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Brief of amicus curiae Whistleblower Aid in opposition to the application for a stay, No. 26A305

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No. 26A305
________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________

UNITED STATES POSTAL SERVICE, ET AL., APPLICANTS
v.
STATE OF CALIFORNIA, ET AL.

______________

DONALD J. TRUMP, ET AL., APPLICANTS
v.
LEAGUE OF WOMEN VOTERS OF MASSACHUSETTS, ET AL.

________________________________________

BRIEF OF AMICUS CURIAE WHISTLEBLOWER AID IN OPPOSITION TO
THE APPLICATION FOR A STAY

________________________________________

JOSHUA PERRY
Counsel of Record
E. DANYA PERRY
ELIZABETH TULIS
PERRY LAW, LLC
445 Park Avenue, 7th Floor
New York, NY 10022
(212) 251-2619
jperry@danyaperrylaw.com

Counsel for Amicus

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TABLE OF CONTENTS

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

IDENTITY AND INTEREST OF AMICUS .................................................................. 1

STATEMENT ................................................................................................................. 2

SUMMARY OF ARGUMENT ..................................................................................... 13

ARGUMENT ................................................................................................................ 15

I. The Disclosure confirms that the Rule regulates elections. ............................. 15

A. The Rule gives the Postal Service a veto over the transmission of mail
ballots..................................................................................................................... 15

B. Nothing in the Postal Service’s prior practice resembles this wholesale
batch rejection. ...................................................................................................... 16

C. The Disclosure disproves the premise behind the Government’s
nonmailability argument. ..................................................................................... 18

II. The Disclosure shows that the Government faces no irreparable harm from
the injunction. ........................................................................................................... 19

A. A stay would not cure the Government’s claimed harm, because the systems
do not yet work. ..................................................................................................... 19

B. The Government’s own choices created any time pressure here. ................. 20

III. The Disclosure shows that the public interest and the balance of equities
weigh against a stay. ................................................................................................ 21

A. The Disclosure substantiates the District Court’s harm findings. ............... 22

B. The Government’s conduct weighs against it. ............................................... 24

CONCLUSION............................................................................................................. 25

---

TABLE OF AUTHORITIES

Page(s)

Cases

Benisek v. Lamone,
585 U.S. 155 (2018) ................................................................................................... 20

Cuomo v. NRC,
772 F.2d 972 (D.C. Cir. 1985) ................................................................................... 20

Dep’t of Educ. v. California,
604 U.S. 650 (2025) ............................................................................................. 20, 21

Keystone Driller Co. v. Gen. Excavator Co.,
290 U.S. 240 (1933) ................................................................................................... 24

League of Women Voters of Mass. v. Trump,
No. 1:26-cv-11549, Dkt. 201 (D. Mass. Aug. 25, 2026) ...................................... 13, 24

League of Women Voters of Mass. v. Trump,
No. 1:26-cv-11549, Dkt. 218 (D. Mass. Aug. 27, 2026) ............................................ 25

Learning Resources, Inc. v. Trump,
607 U.S. 229 (2026) ................................................................................................... 17

Nken v. Holder,
556 U.S. 418 (2009) ............................................................................................. 20, 24

Purcell v. Gonzalez,
549 U.S. 1 (2006) ....................................................................................................... 22

Trump v. California,
No. 26A124, 2026 WL 2473573 (Aug. 24, 2026) ...................................................... 19

West Virginia v. EPA,
597 U.S. 697 (2022) (Gorsuch, J., concurring) ......................................................... 17

Constitution and Statutes

U.S. Const. art. I, § 4, cl. 1........................................................................................... 16

iii

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Other Authorities

11A WRIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE § 2948.1 (3d ed. Apr.
2026) .......................................................................................................................... 20

Ballot Mail for Federal Elections,
91 Fed. Reg. 54966 (Aug. 26, 2026) .................................................... 2, 4, 5, 7, 12, 18

Eric Katz, Postal Officials Say Trump’s Mail-Ballot Push Will Create Widespread
Errors, NOTUS (Aug. 27, 2026), https://perma.cc/2NW4-8KU4........................ 7, 10

Exec. Order No. 14399, “Ensuring Citizenship Verification and Integrity in Federal
Elections,” 91 Fed. Reg. 17125 (Mar. 31, 2026) .............................................. passim

H.R. Rep. No. 107-329 (2001) ...................................................................................... 18

Jen Fifield, New Mail Voting Rules Moved Forward Despite USPS Officials’
Concerns About Mass Disenfranchisement, ProPublica (Sept. 2, 2026),
https://perma.cc/PPV3-NN4W ............................................................................... 3, 6

John Hanna, Trump’s Attacks on Mail Balloting and Concerns Over Delays Turn
Midterms Spotlight on Postal Service, Associated Press (July 30, 2026),
https://perma.cc/Z6L4-SFJD.................................................................................... 12

Letter from Sen. Richard Blumenthal to Postmaster General Steiner (Aug. 31,
2026), https://perma.cc/377A-P85V ............................................................................ 2

Statement from Postmaster General David Steiner Regarding Concerns About
Ballot Mail for Federal Elections (Sept. 4, 2026) .................................................... 10

United States Postal Service, Election Mail, https://perma.cc/K2ED-JFEQ
(last visited Sept. 8, 2026) ........................................................................................ 1

USPS Office of Inspector Gen., Audit Rep. No. DR-AR-18-001, Package Delivery
Scanning—Nationwide 12–14 (Oct. 27, 2017), https://perma.cc/HW3G-XJML ...... 7

Yunior Rivas, USPS Says Mail Ballot Portal May Launch Next Week After DOJ
Fumbles Questions in Court, Democracy Docket (Sept. 3, 2026),
https://perma.cc/9B5V-4GLT .................................................................................... 11

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IDENTITY AND INTEREST OF AMICUS 1

Amicus Whistleblower Aid is a nonpartisan, nonprofit legal services

organization dedicated to supporting and protecting whistleblowers for the public

interest in pursuit of a robust, resilient, and thriving democracy. Whistleblower Aid

provides pro bono representation to government and private-sector workers who

report and expose wrongdoing—safely, lawfully, and responsibly. 2

Whistleblower Aid represents an anonymous federal official (the

“Whistleblower”) who has direct knowledge of the potentially catastrophic problems

with the United States Postal Service’s (“USPS” or “Postal Service”) new procedures,

policies, and information technology tools (together, the “systems”) for handling

outgoing federal election ballot mail (“ballot mail”). 3 Those systems, including the

USPS’ “Federal Ballot Mail Portal” and related information technology, are supposed

to be used to implement 39 C.F.R. pt. 111, the rule promulgated by USPS under

Section 3 of Exec. Order No. 14399, “Ensuring Citizenship Verification and Integrity

in Federal Elections,” 91 Fed. Reg. 17125 (Mar. 31, 2026) (“Executive Order” or

“Order”).

1 Under Supreme Court Rule 37.6, amicus curiae states that no counsel for a party authored this brief

in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund
the preparation or submission of this brief. No person other than the amicus curiae or its counsel made
a monetary contribution to its preparation or submission.
2 For more information on amicus, see Whistleblower Aid, https://whistlebloweraid.org/ (last visited

Sept. 8, 2026).
3 USPS defines “ballot mail” as any mailpiece sent to or from an authorized election official containing

a live ballot that may be used to cast a vote in an election. USPS, Election Mail, https://perma.cc/K2ED-
JFEQ (last visited Sept. 8, 2026). Outgoing ballot mail refers to blank ballots mailed to voters.

---

The Whistleblower cannot come forward publicly for fear of reprisal. They

speak now through amicus, which compiled the Whistleblower’s Disclosure and filed

it with U.S. Senator Richard Blumenthal, Ranking Member of the Permanent

Subcommittee on Investigations, on August 30, 2026. 4 That Disclosure was then

submitted to the Office of U.S. Representative Robert Garcia, Ranking Member of the

House Committee on Oversight and Government Reform. The Disclosure was also

provided to the Office of the Inspector General of the U.S. Postal Service.

The Whistleblower must remain anonymous, but they have the expertise and

proximity to speak authoritatively on the facts adduced in the Disclosure. Because of

its relationship with the Whistleblower, amicus is uniquely positioned to provide

critical information on both the design and the functioning of the systems that were

built in response to the Rule, whose legality is before the Court. Neither amicus nor

the Whistleblower has any stake here beyond an interest in seeing that the Court

decides this application on an accurate understanding of the systems it is being asked

to switch on.

STATEMENT

The Whistleblower has come forward with direct and detailed knowledge of the

systems the United States Postal Service developed to implement the Order and the

Postal Service’s related final rule, Ballot Mail for Federal Elections, 91 Fed. Reg.

54966 (Aug. 26, 2026) (to be codified at 39 C.F.R. pt. 111) (the “Rule”). The

4 Letter from Sen. Richard Blumenthal to Postmaster General Steiner Appending Disclosure (Aug. 31,

2026), https://perma.cc/377A-P85V (hereafter, the “Disclosure”).

---

Whistleblower knows nonpublic details about the systems’ intended functioning—

and about the chaotic design process that almost guarantees malfunctioning.

On August 30, 2026, on the Whistleblower’s behalf, amicus transmitted a

lawful Disclosure describing those systems to Senator Richard Blumenthal, the

Ranking Member of the Senate Permanent Subcommittee on Investigations. Senator

Blumenthal forwarded the Disclosure to the Postmaster General the next day. The

Disclosure reveals new facts, but it does not stand alone. Instead, it is amply

corroborated by the public record, including recent reporting on the systems’ design

and build process. 5

Three relevant themes emerge from the Disclosure. First, even if the new

systems work exactly as designed, they will deny ballots to eligible voters. The

systems were designed with a pair of chokepoints: one that can block ballots from

even being brought to USPS facilities, and another that can reject an entire mailing—

with tens of thousands of ballots or even more—when a barcode on a single sampled

envelope fails to properly scan. Second, the systems will almost certainly fail, because

they are the product of a rushed, secretive, and chaotic development process. The

systems are largely untested and, as of the hearing below, still inoperable. Third, the

systems were built in defiance of court orders, and the Postal Service appears to have

misled the courts and Congress about its compliance with those orders.

I. Overview of the systems designed to implement the Order and the Rule.

5 See generally Jen Fifield, New Mail Voting Rules Moved Forward Despite USPS Officials’ Concerns

About Mass Disenfranchisement, ProPublica (Sept. 2, 2026), https://perma.cc/PPV3-NN4W.

---

The Order’s Section 3 directed the Postmaster General to propose a rule under

which States would give the Postal Service lists of voters approved to vote by mail;

the Postal Service, in turn, would furnish States with lists of the voters “enrolled”

with the Postal Service; and the Postal Service would “not transmit the ballot of any

voter” not so enrolled. App. 2a–3a.

The Rule purports to carry out that directive. Under the Rule, every federal-

election ballot sent by mail must be enclosed in an envelope bearing a unique

Intelligent Mail barcode (“IMb”) and the official Election Mail logo; state election

officials must submit their envelope designs to the Postal Service for pre-approval;

election officials must upload the name, address, and barcode of every voter receiving

a mail ballot to a new Postal Service database, the Federal Ballot Mail Portal; and

the Postal Service must verify, before accepting any outbound ballot mailing, that the

barcodes on the envelopes match the data in the Portal. 91 Fed. Reg. 54990–91; App.

7a–8a. If the barcodes on a mailing do not match, the Postal Service will not mail it.

91 Fed. Reg. 54991; App. 8a.

To implement that last requirement, the Postal Service undertook to roll out

an entirely new set of information technology systems—the kind of massive project

that ordinarily takes nine months to a year, or even longer, to design, build, test, and

bring online. Disclosure ¶ 14. The Postal Service needed to build the Portal; it needed

to establish connections between the Portal and existing bulk-mail systems, so that

the manifest a local election official uploads for each batch of ballots can be verified

against the Portal’s data before the official brings the batch to a post office; and it

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needed a procedure, and scanning equipment and protocols, for Postal Service clerks

to perform a second round of verification, checking physical envelopes against the

data in the Portal. Id. ¶¶ 3, 11–13. 6

II. The verification procedures are designed to disenfranchise lawful
voters.

Under the Rule, state election officials must upload into the Portal the name,

address, and unique IMb associated with every voter who will receive a mail ballot.

91 Fed. Reg. 54991. Per the Postal Service’s plans, as revealed by the Disclosure,

there is then an initial verification step that appears nowhere in the text of the Rule:

Before election officials can even bring outgoing bulk mailings of ballots to a postal

facility for mailing, they must upload a manifest with the names of the intended

recipients, and match that manifest with the data in the Portal. Disclosure ¶¶ 11–12.

A mismatch means the ballots do not pass Go. Id.

The second verification point occurs when election officials bring a batch of

outgoing mail ballots to a postal facility. There, Postal Service employees are to scan

barcodes and confirm that they match the Portal’s data. 91 Fed. Reg. 54981. The Rule

describes this step as “straightforward.” Id. It says that “[s]canning a barcode

generally takes less than a minute per mailpiece,” that “the verification process

should take no more than a few hours for larger mailings,” and that a mailing which

fails may be corrected and “resubmit[ted].” Id. 54981, 54991. Asked in the rulemaking

6 The Whistleblower speaks to the verification process and the related systems, but does not and cannot

speak to envelope design review, to the States’ ability to comply, or to anything outside the Postal
Service.

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what share of ballots it expected to reject, the Postal Service “decline[d] to conduct,

publish, or otherwise disclose” any “anticipated ballot-rejection rate.” Id. 54988.

Three planned features of this second verification step do not appear in the

Rule. The Whistleblower knows them from direct knowledge of the work of building

the implementation systems. Disclosure ¶ 26. Together, those three features mean

that systems operating exactly as intended, with no software failure of any kind, will

reject entire batches of ballots if they find even a single mismatch. And batches can

be enormous. The Disclosure describes batches of tens of thousands of ballots,

Disclosure ¶ 3(c), and mailings can be far larger than that: Maricopa County, Arizona,

“often sends out more than 2 million ballots at a time in its initial mailing.” 7

First, the verification standard is zero percent failure: a batch is deemed non-

compliant if a single envelope fails the barcode verification. Disclosure ¶¶ 3, 26–27.

Second, the unit of rejection is the batch, not the ballot. When one sampled barcode

fails to scan, or scans but is not found in the uploaded Portal data, the Postal Service

will reject the entire mailing. Id. ¶ 27. The State is expected to take the whole batch

back, locate and cure the single ballot, upload a new batch manifest, and restart the

process. Id. ¶¶ 28, 35. The Postal Service’s systems and process, as designed and built,

do not allow curing a batch at the postal facility. And as Senator Blumenthal observed

in forwarding the Disclosure, “there is no clear process by which state election

officials or voters themselves can challenge the rejection,” so voters “may not even be

aware that their ballots have been rejected, or were part of a rejected batch, until it

7 Fifield, supra, note 5.

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is too late to secure an alternative ballot or vote in person.” 8 Third, the verification

requires sampling. Postal Service clerks are to scan a fixed number of pieces from

each batch, on a schedule that as of the final week before the planned September 1

launch called for 15 sampled pieces from a batch under 1,000; 350 from a batch of

1,000 to 10,000; and 400 from a batch above 10,000. Disclosure ¶ 32. Those numbers

were still provisional in the week before that planned launch. Id. ¶ 33. 9

Barcode scanning is not error-free, and the Postal Service knows it. Its

Inspector General audited package scanning in 2017 and found that one scanner

issue contributed to errors in five percent of audited scans, with additional failures

caused by signal obstruction. Disclosure ¶ 31 & n.25. 10 Information available to the

Whistleblower also appears to reflect concern that some of the scanners to be used to

validate ballot samples have connectivity and docking limitations, so that not all

sampling can occur in real time. Disclosure ¶ 31. A Postal Regulatory Commission

8 Disclosure at 3. The Rule provides only that mailers “will be informed of the escalation procedures

should they decide to challenge a rejection.” 91 Fed. Reg. 54981. The District Court found that the
Rule “excludes any detail as to how the USPS intends to handle States’ disagreement with the USPS’s
feedback” and that there is an “absence of an appeals or escalation process.” App. 38a. The Postal
Service has also “declined to publish a contingency plan for if the Ballot Portal is not operational or
user-error impedes the process.” App. 41a.
9 The Rule does not mention sampling, though it assumes it. 91 Fed. Reg. 54981. Two people who

attended internal Postal Service committee meetings on the Rule have separately described the same
design to the press: “USPS officials confirmed it was possible that one ballot with a bad barcode or
wrong voter information within the more than 2 million ballots could delay the entire mailing,” and
“[s]ome in the meetings recommended trying to limit harm to voters by not rejecting the entire batch.”
Fifield, supra, note 5.
10 USPS Office of Inspector Gen., Audit Rep. No. DR-AR-18-001, Package Delivery Scanning—

Nationwide 12–14 (Oct. 27, 2017), https://perma.cc/HW3G-XJML. That audit concerned package-
tracking scanners, not letter-mail barcodes. Amicus cites it for the proposition that the Postal Service’s
scanning equipment produces errors at measurable rates, not for a specific error rate for ballot
envelopes.

---

member with thirty-five years at the Postal Service put the point cleanly, before the

Disclosure was made: “No system works at 100% accuracy.” 11

Simple math shows that, under a zero-tolerance standard and with the Postal

Service’s planned sampling rates, rejecting batches of ballots will be the rule, not the

exception. If one piece in a hundred fails to scan, a 400-piece sample—the prescribed

sample size for a batch of more than 10,000—will virtually always fail.

The systems described in the Disclosure diverge radically from Postal Service

precedent. In prior elections, officials would enter a mailing into the Postal Service’s

existing bulk-mail systems and bring it to a postal facility, where checks were

directed at confirming postage and mail class—not at stopping the mailing.

Disclosure ¶¶ 9–10. Historically, where bulk mailing checks involved sampling, some

have tolerated a twenty-percent failure rate. Id. ¶ 10 & n.14. Amicus’ review of the

Postal Service’s published acceptance procedures found no other process or policy that

required rejecting an entire mailing because of a single failed scan. Id. ¶¶ 10, 29 &

n.24.

III. The systems are the product of a rushed, secretive, and chaotic
process.

If the systems work as intended, then, many legitimate ballots will never even

be sent to legal voters. But the systems are unlikely to work even as well as intended,

because the design and build process was rushed and chaotic—and the testing process

was virtually nonexistent. None of the design choices described above was disclosed

11 Eric Katz, Postal Officials Say Trump’s Mail-Ballot Push Will Create Widespread Errors, NOTUS

(Aug. 27, 2026), https://perma.cc/2NW4-8KU4 (quoting Commissioner Thomas Day).

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in the rulemaking. They emerged from a development process that ran on oral

instruction, without written requirements, on a schedule driven by an unrealistic

launch date rather than by the project’s own complex demands.

The Executive Order issued on March 31, 2026, and directed a final rule by

July 29. App. 2a. The Postal Service proposed the Rule on June 2. App. 4a. Regular

meetings of the development teams responsible for building the Federal Ballot Mail

Portal and the related verification systems did not begin until about June 15.

Disclosure App. A ¶ a. Work stopped on or about June 25, when employees were told

that a court had enjoined the Order’s implementation, and resumed on or about July

29. Id. ¶ 37. On or about August 6, Postal Service leadership set the Portal’s launch

date for September 1. Id. App. A ¶ l. So there were only about eleven weeks, from the

first development meeting to launch, to build and test a system designed to handle

every mail ballot in the country. See Disclosure ¶ 4.

Developers had only a fraction of the time it should take to design and build

systems like these. The Disclosure explains that an ordinary development cycle for a

project of this complexity at the Postal Service runs nine months to more than a year;

routine projects involving software patches or price changes are usually scheduled to

take about eight months. Disclosure ¶ 14. A Postal Regulatory Commissioner said

the same thing publicly, on August 27: the Postal Service “typically would spend at

least a year rolling out a new system like the one that will be required for ballot

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screening, hold a conference for all impacted jurisdictions and provide training to

8,000 election boards.” 12

The Government’s self-imposed time pressure showed in defective or

nonexistent work processes. Leadership refused to give developers written

specifications for the systems they were building, leaving them to “glean

requirements from opaque comments at meetings.” Disclosure App. A ¶¶ k, m.

Technical requirements were “moving target[s],” changed from one day to the next

and still incoming on August 21, eleven days before the projected launch date. Id.

App. A ¶¶ b, n, r. Basic questions went unresolved, including whether a given

validation problem was a “warning,” which lets a ballot through, or an “error,” which

stops it. Id. App. A ¶ k. Teams worked in isolation, so that components did not fit

together when combined. Id. App. A ¶ p. One example: the system was meant to have

a single toggle to turn the new verification process on or off. In the final week before

September 1, the teams discovered that two groups had each built their own. It was

too late to fix, so the final build has two toggles, and both must be flipped to turn the

system off. Id. ¶ 18. 13

12 Katz, supra, note 11.The Postmaster General has since acknowledged “the compressed project
timeline” and “an accelerated development schedule.” Statement from Postmaster General David
Steiner Regarding Concerns About Ballot Mail for Federal Elections (Sept. 4, 2026) (“Steiner
Statement”).
13 Questions as basic as the file format States should use to upload voter lists, and whether to supply

mailing or residential addresses, remained open in the first week of September. Fifield, supra, note 5.
As of the September 3 hearing, the District Court could not determine “whether States will have the
ability to migrate data from their electronic voter registration systems . . . or whether they will have
to manually enter each voter’s information.” App. 39a.

---

Testing was one casualty of the chaos. Normally, the Postal Service will test

each component of a system; test the assembled system internally; move it to a

customer acceptance testing environment where outside users can try it; and only

then release it. Disclosure ¶ 16. Here the components were not sufficiently tested

before assembly, and the complete systems were first compiled in the customer

testing environment the week of August 24. Id. The schedule left four days for

customer testing—against forty-seven set aside for another Postal Service project the

Whistleblower is aware of. Id. ¶ 17; id. App. A ¶ t. By August 22, the developers had

concluded that there was no time left to test, and that the Portal would crash if it

were released that day. Id. App. A ¶ s. When a team member raised the lack of testing

with a senior official, the answer was dogma, not a plan: “[w]e cannot fail,”

“everything had to work perfectly,” and “there was no other choice.” Id. App. A ¶ g.

The systems failed. On September 3, the Postal Service told the District Court

that the Portal was not yet operational and would be made available “sometime next

week.” App. 38a, 46a (citing Monteith Decl. ¶ 3). That same day, Government counsel

could not say whether the systems were ready to go. 14 The Government’s own

application acknowledges that even if a stay issues, the Postal Service will need more

time—“a brief period,” according to the Government—before the systems can operate,

because its employees have not been trained to conduct the verification. Appl. 30.

14 See Yunior Rivas, USPS Says Mail Ballot Portal May Launch Next Week After DOJ Fumbles

Questions in Court, Democracy Docket (Sept. 3, 2026), https://perma.cc/9B5V-4GLT (reporting that
counsel could not make “specific representations” about readiness and that the court asked: “We’ve
been here for a week and you can’t tell me the government is ready to go?”).

---

IV.The systems were built in defiance of court orders and contrary to the
Postal Service’s representations about compliance.

The Postal Service’s slapdash process was driven entirely by the desire to have

the systems in place for the November 3, 2026, federal elections. There could be no

other reason for setting a do-or-die September 1 launch date; the first ballots for that

election went into the mail on September 4. Appl. 29–30. To meet that self-imposed

deadline, the Postal Service was apparently willing to defy federal court orders.

When it published the Rule, the Postal Service promised that it would “not

take actions to implement the rule specifically for the 2026 election unless and until

the government obtains relief” from injunctions. 91 Fed. Reg. 54966; App. 7a n.10. By

then, the September 1 launch directive was two weeks old, and it appears that the

assembled system was precipitously pushed into (all-too-brief) customer testing three

days later, despite the Postal Service’s promise to comply with the injunctions.

Disclosure App. A ¶¶ l, t.

The same pattern preceded the Rule. In July, with an injunction in force, the

Postal Service told Senators that it was abiding by the court rulings that had halted

the Executive Order. At the same time, the president of the American Postal Workers

Union reported that the Postal Service’s information-technology teams were working

on the Portal “behind the scenes,” and the Postal Service declined to say whether

work related to the Order was proceeding. 15

15 John Hanna, Trump’s Attacks on Mail Balloting and Concerns Over Delays Turn Midterms Spotlight

on Postal Service, Associated Press (July 30, 2026), https://perma.cc/Z6L4-SFJD.

---

The Whistleblower’s experience matches the union’s account. The Disclosure

shows that work resumed on or about July 29 without any explanation of what had

changed, and without word of any order having been lifted. Disclosure ¶ 37. Work

continued through the injunction entered August 11 and after the temporary

restraining order of August 27, which barred the Postal Service from taking “further

preparatory steps” toward the enjoined verification process for this election. Id. ¶¶ 5,

39.

The District Court has already found that the Postal Service fell short of

compliance. On August 25, addressing the Postal Service’s completion of the

rulemaking while the August 11 injunction expressly barred “initiating or completing

rulemaking,” the court found that “Defendants violated the preliminary injunction,”

that they “cannot contend that they misunderstood the scope of the court’s order,”

and that they had “feigned complete compliance” with the earlier injunction in their

July 27 application to this Court, where they described the agencies as “unable to

take steps to carry out the Executive Order.” Memorandum and Order at 2–3, League

of Women Voters of Mass. v. Trump, No. 1:26-cv-11549 (D. Mass. Aug. 25, 2026), Dkt.

201 (hereafter, “Dkt. 201”).

SUMMARY OF ARGUMENT

The Disclosure speaks to every Nken factor, showing why the Government

cannot meet its heavy burden to win an election-altering stay.

First, the Government is not likely to succeed on the merits. Its argument rests

on the mischaracterization that the Rule is a routine mail regulation because it

---

imposes “modest envelope-design and addressee-information requirements.” The

Disclosure shows what the Rule does as built. It places two federal checkpoints

between a State’s ballots and its voters, applies a zero-tolerance standard at the

second, and will reject an entire mailing—tens of thousands of ballots—if a single

sampled envelope fails to scan. Nothing in the Postal Service’s practice, and nothing

in the Government’s analogies to cremated remains, replica explosives, or postage,

works that way. An agency that can unilaterally block mail-in voting for thousands

of indisputably legal voters is regulating the manner of an election, a power the

Constitution assigns to the States and Congress and that Congress has never

delegated to the Postal Service.

Second, the Government faces no irreparable harm from the injunction. The

Disclosure shows that the injunction is not what prevents implementation: the

systems were not operational as of September 3, the day of the hearing below; were

built in about eleven weeks with four days of testing; and were expected by their own

developers to fail. The Government concedes that even after a stay it cannot operate

its systems until employees are trained. To the extent the calendar now forecloses

implementation for November 2026, the Government set the calendar, and harm of a

party’s own making “is not properly the subject of inquiry on a motion for stay.”

Third, the public interest and the equities weigh against a stay. The

Government dismisses the District Court’s harm findings as speculation by officials

without knowledge of the Postal Service’s plans. The Disclosure is that knowledge,

and it confirms the District Court’s findings. A stay would make mandatory, in the

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middle of the election season, a not-yet-operable process designed to return

conforming ballots in bulk. And the Government asks the Court to stay an injunction

it has been found to have violated, on assurances of compliance the District Court

found feigned. That is not a record on which equity grants extraordinary relief.

ARGUMENT

I. The Disclosure confirms that the Rule regulates elections.

The Government’s merits argument recharacterizes game-changing voting

barriers as simple logistics. The Government does not contend that Congress

delegated any Elections Clause power to the Postal Service. It says that none was

needed, and it accepts that the constitutional question follows the statutory one: “if

the Postal Service’s rule is authorized by Congress, then that necessarily means there

is no Elections Clause . . . problem.” Appl. 26. But the Disclosure shows that the Rule,

as implemented, is beyond the Postal Service’s general authority over the mail: it is

not just a “modest” design regulation. Absent statutory authority, then, and on the

Government’s own account, the Rule is both ultra vires and unconstitutional.

A. The Rule gives the Postal Service a veto over the transmission of mail
ballots.

The Postal Service’s implementation of the Rule inserts two federal

chokepoints on outgoing mail ballots. At the first, the manifest for each batch of

ballots is compared against the data in the Federal Ballot Mail Portal; a batch that

does not return “a 100% match” cannot be brought to a postal facility at all. Disclosure

¶¶ 12 & n.16, 23. At the second, when local election officials bring ballots to postal

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facilities, clerks scan a sample of envelopes at the counter and compare them to the

Portal’s data. Disclosure ¶¶ 11–13, 23, 25.

The Disclosure supplies what the Rule omits: at the second chokepoint, the

standard is zero tolerance, and the unit of rejection is the batch. If one sampled

envelope fails to scan, or scans but is not found in the Portal, the Postal Service stops

scanning and rejects the whole mailing, which may hold tens of thousands of ballots.

Disclosure ¶¶ 3(c), 26–28, 32. There is no provision for cure at the counter: state

election officials must start over. Id. ¶¶ 3(c), 28, 35. The voters whose ballots were

not sent may not learn that they were returned until it is too late to vote another way.

Disclosure at 3; see supra, at 6–7.

An agency empowered to decide wholesale whether a State’s entire batch of

ballots leaves the building—even when almost all of those ballots are indisputably

compliant—is deciding whether States can conduct voting by mail. That is not mail

regulation; it is regulating the manner in which States hold their elections, a power

reserved by the Elections Clause to Congress and the States. U.S. Const. art. I, § 4,

cl. 1.

B. Nothing in the Postal Service’s prior practice resembles this
wholesale batch rejection.

The Government argues, by defective analogy, that the Rule merely executes

the authority granted USPS by Congress. According to the Government, the Postal

Service may prescribe envelope standards for ballots just as it prescribes packaging

and handling rules for cremated remains and replica explosives. Appl. 16–17, 21–22,

26. The analogy fails doctrinally: the Constitution assigns the regulation of elections

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to the States and Congress, and assigns the regulation of cremated remains to no one

in particular.

The analogy fails practically, too. In every example the Government offers, the

USPS’ regulations are applied to particular pieces of mail—not to batches. Pieces that

meet the conditions are mailed; pieces that do not are returned, and the sender may

correct and resubmit. The Rule as built works differently, through a kind of guilt by

association. A ballot envelope that satisfies every Rule requirement is rejected if it

travels with one that does not, or with one whose barcode failed to read. Disclosure

¶¶ 26–27. None of the Government’s analogies has that feature, and the Government

does not claim otherwise.

The systems designed to implement the Rule diverge from the Postal Service’s

own prior practices for bulk mail. Before the Rule, ballot mail entered the mailstream

as bulk First-Class mail, and acceptance checks were directed only at postage and

mail class. Disclosure ¶¶ 9–10. Where bulk mail checks involve sampling, some

tolerate a twenty-percent failure rate. Id. ¶ 10 & n.14. And there is no precedent for

returning an entire mailing because of a single failed scan, or for checking a mailer’s

manifest against a separate list the mailer must first supply. Id. ¶¶ 10, 29.

The District Court held that exercising authority of this consequence, in this

domain, requires a clear statement from Congress. App. 29a & n.34 (citing Learning

Resources, Inc. v. Trump, 607 U.S. 229, 242–43 (2026) (plurality opinion), and West

Virginia v. EPA, 597 U.S. 697, 744 (2022) (Gorsuch, J., concurring)). The

Government’s response is to echo the Rule’s self-characterization as “modest

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envelope-design and data reporting standards.” Appl. 23. But that description does

not reflect reality. The Disclosure shows how the Rule will operate—a radical new set

of practices, not a modest tweak.

When Congress enacted the Help America Vote Act, it left election

administration authority decentralized to make it “impossible for a single centrally

controlled authority to dictate how elections will be run,” to allow local officials to

“tailor their procedures to meet the demands of disparate and unique communities,”

and to ensure that citizens “know whom to hold accountable.” H.R. Rep. No. 107-329,

at 32 (2001); App. 26a. The Disclosure describes the opposite of Congress’ vision: one

national database through which every mail ballot must pass, one rejection standard

applied to every jurisdiction, a cure process that assigns the work back to the States,

and design choices that were never disclosed in the rulemaking. 91 Fed. Reg. 54988;

Disclosure ¶ 26. An arrangement that defies express congressional intent should not

be inferred from statutory silence.

C. The Disclosure disproves the premise behind the Government’s
nonmailability argument.

The District Court held that the Rule creates a category of nonmailable matter

that Congress did not authorize. App. 30a–31a. The Government answers that the

Rule renders nothing nonmailable, because “[a]ll outbound federal-election ballot

mail that meets the Rule’s requirements will be accepted, processed, and delivered as

before.” Appl. 22.

The Disclosure shows why that premise is wrong. Under the process the

Disclosure describes, a ballot envelope that meets every requirement is rejected if

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another envelope in the same batch fails a scan. Disclosure ¶¶ 26–27, 32. Contrary to

the Government’s insistence, compliance does not ensure transmission. The

Government’s postage analogy, Appl. 22, shows the difference: the customer who pays

the postage mails the package, but the State that meets every condition of the Rule

may still find its ballots returned. A rule under which conforming mail is rejected

because of other, unrelated mail is not a condition on acceptance of the conforming

mail. It is a categorical bar, which only Congress can impose. App. 30a–31a.

II. The Disclosure shows that the Government faces no irreparable harm
from the injunction.

According to the Government, it cannot implement the Rule for the November

election without a stay: ballots are entering the mail and cannot be recalled, and this

Court has already said that reversal “would come too late for the 2026 midterms.”

Appl. 5, 29 (quoting Trump v. California, No. 26A124, 2026 WL 2473573, at *4 (Aug.

24, 2026)). The Disclosure undercuts that claim about irreparable harm, in two ways.

First, the Postal Service’s own chaotic processes, not the injunction, are what

hindered the systems’ implementation. Second, the Government itself set the

calendar that now purportedly forecloses implementation.

A. A stay would not cure the Government’s claimed harm, because the
systems do not yet work.

The Government’s irreparable harm argument assumes that, but for the

injunction, the Postal Service would be verifying ballot mailings by now. The record

says otherwise: the systems are not ready, and would not be ready even if the

injunction were lifted today. See supra, at 10–12. What remains enjoined is the

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mandatory operation of a system that, on the Government’s own showing, could not

operate on September 3, the day of the hearing below. A stay, then, would not restore

the Rule to operation. It would make mandatory a verification process that has not

been tested and that its own developers expect will fail. Disclosure App. A ¶ s. That

is not relief from harm. It is the harm the District Court found, transferred to voters.

App. 45a.

B. The Government’s own choices created any time pressure here.

Harm of a party’s own making does not support a stay. In granting the

Government’s application in Dep’t of Educ. v. California, this Court held that any

irreparable harm the respondents would suffer from declining to keep their programs

running “would be of their own making,” and that “[s]uch self-imposed costs are not

properly the subject of inquiry on a motion for stay.” 604 U.S. 650, 652 (2025) (per

curiam) (quoting Cuomo v. NRC, 772 F.2d 972, 977 (D.C. Cir. 1985) (per curiam)). A

stay “is not a matter of right, even if irreparable injury might otherwise result.” Nken

v. Holder, 556 U.S. 418, 433 (2009). And a party seeking interim relief “must

generally show reasonable diligence,” a requirement “as true in election law cases as

elsewhere.” Benisek v. Lamone, 585 U.S. 155, 159 (2018) (per curiam); see 11A

WRIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE § 2948.1 (3d ed. Apr. 2026) (“a

party may not satisfy the irreparable harm requirement if the harm complained of is

self-inflicted”).

The Disclosure shows that the Government’s claimed harm is a product of its

own self-imposed calendar. The Executive Order issued on March 31, only seven

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months before the midterm elections. App. 2a. The Postal Service did not propose a

rule until June 2, App. 4a, and the teams responsible for building the system did not

begin meeting until June 15. Disclosure App. A ¶ a. The Rule was published on

August 26, less than seventy days before the election, App. 7a & n.10, and leadership

set the September 1 launch date only on August 6. Disclosure App. A ¶ l. The

Government cannot blame anyone else for its belated decision to embark on an

ambitious project and for its months-long failure to launch. The costs of that poor

project-planning are self-imposed and “not properly the subject of inquiry on a motion

for stay.” Dep’t of Educ., 604 U.S. at 652.

The Disclosure also refutes the Government’s suggestion that the District

Court’s orders are “partly to blame” for the Postal Service’s unreadiness. Appl. 32.

Work resumed on July 29 while the June 25 injunction was in force, continued

through the injunction of August 11, and continued after the August 27 temporary

restraining order. Disclosure ¶¶ 5, 37–39. The rulemaking itself was completed while

the Postal Service was enjoined. Dkt. 201 at 3. Whatever else may be said of the

Government’s conduct, see infra Part III, it forecloses the claim that court orders are

responsible for the project’s delays.

III. The Disclosure shows that the public interest and the balance of
equities weigh against a stay.

The Government contends that the Court balances the equities only in close

cases, Appl. 6, 31, and that this is not one. Parts I and II of this Argument, supra,

refute the second point. As to the first, election cases are the setting in which this

Court has weighed the equities most heavily. Purcell rests on consequences alone:

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late changes to the rules of an election “can themselves result in voter confusion and

consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U.S. 1,

4–5 (2006) (per curiam). Purcell need not be a binding rule to matter here: it reflects

the Court’s judgment that, in the weeks before an election, the equities can make all

the difference. And here, as the Disclosure highlights, the equities and the public

interest militate in favor of keeping the injunction in place.

A. The Disclosure substantiates the District Court’s harm findings.

The Disclosure shows that allowing the Postal Service to resume

implementation of the Rule would disrupt the November 2026 election and threaten

the “disenfranchisement of millions of United States citizens who seek to vote by

mail.” App. 45a. The District Court found that compliance with the Rule for this

election would be “virtually impossible,” and that disenfranchisement of eligible

voters was “practically inevitable,” because “any minor malfunction will result in the

denial of mail ballots.” App. 44a–45a. The Government claims that the District

Court’s findings on harm rest on “speculative fears, mischaracterizations of the

record, and delays occasioned by its own improper orders,” and on the views of state

officials “who lack direct knowledge of the Postal Service’s implementation plans.”

Appl. 6, 32. But the Disclosure reflects direct knowledge, and it confirms the findings

the Government calls speculation.

The Disclosure shows that the predicted malfunction is almost inevitable—

baked into the design and rollout of the new systems. As the Whistleblower explains,

the problems with the Postal Service’s new system began with its “slapdash software

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development process as the USPS attempted to create [a] complex IT system, with

multiple points of ballot review, in a matter of weeks.” Disclosure ¶ 14; see id. ¶¶ 16–

18.

The risk that this “slapdash” process will disable mail-in voting is compounded

by the likelihood of failure in the two new ballot verification processes. Id. ¶ 22. As

shown above, the manifest verification process is a prerequisite to ballots even

reaching the post office. Id. ¶ 23. The second process is characterized by batch-

rejection, a zero-percent failure tolerance, and sampling rather than individual

checking. See supra, at 6–7. After a single failed barcode verification, the Postal

Service will stop the sample scanning and reject the entire batch of ballots. Disclosure

¶¶ 26–27. This is notwithstanding the fact that zero-percent failure is far stricter

than documented error rates for USPS scanning, see Disclosure ¶ 31 & n.25; supra,

at 8, and appears without precedent for IMb scanning. Supra, at 8. Because of the

“apparently sloppy and rushed manner in which the Federal Ballot Mail Portal and

supporting IT systems are being built,” “[p]otentially millions of American voters may

not receive their mail-in ballot this election cycle in a timely manner, or at all.”

Disclosure ¶ 8. Mass voter disenfranchisement is a quintessential harm to the public

interest, and the risk of that harm weighs heavily against the Government’s stay

request.

The implementation’s deficiencies matter on the other side of the scale as well.

The Government’s asserted injury is that the injunction bars “an important federal

policy to protect the mails from being used to commit voter fraud.” Appl. 13. But a

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verification system that does not work protects against nothing. The Postal Service

cannot run the system it built, and its own developers expected it to fail. Supra, at

20. What remains of the Government’s interest is that it has been enjoined from

enforcing a rule it considers important—an argument that the Government is harmed

because it says it is harmed. That interest cannot outweigh the “foreseeable

catastrophic disruption to our coming nationwide elections” that the Disclosure

describes. Disclosure ¶ 40. 16

B. The Government’s conduct weighs against it.

A stay is equitable relief, and stay applicants “must come into court with clean

hands.” Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 244 (1933) (quoting

1 J. Story, Equity Jurisprudence § 98 (14th ed.)).

The District Court found that the Government violated the August 11

injunction, and had “feigned complete compliance” with the June 25 injunction. Dkt.

201 at 2–3. The Disclosure shows that the rulemaking was not the only work that

went forward in the face of court injunctions. Portal development resumed on July

29, while an injunction was in force. Disclosure ¶ 37. It continued through the August

11 injunction and, the Whistleblower reports, after the August 27 temporary

restraining order that barred “further preparatory steps” for this election. Id. ¶¶ 5,

39; Memorandum and Order at 10, League of Women Voters of Mass. v. Trump, No.

1:26-cv-11549 (D. Mass. Aug. 27, 2026), Dkt. 218.

16 Contrary to the Government’s suggestion, Appl. 13, 30, Nken does not help the Government here. It

held that the harm-to-others and public-interest factors “merge when the Government is the opposing
party.” Nken, 556 U.S. at 435. Here the Government is the applicant. The public interest is weighed
against it, not folded into its account of the Executive’s goals.

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The calendar refutes any Government suggestion that the work on the Portal

while the injunctions were in force was aimed at elections after November 3. A system

built for 2028 does not need an urgent launch date of September 1, set on August 6,

or just four days of testing. Disclosure App. A ¶¶ l, t. And the Government’s answer

leads nowhere the Government wants to go. If the Portal was built for this November,

then the Rule’s assurance to the courts was not accurate when made, and the work

after August 27 was barred by the temporary restraining order. If the Portal was

built for later elections, then the Government’s claimed harm rests on the delay in

deploying systems it says were not built for this cycle.

The Government asks this Court to stay the injunction it already violated, on

both the strength of assurances about compliance that the District Court found

feigned and assurances about readiness that the Disclosure contradicts. That is not

a record on which equity grants extraordinary relief.

CONCLUSION

This Court should deny the stay application.

September 8, 2026 Respectfully submitted,

JOSHUA PERRY
Counsel of Record
E. DANYA PERRY
ELIZABETH TULIS
PERRY LAW, LLC
445 Park Avenue, 7th Floor
New York, NY 10022
(212) 251-2619
jperry@danyaperrylaw.com

Counsel for Amicus