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Amicus brief of the Society for the Rule of Law, No. 26A305

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No. 26A305

IN THE SUPREME COURT OF THE UNITED STATES
____________________________________

UNITED STATES POSTAL SERVICE, et al., Applicants,

STATE OF CALIFORNIA, et al., Respondents.
____________________________________

DONALD J. TRUMP, et al., Applicants,

LEAGUE OF WOMEN VOTERS OF MASSACHUSETTS, et al., Respondents.
_____________________________________

On Application for a Stay of the Injunction Issued by The United States
District Court for The District of Massachusetts and Request for an
Immediate Administrative Stay
______________________________________

BRIEF AMICUS CURIAE OF THE SOCIETY FOR THE RULE OF LAW
OPPOSING THE APPLICATION FOR A STAY OF THE INJUNCTION
AND THE REQUEST FOR AN IMMEDIATE ADMINISTRATIVE STAY
AND IN SUPPORT OF RESPONDENTS

September 8, 2026

Richard D. Bernstein
Counsel of Record
Nancy A. Temple 1875 K Street NW, Suite 100
Katten & Temple, LLP Washington, DC 20006
33 N. Dearborn Street, Suite 1800 (301) 775-2064
Chicago, IL 60602 rbernsteinlaw@gmail.com

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CORPORATE DISCLOSURE STATEMENT

Pursuant to S. Ct. R. 29.6, Amicus The Society for the Rule of Law and Democracy, Inc.,

doing business as The Society for the Rule of Law, does not have a parent corporation, is not a

publicly traded company, and no publicly held corporation owns 10% or more of its stock.

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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT……………………………………………….. i

TABLE OF CONTENTS……………………………………………………………. ii

TABLE OF AUTHORITIES………………………………………………………... iii

INTEREST OF AMICUS CURIAE…………………………………………………….. 1

INTRODUCTION AND SUMMARY OF ARGUMENT……………………………. 1

ARGUMENT…………………………………………………………………………. 2

I. The Constitution And Federal Election Statutes Preclude The USPS Ballot
Rule.…………………………………………………………………………………. 2

A. HAVA ………………………………………………………………………… 3

B. NVRA ………………………………………………………………………… 7

C. VRA…………………………………………………………………………… 8

D. Judicial Review……………………………………………………………….. 8

II. Title 39 Provisions Preclude USPS Authority To Bar Ballot Delivery………………. 9

A. Nonmailability………………………………………………………………… 9

B. The Boilerplate Provisions……………………………………………………. 13

III. Clear Statutory Authorization Is Required And Absent………………………………. 14

A. The Federalism Presumption………………………………………………….. 14
B. The Major Questions Doctrine………………………………………………… 15

CONCLUSION……………………………………………………………………………… 20

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TABLE OF AUTHORITIES

Page(s)

Cases

Ali v. Federal Bureau of Prisons,
552 U.S. 214 (2008) ................................................................................................................4
Arizona v. Inter Tribal Council of Arizona, Inc.,
570 U.S. 1 (2013) ............................................................................................................ 14, 17
Biden v. Nebraska,
600 U.S. 477 (2023) ..............................................................................................................18
Bond v. United States,
572 U.S. 844 (2014) ..............................................................................................................14
Bost v. Illinois State Board of Elections,
607 U.S. 71 (2026) ................................................................................................................16
Corner Post, Inc. v. Board of Governors of the Federal Reserve System,
603 U.S. 799 (2024) ................................................................................................................5
Diamond Alternative Energy, LLC v. EPA,
606 U.S. 100 (2025) ..............................................................................................................19
Esteras v. United States,
606 U.S. 185 (2025) .......................................................................................................... 5, 12
Fourco Glass Co. v. Transmirra Prods. Corp.,
353 U.S. 222 (1957) ........................................................................................................ 14, 15
Gonzales v. Oregon,
546 U.S. 243 (2006) ..............................................................................................................15
Greenlaw v. United States,
554 U.S. 237 (2008) ................................................................................................................7
Hannegan v. Esquire, Inc.,
327 U.S. 146 (1946) ................................................................................................................9
Heffernan v. City of Paterson,
578 U.S. 266 (2016) ..............................................................................................................17
Learning Resources, Inc. v. Trump,
607 U.S. 229 (2026) ........................................................................................................ 16, 17
NRC v. Texas,
605 U.S. 665 (2025) ................................................................................................................8
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639 (2012) ..............................................................................................................12
Shelby County v. Holder,
570 U.S. 529 (2013) ..............................................................................................................14
Slack Technologies, LLC v. Pirani,
598 U.S. 759 (2023) ................................................................................................................5
Trump v. Barbara,
146 S. Ct. 2438 (2026) ..........................................................................................................16
Trump v. California,
2026 WL 2473573 (U.S. Aug. 24, 2026) .................................................................................2

iii

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Trump v. Illinois,
146 S. Ct. 432 (2025) ..............................................................................................................7
United States v. Gradwell,
243 U.S. 476 (1917) ........................................................................................................ 14, 15
United States v. Rahimi,
602 U.S. 680 (2024) ..............................................................................................................16
United States v. Town of Thornapple,
143 F.4th 793 (7th Cir. 2025) ..................................................................................................4
Watson v. Republican Nat'l Comm.,
146 S. Ct. 2165 (2026) .................................................................................................. 3, 9, 12
West Virginia v. EPA,
597 U.S. 697 (2022) ....................................................................................................... passim
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ..............................................................................................................16

Statutes

2 U.S.C. §§1-9, 381-96 .............................................................................................................20
3 U.S.C. §§1-22 ........................................................................................................................20
18 U.S.C. §611..........................................................................................................................12
18 U.S.C. §1716............................................................................................................ 10, 11, 12
18 U.S.C. §1716(a) ............................................................................................................. 10, 11
18 U.S.C. §1716(b) and (j)(1)....................................................................................................11
18 U.S.C. §§592-611.................................................................................................................20
39 U.S.C. §401(2) ......................................................................................................... 11, 12, 13
39 U.S.C. §404(e)(2) .................................................................................................................13
39 U.S.C. §410(a) ................................................................................................................. 8, 14
39 U.S.C. §3001(a) ............................................................................................................. 10, 12
39 U.S.C. §3001(g)(2) ...............................................................................................................10
39 U.S.C. §3001(m) ....................................................................................................................9
39 U.S.C. §3001(n)(1) ...............................................................................................................10
39 U.S.C. §3406..........................................................................................................................2
39 U.S.C. §3629...................................................................................................................... 2, 7
39 U.S.C. §§3001-3018 ............................................................................................... 2, 9, 12, 13
39 U.S.C. §§3001(d)(2), 3001(g)(2), 3001(h)(1)(b), 3001(i)(1)(b), 3001(n)(1), 3002(b), 3010(a),
3014(c), 3018(a)&(b)(1) ........................................................................................................10
52 U.S.C. §10502 ........................................................................................................................8
52 U.S.C. §10502(g) ...................................................................................................................8
52 U.S.C. §20508(a)(1)-(3) .........................................................................................................7
52 U.S.C. §20511 ......................................................................................................................12
52 U.S.C. §21081(a)....................................................................................................................4
52 U.S.C. §21081(b)(2)(E) ..........................................................................................................4
52 U.S.C. §21083(a)(1)(A).................................................................................................. 3, 4, 6
52 U.S.C. §21084 ............................................................................................................ 1, 4, 5, 6
52 U.S.C. §21085 ........................................................................................................................3
52 U.S.C. §§20506(a)(1), 20507(a) .............................................................................................7
52 U.S.C. §§21081(d), 21083(d)(1)(B) ......................................................................................13

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52 U.S.C. §§ 21081, 21083, 20506-07, 10502 .............................................................................1
52 USC §21145(a) .......................................................................................................... 1, 4, 5, 6

Other Authorities

75 Fed. Reg. 282 (2010) ...................................................................................................... 10, 11
90 Fed. Reg. 9843 .....................................................................................................................11
90 Fed. Reg. 9843 (2025) ..........................................................................................................10
91 Fed. Reg. 54966-70 (2026) .....................................................................................................2
91 Fed. Reg. ..............................................................................................................................10
1 Stat. 239 (1792)……………………………………………………………………………… 19
16 Stat. 433 (1871)……………………………………………………………………………… 15
28 Stat. 36 (1894)……………………………………………………………………………… 15
56 Stat. 753 (1942)……………………………………………………………………………… 19
79 Stat. 437 (1965)……………………………………………………………………………… 15
107 Stat. 77 (1993)……………………………………………………………………………….13
120 Stat. 577 (2006)…………………………………………………………………………… 15
DMM 705.24.5…………………………………………………………………………………. 4
EO 14399 ....................................................................................................................................2
H.R. 22 (2025) ..........................................................................................................................19
H.R. 5658 (2023) ......................................................................................................................19
H.R. 7296 (2026) ......................................................................................................................19
H.R. 7300 (2026) ......................................................................................................................19
H.R. 8281 (2024) ......................................................................................................................19
H.R. Rep. No. 107-329................................................................................................................6
2 The Records of the Federal Convention of 1787 (M. Farrand ed., 1911)…………………… 16
A. Scalia & B. Garner, Reading Law (2012)…………………………………………………… 9

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INTEREST OF AMICUS CURIAE

Amicus The Society for the Rule of Law and Democracy, Inc., d/b/a The Society for the

Rule of Law (“SRL”), is a national non-profit, non-partisan membership organization of

conservative, libertarian, right-of-center-lawyers, and others, who are dedicated to defending the

rule of law, separation of powers, and federalism.1 SRL has an interest in seeing that the USPS

does not violate these principles by violating the Constitution, federal election statutes, and Title

39.

INTRODUCTION AND SUMMARY OF ARGUMENT

Among the myriad bases for denying a stay, this brief focuses on three independently

sufficient reasons why the unprecedented USPS ballot rule plainly lacks authority. First, rather

than delegate authority to USPS, in the federal election statutes of the Help America Vote Act of

2002 (“HAVA”), the National Voter Registration Act of 1993 (“NVRA”), and the Voting Rights

Act (“VRA”), Congress specifically delineated where federal law altered and where federal law

preserved state authority concerning the election practices addressed by the USPS ballot rule—

voter lists, delivery of “any . . . paper ballots” to voters, and absentee balloting. 52 U.S.C. §§

21081, 21083, 20506-07, 10502. Except where expressly altered by these statutes, Congress

specifically preserved authority concerning these election practices and “election technology and

administration requirements” for the States only, thereby withholding any such authority from

the USPS. 52 U.S.C. §21084; see id. §§21085, 20507(a), 10502(g). And 52 USC §21145(a)

specifically superseded resort to all the Title 39 non-election provisions on which Applicants

rely.

1
Amicus states that no counsel for any party authored this brief in whole or in part, and that no entity, aside from
amicus and its counsel, made any monetary contribution toward its preparation or submission. The views of SRL do
not necessarily represent the views of all individual members.

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Second, election mail was specifically withheld from the nonmailability provisions in 39

U.S.C. §§3001-3018. Those provisions are the only place where—nine times—Congress

expressly gives the USPS authority to condition or restrict the mailing of a category of items.

Election mail is not one of these categories. Instead, the only Title 39 election provisions are 39

U.S.C. §3629, which NVRA enacted and requires USPS to give favorable postage rates to

registration mail, and 39 U.S.C. §3406, which UOCAVA enacted and requires expeditious and

free carriage of UOCAVA voting materials. The non-election, boilerplate Title 39 provisions on

which Applicants rely are not a secret, alternative way for the USPS to bar ballot mail,

conditionally or otherwise, on the eve of election day.

Third, under the federalism presumption and the major question doctrine, the USPS

needed a clear statement of statutory authority. The boilerplate provisions in Title 39 do not

come close.

ARGUMENT

I. The Constitution And Federal Election Statutes Preclude The USPS Ballot Rule.

The Elections Clause empowers only Congress to “alter” state election practices. The

USPS ballot rule entitled “Ballot Mail for Federal Elections” is an election-only rule that

illegally alters state election practices, not a general postal rule like extra postage for a heavy

package or requiring a proper address. The Applicants stated that they needed the final rule for

the 2026 election. Trump v. California, 2026 WL 2473573, at *4 (U.S. Aug. 24, 2026)(per

curiam). The USPS ballot rule is replete with purported election integrity justifications. 91 Fed.

Reg. 54966-70 (2026). The rule derives from EO 14399, which is entitled: “Ensuring

Citizenship Verification And Integrity In Federal Elections.” The rule applies to ballot mail

only. The District Court therefore properly considered statutes in Title 52, the Title for “Voting

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and Elections,” in addressing whether Congress allocated authority here to the States rather than

to USPS.

Because the Constitution gives the States full power over federal elections except where

Congress alters their regulations of elections, “Congress’s power to regulate elections

‘supersede[s] state law ‘so far as it is exercised, and no farther.’” Watson v. Republican Nat'l

Comm., 146 S. Ct. 2165, 2181 (2026)(citation omitted). This means that where a federal election

statute alters a state election practice to a stated extent, the Constitution and Congress are

preserving state authority concerning that practice except as so altered. HAVA, NVRA, and the

VRA expressly addressed both where federal election law altered and where federal election law

preserved state authority concerning any voter list, delivering any paper ballots, absentee

balloting, and election technology and administration. By specifically preserving state authority

over these election practices where these federal election statutes had not altered them, these

federal election statutes specifically and necessarily withheld from USPS any additional federal

regulatory power to alter such state election practices, by a lot or a little.

A. HAVA.

HAVA sets the limits of federal aleration of state election practices concerning voter lists,

the delivery of any paper ballots to voters, and election technology and administration.

Tellingly, 52 U.S.C. §21085 states: “The specific choices on the methods of complying with the

requirements of this subchapter shall be left to the discretion of the State.” (Emphasis added).

HAVA requires only “a single, . . . official . . . statewide voter registration list” for each

state with such list “defined, maintained, and administered at the State level.” 52 U.S.C.

§21083(a)(1)(A)(emphasis added). This “computerized list shall serve as the single system for

storing and managing the official list of registered voters throughout the State” and “shall serve

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as the official voter registration list for the conduct of all elections for Federal office in the

State.” Id. §21083(a)(1)(A)(i), (viii)(emphases added). Contradicting “the” and “single,” the

USPS ballot rule illegally establishes a second federally-mandated statewide voter list for each

State, i.e., a list of those enrolled to vote by mail. A State cannot have any mail-in voting unless

the state enrolls voters through a portal on a “List” of mail-in voters, and then only for voters

verified by the USPS as “enrolled” on the new “List.” DMM 705.24.5.

Moreover, Applicants ignore that the District Court found that the ballot rule transgressed

52 U.S.C. §21084. App. 26a. Section 21084 provides that only “a State”—not a federal

agency—may “establish[] election technology and administration requirements that are more

strict than the requirements under this subchapter so long as such State requirements are not

inconsistent with the Federal requirements under this subchapter or [four other federal election

statutes and two federal disability statutes] described in section 21145 of this title.” (Emphases

added). The USPS ballot rule exceeded this §21084 limit by establishing stricter federal

requirements for portals, Lists, and verification by the USPS.

There is more. 52 U.S.C. §21081(a) establishes the federal “requirements” for “[e]ach

voting system used in an election for Federal office.” (Emphasis added.) The term “voting

system” includes “the practices and associated documentation used . . . to make available any

materials to the voter (such as notices, instructions, forms, or paper ballots).” 52 U.S.C.

§21081(b)(2)(E)(emphases added). “[T]he word ‘any’ has an expansive meaning, that is, ‘one or

some indiscriminately of whatever kind.’” Ali v. Federal Bureau of Prisons, 552 U.S. 214, 219

(2008)(brackets added; citation omitted). Every method for delivering any “paper balloting” is a

“voting system” under HAVA. United States v. Town of Thornapple, 143 F.4th 793, 798-99 (7th

Cir. 2025).

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The documentation and practices used for delivering any paper ballots to mail-in voters,

including mailing and envelopes, constitute a “voting system.” Here, under the USPS ballot rule,

the barcoded Outbound Federal Ballot Mail Envelopes, portal information, and Mail-in and

Absentee Participation List, singly and combined, illegally establish a new, more restrictive

federally-imposed “voting system” because they are documentation and practices used to make

notices, instructions, forms, and mail-in paper ballots available to fewer voters. But again 52

U.S.C. §21084 provides that only “a State”—not a federal agency—may “establish[] election

technology and administration requirements that are more strict than the requirements under this

subchapter.” (Emphases added).

To remove any doubt, 52 U.S.C. §21145(a) states that “nothing in this chapter may be

construed to authorize or require conduct prohibited under any of the following laws, or to

supersede, restrict, or limit the application of such laws.” (Emphases added). The six, specified,

protected federal statutes that comprise “the following laws” and “such laws” are only

UOCAVA, VRA, NVRA, the Voting Accessibility for the Elderly and Handicapped Act, and

two primarily non-election disability statutes. Id. Both “such laws” and “the following laws”

are narrowing phrases. See Corner Post, Inc. v. Board of Governors of the Federal Reserve

System, 603 U.S. 799, 817 (2024) (“the” “focuses on a specific” thing); Slack Technologies, LLC

v. Pirani, 598 U.S. 759, 767 (2023) (“‘such’ … narrows the law’s focus”). The “well

established canon of statutory interpretation: expressio unius est exclusio alterius . . . has

particular force here because the” six federal statutes protected by §21145(a) “constitute an

‘established series,’ such that any ‘omission’ from that series necessarily ‘bespeaks a negative

implication.’” Esteras v. United States, 606 U.S. 185, 195 (2025)(citation omitted). Congress

here “exclude[d] another [federal provision] left unmentioned.” Id. (quotations omitted). Thus,

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concerning HAVA subjects, the application of a federal statute not listed in “the following”

series of six specified statutes is superseded, restricted, and limited. Section 21145(a) omits from

the series all the Title 39 provisions on which the Applicants rely. Enforcing this deliberate

exclusion fulfills a central HAVA purpose that state and local “administration” of federal

elections “must be preserved” so that it remains “impossible for a single centrally controlled

authority to dictate how elections will be run, and thereby be able to control the outcome.” H.R.

Rep. No. 107-329, pt. 1, at 31-32 (2001)(“HAVA Report”)(emphasis added).

The Application at 28 nonetheless argues that the party-presentation principle blinds this

Court to HAVA, the federal election statute that specifically preserves for States only, and thus

withholds from USPS, authority on the very subjects in this case: voter lists, delivery of any

paper ballots to voters, and election technology and administration. Applicants are incorrect for

three independently sufficient reasons. First, the plaintiffs relied in the District Court on HAVA

(and NVRA and the VRA) in support of their preliminary injunction motions. For example, the

State Plaintiffs-Respondents wrote: “Congress has set requirements related to voter lists, the

sending of paper ballots to voters, and absentee ballots. See, e.g., 52 U.S.C. §§ 21083(a)(1)(A);

21081, 10502(c)-(f). But Congress has otherwise left decisions about the administration of

federal elections, including mail ballot programs, in the hands of the States. See, e.g., 52 U.S.C.

§§ 21084, 10502(g).” California v. USPS, ECF 103 at 7. See also id., ECF 5 at 2; id., ECF 1 at

35, 45; League of Women Voters v. Trump (“LVW”), ECF 207 at 9; id., ECF 205, at 22; see also

Sept. 3, 2026 Hrg. at 41-42. This was more than sufficient for the District Court to rely on the

federal election statutes that preserved state authority concerning the election practices at issue.

Second, under the related-statute canon and clear statement rules, the express provisions

of the Title 52 election statutes must be considered. That is because they are pertinent to refuting

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the Applicants’ argument that non-election Title 39 provisions surreptitiously delegated authority

to USPS to alter state election practices where Title 52 provisions preserved state authority for

those practices . See infra, at 9, 13-14, 17, 19-20.

Third, Trump v. Illinois, 146 S. Ct. 432, 434 (2025), denied a stay based on a statutory

argument “that the District Court had addressed” but that the parties “had not” raised in the

District Court, the Seventh Circuit, or this Court, until this Court in response to an amicus brief

directed the parties to do so in supplemental briefs. See also Greenlaw v. United States, 554 U.S.

237, 250 & n. 5 (2008)(Court may affirm based on a “novel” argument “presented for the first

time in the brief amicus filed in this Court”). Here, in addition to Plaintiffs-Respondents raising

the arguments, the Applicants cannot dispute that the HAVA, NVRA, and VRA arguments were

raised in an amicus brief filed with leave from the District Court two days before the Applicants’

preliminary injunction opposition briefs. LWV v. Trump, ECF 213, Attach. 1, at 3-8; see

California v. USPS, ECF 40, Attach. 1, at 3-8. The USPS should not be allowed in this case to

transgress the provisions of HAVA, NVRA and the VRA that preserve the election authority of

the States and thus deny the same authority to USPS.

B. NVRA.

NVRA charges only state agencies with “the registration of voters in elections for

Federal office” and “the administration of voter registration for elections for federal office.” 52

U.S.C. §§20506(a)(1), 20507(a)(emphasis added). 52 U.S.C. §20508(a)(1)-(3) limits the federal

authority to issue “regulations” on NVRA topics to the Election Assistance Commission and one

subject – “a mail voter registration application form.” NVRA gives the USPS no regulatory

power concerning enrolling voters on or administering any voter list. To the contrary, NVRA’s

only mention of the USPS, now codified in 39 U.S.C. §3629, is to require the USPS to give

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favorable postage rates to registration mail. The USPS ballot rule transgresses NVRA’s very

limited alteration of state election practices.

C. VRA.

The Application ignores that the District Court correctly found, App. 26a, that the ballot

rule transgressed 52 U.S.C. §10502. Subsections (b)-(f) set forth the full extent to which federal

rules alter “absentee balloting in presidential elections.” Most important, 52 U.S.C. §10502(g)

preserves the authority of “any State or political subdivision” to “adopt[] less restrictive voting

practices than those that are described herein.” (Emphasis added). Unlike subsections (b)-(f) of

§10502, subsection (g) is not limited to presidential elections. Thus, it preserves the absentee

balloting authority of the States in all federal elections. The executive branch is denied authority

to adopt more restrictive absentee balloting practices. The USPS ballot rule illegally does this.

D. Judicial Review

Because the USPS ballot rule transgressed Title 52’s preservation of state authority over

the pertinent election practices, the rule arrogated the constitutional powers of the States over

elections. For this and other reasons, 39 U.S.C. §410(a) does not limit APA or ultra vires

review. 39 U.S.C. §410(a) precludes applying the APA to only “the exercise of the powers of

the Postal Service.” But election powers allocated by the Constitution to the States, and

preserved by Title 52, are not among “the powers of the Postal Service.” Further, ultra vires

review protects the constitutional powers of the States. In all events, because federal election

statutes “specifically withheld,” NRC v. Texas, 605 U.S. 665, 681 (2025)(quotations omitted),

from USPS power to alter state election practices concerning voter lists, delivery of any paper

ballots, absentee balloting, and election administration and technology, ultra vires review is

proper even under Applicants’ standard.

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II. Title 39 Provisions Preclude USPS Authority To Bar Ballot Delivery.

Assuming that USPS may sometimes use the non-election provisions of Title 39 to

establish election-only rules that alter state election practices, related statutes are to be

“interpreted together, as though they were one law.” A. Scalia & B. Garner, Reading Law 252

(2012). This “most rudimentary rule of statutory interpretation” applies to federal elections.

Watson, 146 S. Ct. at 2173. “[T]he body of the law should make sense” and “it is the

responsibility of the courts, within the permissible meanings of the text, to make it so.” Reading

Law, at 252. It makes no sense where the express and detailed election provisions of Title 52

preserve state authority over voter lists, the delivery of any paper ballots, absentee balloting, and

election administration and technology, for the non-election boilerplate provisions in Title 39 to

authorize the USPS to nullify all the Title 52 preservations of state authority in these areas.

A. Nonmailability.

Even looking at Title 39 alone, Congress in the nonmailability provisions prohibited

USPS from adding ballot mail to the categories for which the USPS is authorized to bar mail.

Those provisions are the exclusive place in Title 39 where Congress gave USPS authority to bar

mailing those items in the named categories that do not meet the regulatory conditions that the

USPS imposes. “The postal laws make a clear-cut division between mailable and nonmailable

material.” Hannegan v. Esquire, Inc., 327 U.S. 146, 152 (1946). 39 U.S.C. §§3001-18 specify

all the categories that are “nonmailable.” Indeed, nonmailability rules “ha[ve] been zealously

watched and strictly confined” by Congress. Hannegan, 327 U.S. at 156 n.18 (emphasis added).

“[P]roceedings concerning the nonmailability of matter” are subject to APA review, 39 U.S.C.

§3001(m), and “strictly confined” satisfies any “specifically withheld” standard.

The USPS ballot rule did not and could not argue that any of the Title 39 nonmailability

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provisions authorize nonmailability for any ballots. 91 Fed. Reg. 54974. Instead, USPS argued

only that conditioning the acceptance of an entire category for mailing on satisfying USPS

regulations is not a nonmailability rule. 91 Fed. Reg. 54973. The statutory nonmailability

provisions refute this argument. Nine statutory nonmailability provisions take the same

conditional nonmailability approach as the USPS ballot rule. Those nine statutory

nonmailability provisions bar the mailing of a category of items except when a sender satisfies

the conditions set by USPS regulations, including conditions about what is on the envelope. See

39 U.S.C. §§3001(d)(2), 3001(g)(2), 3001(h)(1)(b), 3001(i)(1)(b), 3001(n)(1), 3002(b), 3010(a),

3014(c), 3018(a)&(b)(1). This is how the statute renders some items in specified categories

nonmailable—from fragrance advertising samples to hazardous materials. For example, 39

U.S.C. §3001(g)(2) states: “The Postal Service shall by regulation establish the standards or

requirements which a fragrance advertising sample must satisfy in order for the mail matter

involved not to be considered nonmailable under this subsection.” See also 39 U.S.C.

§3001(n)(1)(“Except as otherwise authorized by law or regulations of the Postal Service,

hazardous material is nonmailable.”). Contradicting the withholding of statutory conditional

nonmailability authority for ballots, the USPS ballot rule illegally uses the same exact

conditional nonmailability approach to bar all Outbound Federal Ballot Mail unless USPS’s

regulatory conditions are satisfied.

Applicants misplace reliance on the treatment of cremated remains and replica or inert

explosive devices as “Restricted Matter.” 90 Fed. Reg. 9843 (2025); 75 Fed. Reg. 282, 283

(2010). Both these restrictions are based on an express nonmailability statute, 18 U.S.C. §1716,

which 39 U.S.C. §3001(a) incorporates, not on the boilerplate provisions of Title 39. Applicants

have argued that 18 U.S.C. §1716(a) does not make cremated remains or replica or inert

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explosive devices nonmailable, but this contradicts that statute’s text as well as USPS statements

in the Federal Register and C.F.R. 18 U.S.C. §1716(a) applies not only to actual “explosives”

but also makes “all other natural or artificial articles, compositions, or material which may kill or

injure another, or injure the mails or other property . . . nonmailable matter,” except when USPS

“regulations” under 18 U.S.C. §1716(b) and (j)(1) “permit[]” mailing some such materials under

restrictions. (Emphasis added). The Federal Register’s descriptions of the remains and devices

track 18 U.S.C. §1716(a) exactly. The remains were “materials that could cause soiling, damage,

discomfort or destruction,” 90 Fed. Reg. 9843, and “postal operations have been disrupted and

facilities have been evacuated when replica or inert explosive devices have been discovered in

the mail.” 75 Fed. Reg. 283.

Moreover, Applicants ignore USPS Publication 52, which is incorporated in the C.F.R.

and cited in 90 Fed. Reg. 9843. Section 21 of Publication 52 identifies 18 U.S.C. §1716 as the

sole authority making "[r]estricted" matter "nonmailable" except when USPS regulatory

conditions are satisfied, and Sections 434 and 451.22 regulate the remains and replica or inert

explosive devices solely as “Restricted Matter.” In contrast, the USPS ballot rule did not and

could not classify ballot mail as “Restricted Matter” or rely on 18 U.S.C. §1716.

The Application at 21 also conflates nonmailability by conditioning or restricting a

disfavored category with helpful address standards that apply to all mail. Universal address

standards that ensure delivery are the antithesis of the USPS ballot rule that blocks deliveries in a

disfavored category.

Congress would not have strictly confined conditional and restricted nonmailability to

express, specific statutory nonmailability provisions like 18 U.S.C. §1716 if the USPS had

authority to use other, general, indeed boilerplate provisions like 39 U.S.C. §401(2)(“the

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boilerplate provisions”), to impose the exact same requirements, including for categories in what

would become the many superfluous statutory conditional nonmailability provisions. Doing so

creates “the superfluity of a specific provision that is swallowed by the general one.” RadLAX

Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012). It also violates the

negative-implication canon with “particular force” because 39 U.S.C. §§3001-18, including the

incorporation of 18 U.S.C. §1716, “constitute an established series, such that any omission from

that series necessarily bespeaks a negative implication.” Esteras, 606 U.S. at 195(quotations

omitted). Further, 39 U.S.C. §401(2) precludes regulations “inconsistent with this title.”

Another inconsistency is that 39 U.S.C. §§3001(a) and 3003(a) limit criminal-based

nonmailability to when a specific mailing is in “violation” of one of ten specified criminal-law

statutes. 39 U.S.C. §§3001(a), 3003(a). Merely helping investigations or deterring potential

violations is never enough to make an overwhelmingly-legitimate category nonmailable. And

the two potential crimes involving non-citizens cited here—18 U.S.C. §611; 52 U.S.C. §20511—

are not among the ten specified criminal statutes.

The USPS should offer its purported policy justifications for a new ballot nonmailability

rule to “legislatures, not courts.” Watson, 146 S. Ct. at 2179-80. Otherwise, an Administration

could use the Applicants’ logic to condition mailing ballots on having the voter and a witness

sign the envelope and having the envelope postmarked five days before the election. Or, because

these topics would now be USPS matters, a future administration could override state-law

signature and postmark date requirements. And so on.

Finally, Applicants assert a false equivalence between the new USPS ballot rule and the

prior USPS practice of prioritizing election mail. Prioritizing election mail does not

conditionally bar mail or alter any state election practice.

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B. The Boilerplate Provisions.

Not only do the Title 39 boilerplate provisions fail to provide an end-run around the

statutory limits on conditional nonmailability, by their own terms they preclude the USPS ballot

rule. 39 U.S.C. §401(2) is the only boilerplate provision to mention “regulations” and it

prohibits the USPS from promulgating “regulations” that are “inconsistent with this title” or not

“necessary in the execution of its functions under this title [or] such other functions as may be

assigned to the Postal Service under any provisions of law outside of this title.” To start, the

USPS ballot rule is “inconsistent” with the nonmailability limits in 39 U.S.C. §§ 3001-18.

Supra, at 9-12. It is also inconsistent with 39 U.S.C. §404(e)(2), because each of imposing and

administering new voter lists, modifying voting systems, restricting absentee balloting, and

election administration is a “nonpostal service.” HAVA, NVRA, and the VRA establish that

these functions are the exclusive domain of a state or Congress. Supra, Part I.A-C. This means

that the USPS ballot rule additionally violates the limit in §401(2) that regulations must be

“necessary” to execute “functions” assigned to the USPS by statute.

Finally, when Congress alters state election practices, it does not do so for the upcoming

election. NVRA was enacted on May 20, 1993, but was effective January 1, 1995. 107 Stat. 77,

89 (1993). HAVA was enacted October 29, 2002, but its voter list and voting system provisions

were effective January 1, 2006. 52 U.S.C. §§21081(d), 21083(d)(1)(B). Congress would never

authorize using a non-election provision to impose immediately-effective federal alterations of

state election practices on the eve of an election. Nothing in Title 39 authorizes the arbitrary,

belated, hurried mess that is the USPS ballot rule.

Because Title 39 prohibits the USPS ballot rule, there is no conflict with Title 52.

Indeed, there could be none because HAVA supersedes Title 39’s non-election provisions,

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supra, at 5-6, and all federal election statutes are omitted from the laws that 39 U.S.C. §410(a)

says are inapplicable to “the exercise of the powers of the Postal Service.” In all events, the

prohibitions from the specific federal election statutes would prevail over the general postal

statutory provisions that do not mention elections. See Fourco Glass Co. v. Transmirra Prods.

Corp., 353 U.S. 222, 228–29 (1957) (“Specific terms prevail over the general in the same or

another statute which otherwise might be controlling.”).

III. Clear Statutory Authorization Is Required And Absent.

A. The Federalism Presumption.

The District Court correctly applied the federalism presumption, App. 29a n. 34, which

the Application ignores. Title 39’s boilerplate provisions were enacted under the Postal Clause,

not the Elections Clause. Federalism and Tenth Amendment principles apply to federal

elections. Shelby County v. Holder, 570 U.S. 529, 543 (2013). Accordingly, USPS’s use of non-

election Title 39 provisions must overcome the presumption that, absent a clear statement, a

federal statute does not change the usual allocation of authority to the States. See Bond v. United

States, 572 U.S. 844, 857-60 & n.2 (2014); United States v. Gradwell, 243 U.S. 476, 485 (1917)

(non-election statute did not apply to federal elections because “whenever [Congress] has

assumed to regulate elections, it has done so by positive and clear statutes”). 2 The usual

allocation is that States determine and administer election practices. Supra, at 3-8. The Title 39

boilerplate provisions do not come close to a clear statement. See West Virginia v. EPA, 597

U.S. 697, 723, 732 (2022)(“modest words, vague terms, or subtle devices” do not provide a clear

statement).

2
There is an exception for statutes enacted “under the Elections Clause.” Arizona v. Inter Tribal Council of
Arizona, Inc., 570 U.S. 1, 13-15 & n.6 (2013). But the Title 39 non-election provisions are enacted under the Postal
Clause.

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Contrast the Title 39 provisions here with the two times when Congress gave limited

power concerning election administration to federal officials. Both times Congress did so in

crystal clear language in an election statute, and later repealed that authority. In 1871, Congress

gave federal “supervisors of election” in larger cities and towns in House elections authority to

“verify” and sometimes make voter “lists,” inspect and scrutinize “the manner in which voting is

done,” and “prevent fraudulent registration and fraudulent voting” and “fraudulent conduct on

the part of any officer of election.” 16 Stat. 433, 434-36, 438 (1871). However, in 1894,

Congress repealed all these statutory provisions. 28 Stat. 36, 36-37 (1894).

In 1965, Sections 6 and 7 of the original VRA authorized, in certified jurisdictions, the

federal Civil Service Commission (CSC) to appoint examiners to place a person “on a list of

eligible voters” and “transmit” that partial list to state officials. 79 Stat. 437, 440 (1965).

Section 9(b) gave the CSC authority to “prescribe[] . . . regulations” concerning the partial

“eligibility lists.” Id. at 441. In 2006, however, Congress repealed §§6, 7, and 9 of the original

VRA. 120 Stat. 577, 580 (2006).

The Court relied on “the history” of the 1894 repeal to reject shoehorning into a non-

election federal statute the kind of federal authority that had been withheld by Congress. See

Gradwell, 243 U.S. at 479-85. Yet such shoehorning is what the USPS ballot rule attempts to do

through its illegal use of Title 39 non-election provisions to alter state election practices.

B. The Major Questions Doctrine.

The District Court also properly applied the major questions doctrine, App. 29a, which

independently requires clear authorization. That doctrine applies to important political issues,

not just economic ones. See West Virginia, 597 U.S. at 722 (relying on an assisted suicide case,

Gonzales v. Oregon, 546 U.S. 243 (2006)). Under the major questions doctrine, courts “presume

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that Congress intends to make major policy decisions itself, not leave these decisions to

agencies.” West Virginia. 597 U.S. at 723 (quotations omitted). This reflects “both separation of

powers principles and a practical understanding of legislative intent.” Id. at 723-24. “[A]

reasonable interpreter would not expect Congress to pawn . . . a big-time policy call . . . off to

another branch.” Learning Resources, Inc. v. Trump, 607 U.S. 229, 246 (2026) (plurality

opinion) (“Learning Resources Plurality”) (cleaned up). The decision as to what is a major

question also reflects “constitutional structure and common sense.” Id. at 243.

“[T]he electoral process” is “of the most fundamental significance under our

constitutional structure.” Bost v. Illinois State Board of Elections, 607 U.S. 71, 77

(2026)(quotations omitted). Elections are “preservative of all rights,” including economic

liberty. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

At the Constitutional Convention, Madison explained that the Constitution gave election

powers to Congress because “the influence of the Crown was most dangerously exerted” on

elections. 2 The Records of the Federal Convention of 1787, at 204 (M. Farrand ed., 1911). In

particular, the founding generation knew the lessons of the Glorious Revolution and the English

Bill of Rights of 1689. A critical reason for both was that King James II and his agents

attempted to subvert elections for Parliament by exercising control concerning election practices

and voting. See Harper v. Hall, 866 S.E.3d 393, 434-37 (N.C. 2023) (reviewing history). The

Court has relied on the history of the Glorious Revolution and the English Bill of Rights in

interpreting both our Constitution and limits on federal executive power. See, e.g., United States

v. Rahimi, 602 U.S. 680, 694 (2024); Trump v. Barbara, 146 S. Ct. 2438, 2458 (2026); Learning

Resources, Inc. v. Trump, 607 U.S. at 298 (Gorsuch, J., concurring).

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The Elections Clause made the power over federal elections a core congressional power.

“There is no major questions exception to the major question doctrine.” Learning Resources

Plurality, 607 U.S. at 248.

Applicants nonetheless argue that the election issues in this case are not important

enough for the major questions doctrine. This is wrong for at least six reasons. First, voter lists,

voting systems, the extent of absentee voting, and election administration comprise the heart of

election regulation and determine who votes and how they vote. That is why HAVA, NVRA,

and the VRA set the limits of federal regulation for these areas and preserved the remaining

authority to the States. See Part I, supra. These federal statutes demonstrate that the USPS

ballot rule arrogates an important policy choice and “[t]he basic and consequential trade-offs

involved in such a choice are ones that Congress would likely have intended for itself.” West

Virginia, 597 U.S. at 730.

This fundamental policy choice here goes to the very structure of our republic. As the

HAVA Report stated, supra, at 6, our federalist election structure, designed by the Elections and

Electors Clauses, fosters both the reality and appearance of election integrity by decentralizing

election rules and their administration. Otherwise, an Administration’s control concerning voter

lists, voting systems, absentee balloting, and election administration, via the USPS, could be

exercised to skew elections to favor either of the two major parties. “[I]n the law, what is sauce

for the goose is normally sauce for the gander.” Heffernan v. City of Paterson, 578 U.S. 266,

272 (2016). In our tit-for-tat world, for example, a future Democratic President could order the

USPS to restrict delivery of mail-in ballots to and from rural counties because they have higher

mail theft rates and higher USPS costs.

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Second, the errors, disenfranchisement of voters, and intrusion on state sovereignty would

be amplified exponentially because the massive efforts required are coming on the eve of an

election. For one example, the USPS will reject an entire batch of upwards of 20,000 ballots if

one scanned ballot barcode is not on the list. California v. USPS, ECF 119, at 4; id., ECF 115, at

19-20. The haste and zeal of Applicants both confirms the political importance of the USPS

ballot rule and magnifies the rule’s negative impacts. As the 2013 Obamacare portal nightmare

reminds us, even with the best intentions, a new federal government portal will be riddled with

problems and errors. The inevitable widespead errors here would deprive citizens of voting

rights without any provision in the rule requiring notice to a voter or an opportunity for the voter

to fix or challenge an omission or mistake. Large errors are particularly guaranteed because the

USPS has no expertise or history concerning voter lists, modifying voting systems, restricting

absentee balloting, or election administration. See West Virginia, 597 U.S. at 730 (relying on an

agency’s lack of expertise as support for applying the major questions doctrine); Biden v.

Nebraska, 600 U.S. 477, 518 (2023)(Barrett, J., concurring) (“Another telltale sign that an

agency may have transgressed its statutory authority is when it regulates outside its

wheelhouse.”).

Third, having the USPS verify envelopes against voter lists also would slow down the

delivery of mail-in ballots to voters. This shortens the time determined by state legislatures that

voters have to consider and submit their choices for federal, state, and local offices.

Fourth, the major questions doctrine prevents using executive branch action as a response

to unadopted legislation. See West Virginia, 597 U.S. at 731-32; Biden v. Nebraska, 600 U.S. at

503 & n.8. The USPS ballot rule came after numerous failed attempts to enact new election

statutes that would expressly expand federal regulation and administration concerning voter lists,

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voting systems, and restricting absentee balloting. See SAVE Act, H.R. 8281, 118th Cong.

(2024); SAVE Act, H.R. 22, 119th Cong. (2025); SAVE America Act, H.R. 7296, 119th Cong.

(2026); Make Elections Great Again Act, H.R. 7300, 119th Cong. (2026); see also Vote By Mail

Tracking Act, H.R. 5658, 118th Cong. (2023) .

Fifth, the USPS ballot rule results from a presidential directive at the highly-publicized

center of the President’s agenda. This confirms the political importance of the new ballot rule.

To argue otherwise asks this Court to “exhibit a naivete from which ordinary citizens are free.”

Diamond Alternative Energy, LLC v. EPA, 606 U.S. 100, 122 (2025)(quotations omitted).

Sixth, the USPS ballot rule would be the very large camel’s nose under the tent. If the

Court enabled USPS’s use of non-election statutes to alter the important state election practices

here, every election cycle numerous federal agencies in every administration will scour the non-

election statutes in the gargantuan U.S. Code to find every potential hook to tilt or control every

biennial federal election. The inevitable legal challenges each election cycle would drag federal

courts “over and over again” into “one of the most intensely partisan aspects of American

political life.” Rucho v. Common Cause, 584 U.S. 684, 718-19 (2019). Rather than creating

“such an extraordinary and unprecedented” departure, id. at 719, for both the federal executive

and judicial branches, this Court should keep those evils sealed in the box in which the Elections

and Electors Clauses put them 238 years ago by empowering only Congress to alter state election

practices.

Federal election statutes have regulated federal elections since 1791, see 1 Stat. 239

(1792), regulated aspects of election administration since 1871, see supra, at 15, and aspects of

voting by mail since 1942, ch. 561, §9, 56 Stat. 753, 756 (1942). Today, in hundreds of election

statutes, Congress has carefully chosen when to regulate elections, when to preserve regulation

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for the States, and never to delegate altering state election practices to USPS. See 52 U.S.

§§10101-30146; 2 U.S.C. §§1-9, 381-96; 3 U.S.C. §§1-22; 18 U.S.C. §§592-611. The Court

should rule that Congress has not hidden for decades the elephant of USPS authority to alter state

election practices concerning voter lists, delivering paper ballots to voters, absentee balloting,

and election administration in a non-election mousehole in Title 39.

CONCLUSION

The Court should deny the Application.

September 8, 2026 Respectfully submitted,

Richard D. Bernstein
1875 K Street NW, Suite 100
Washington, DC 20006
(301) 775-2064
rbernsteinlaw@gmail.com
Counsel of Record

Nancy A. Temple
Katten & Temple, LLP
33 N. Dearborn St., Suite 1800
Chicago, IL 60602
ntemple@kattentemple.com

Counsel for Amicus Curiae
The Society for the Rule of Law