjoining implementation for the 2026 election. On July 27, the First Circuit declined to stay Talwani’s injunction while the government’s appeal proceeded, concluding that the government had not made the showing required for emergency relief.

The Trump Administration then filed an emergency application with the Supreme Court, asking it to stay Talwani’s injunction while the appeal proceeds so the government could move forward with implementation in time for the November midterms.

If SCOTUS denies the stay, Talwani’s California injunction remains in effect while the appeal proceeds. If SCOTUS grants the stay, the government could resume implementation of the provisions blocked in California. But whether that would clear the way for the Postal Service to implement its new ballot-mail regulation for the midterms now depends largely on what the Supreme Court says — and on a second injunction Talwani issued last week.

On August 11, Talwani issued a separate preliminary injunction in League of Women Voters, barring USPS nationwide from completing the rulemaking necessary to promulgate the regulations contemplated by the Executive Order. The League litigation challenges the order on constitutional and statutory grounds, and Talwani previously held that the plaintiffs had adequately alleged that the provision exceeds the authority Congress gave USPS and improperly inserts the Executive Branch into state mail-ballot administration.

The DOJ has now brought the League injunction to the Supreme Court’s attention and wants the Court to explain its ruling in California in a way that would effectively undermine the basis for Talwani’s new injunction. A ruling in California would not itself formally stay the League injunction, since that case is not presently before the Supreme Court. But a sufficiently broad ruling on standing or ripeness could make it difficult for Talwani or the First Circuit to leave the League injunction in place. That could then clear the way for the order and postal rule to be implemented for the November election.

The Proceedings

In response to the DOJ’s application for a stay in California, fourteen amicus briefs were filed in the case, one supporting the DOJ and thirteen opposing the stay. The briefs come from former judges, governors, election officials and advocacy groups. 

Here’s a summary of the documents filed in the proceedings. The links go to the documents on the Supreme Court docket page. A consolidated pdf with all of these documents can be found here. 

Application for a stay: The Solicitor General’s application for the stay argues that the case is premature. DOJ contends that because the USPS ballot-mail rule is still in the rulemaking stage, it creates no binding obligations. Agencies may revise rules after public comment, making judicial speculation about a final rule’s impact inappropriate at this stage.

Regarding the citizenship lists, DOJ argues that DHS is still considering how to implement the Executive Order. Since future actions are uncertain, any alleged injuries are speculative. Furthermore, the government claims the injunction causes irreparable harm by preventing the Executive Branch from carrying out presidential directives.

Opposition to application for a stay: The plaintiff states, California et al., argue the dispute is ripe because the Executive Order is already forcing them to change behavior. To prepare for the 2026 midterms, election officials must act now — designing ballots, retaining vendors, and training workers. They argue they cannot wait for the final stages of federal rulemaking. The states also emphasize that the government itself says implementation must begin as soon as early to mid-August if the policies are to be used in November.

While the government characterizes the proposal as an ordinary rulemaking process, the states, along with several of the amicus briefs, argue that Congress has not given the Postal Service authority to restrict absentee balloting, regulate voter eligibility, or create the contemplated voter-list system. They see the Executive Order as upsetting the constitutional balance between federal and state power.

The single amicus brief supporting the government was filed by America’s Future, Citizens United, Citizens United Foundation, and allied organizations. Unlike the Solicitor General’s application for a stay, which concentrates on ripeness, standing, and final agency action, this brief defends the Executive Order on the merits. It argues that the President may direct executive agencies to enforce existing election laws, that a national list of citizens eligible to vote is important to election integrity, and that the district court rewarded forum shopping. It also discusses noncitizen voting, the Take Care Clause, and related election-integrity concerns.

The DSCC brief was filed by the Democratic Senatorial Campaign Committee, Democratic Congressional Campaign Committee, Democratic National Committee, Democratic Governors Association, Senator Charles Schumer, and Representative Hakeem Jeffries. They argue that political parties and candidates are already changing voter education, absentee-ballot outreach, and resource allocation because of the Executive Order. Their brief also argues that DOJ cannot simultaneously claim implementation is too speculative for judicial review while insisting it is too urgent to delay (the “too early, too late” argument). DSCC, it should be noted, is the plaintiff in a separate case in which Judge Nichols denied preliminary relief as premature; on July 28, the D.C. Circuit upheld that result, concluding that the challenge was likely unripe.

The Society for the Rule of Law, which describes itself as a conservative organization, focuses its opposition to the stay on the Postal Service provisions. It argues that neither the Constitution nor the National Voter Registration Act, the Help America Vote Act, the Voting Rights Act, nor Title 39 authorizes USPS to regulate voter lists or refuse ballot mail. It also develops the “too soon, now too late” argument, contending that delaying judicial review now because it’s too soon (unripe) could allow the government later to invoke the Purcell principle and argue the proximity of the election as a reason courts should not intervene.

The Bipartisan American Election Project (BAEP) brief was prepared by veteran Republican and Democratic election lawyers. It argues that the Executive Order is already forcing states to divert resources, redesign election procedures, and prepare for federal requirements that conflict with state law. Its distinctive contribution is to combine bipartisan election-law experience with a practical account of the realities of administering elections.

The Bipartisan Former Governors brief represents the views of twenty-six former governors. They focus on constitutional structure and federalism. They argue that the Elections Clause deliberately places election administration primarily in state hands, subject to Congress’s authority, and that decentralization protects democracy by making national manipulation far more difficult. Their brief emphasizes their own institutional experience and the constitutional allocation of authority rather than technical administrative-law doctrine.

The Former Federal Judges brief is by 56 former judges, including federal and state judges appointed by Presidents and governors of both major political parties. Thirty-three of them were appointed by Republican Presidents or governors or ran for their positions as Republicans. They frame the dispute through the Supreme Court’s traditional standards for granting a stay. Rather than emphasizing election policy, they argue that the public interest favors preserving the injunction because there is generally “no public interest in the perpetuation of unlawful government action.”

The brief by State and Local Election Officials, Local Governments, and the Center for Election Innovation & Research (CEIR) explains why preparation for the November 2026 election is already underway, why states cannot simply “wait and see,” and why threats of federal enforcement are already affecting election administration. The brief also takes note of the fact that OIRA listed the Postal Service ballot-mail rule as “pending” and in the “Final Rule” stage as of July 30, making the controversy more concrete than DOJ suggests.

The Harris County, Texas brief offers a practical case study explaining why the Executive Order cannot realistically be implemented before the November election. It argues that Texas law conflicts with several provisions of the order, that new ballot-envelope requirements would be extraordinarily difficult to administer, and that there is simply insufficient time to redesign election procedures.

The Wisconsin Democracy Campaign and EXPO Wisconsin use Wisconsin’s highly decentralized election system as a case study. The brief explains how nearly 1,900 municipal clerks, county officials, and the Wisconsin Elections Commission share election responsibilities, making late federal changes uniquely disruptive. It also emphasizes the ways in which the Executive Order would conflict with Wisconsin election law.

The American Association of People with Disabilities (AAPD)  focuses on absentee voting as an accessibility issue. It argues that many disabled voters cannot simply vote in person. Changes in mail-ballot procedures and additional federal verification requirements create new opportunities for error, delay, and disenfranchisement.

The National Security Leaders for America brief, addressing military and overseas voting under UOCAVA, concentrates on military and diplomatic personnel, their families, and other voters protected by UOCAVA. It argues that overseas voters may have little opportunity to correct mistakes or simply appear at a polling place if ballots are rejected.

The Asian Law Caucus, AALDEF, Common Cause, and allied organizations focus on the communities most likely to be affected. They argue that federal citizenship databases are incomplete and susceptible to mismatch errors, particularly involving naturalized citizens, meaning that immigrant communities, language minorities, and other vulnerable voters could bear a disproportionate share of the burden if the Executive Order were implemented.

Attorney Corey J. Biazzo, appearing as an individual amicus, argues that preserving the injunction is less disruptive than implementing an untested federal program. He suggests that if the Court grants partial relief, it should preserve the injunction against voter-specific ballot-mail conditions, nonacceptance of ballot mail, and enforcement based solely on omission from or nonparticipation in the federal lists.

DOJ reply: In its reply, the Solicitor General does not address the specific issues raised in the amicus briefs. Instead, he doubles down on the argument that the case is premature and relies heavily on the D.C. Circuit’s July 28 decision in DSCC v. Trump, which concluded that the challenge there was likely unripe because the Executive Order is not self-executing and further agency action remains necessary. DOJ also emphasizes that USPS has not issued a final rule and argues that the Executive Order required USPS only to propose certain provisions, not necessarily to adopt them.

Supplemental Brief in Support of Application for a stay: On August 12, the DOJ pointed to the district court’s ruling in League and stated, “The district court’s new order confirms the urgent need for this Court to grant  the stay of the permanent injunction and to explain its rationale for doing so.” The DOJ wants to prevent a situation where SCOTUS grants a stay in California but with a rationale that ends up leaving the injunction in place for League. “Otherwise, the district court’s erroneous orders will effectively run out the clock on the government’s ability to implement Section 3 of the Executive Order for the federal elections in November.”

In response, the states immediately filed a supplemental brief arguing that the two cases involve distinct legal issues. If the government believes a stay in the League case is warranted, “the proper course is to seek a stay in that case and to give those plaintiffs an opportunity to respond.” In other words, a stay in California should have nothing to do with a stay in League.

As noted above, a pdf compiling all the documents submitted on the stay application can be found here.

— Steve Hutkins

(Image Credit: Collection of the Supreme Court of the United States)