Saved copy of
Opposition to the 26A297 administrative stay
State of California · 2026-09-03
No. 26A297
In the Supreme Court of the United States
UNITED STATES POSTAL SERVICE, et al.,
Applicants,
v.
CALIFORNIA, et al.,
Respondents.
DONALD J. TRUMP, et al.,
Applicants,
v.
LEAGUE OF WOMEN VOTERS OF MASSACHUSETTS, et al.,
Respondents.
OPPOSITION TO REQUEST FOR AN ADMINISTRATIVE STAY
ANDREA JOY CAMPBELL ROB BONTA
Attorney General of Attorney General of California
Massachusetts SAMUEL T. HARBOURT
Solicitor General
NICHOLAS W. BROWN AARON D. PENNEKAMP
Attorney General of Supervising Deputy Solicitor General
Washington IAN FEIN*
L. NICOLE ALLAN
AARON D. FORD Deputy Solicitors General
Attorney General of Nevada STATE OF CALIFORNIA
DEPARTMENT OF JUSTICE
(Additional counsel listed
455 Golden Gate Avenue, Suite 11000
on signature pages)
San Francisco, CA 94102-7004
(415) 510-3466
Ian.Fein@doj.ca.gov
September 3, 2026 *Counsel of Record
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Respondents intend to oppose Applicants’ request for a stay pending
appeal by 10 a.m. EDT on September 8, 2026, as directed by Justice Jackson,
including by explaining why Applicants are unlikely to succeed on the merits
and why the equities strongly disfavor a stay. In the meantime, Respondents
submit this short opposition to explain why Applicants’ request for an
immediate administrative stay should be denied.
BACKGROUND
Sixty-nine days before the upcoming federal election, and just over a week
before some state laws require ballots to be mailed out, the United States
Postal Service (USPS) published a rule entitled “Ballot Mail for Federal
Elections.” 91 Fed. Reg. 54966 (Aug. 26, 2026) (Rule). The Rule provides,
among other things, that state and local election officials must upload to USPS
via an online portal (Portal) a list of voters eligible to receive mail ballots,
together with a unique barcode identifying each such voter. See id. at 54991,
Rule § 24.3. The Rule makes clear that USPS will refuse to deliver any ballot
mail that does not comply with those requirements. Id., Rule § 24.5.3; see Appl.
5-6. The district court issued a temporary restraining order against key
mandatory provisions of the Rule pending that court’s decision on
Respondents’ motion for a preliminary injunction.
That preliminary injunction motion was heard this morning, and the TRO
will be dissolved as soon as the district court issues its decision—which the
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court indicated will likely be as soon as this evening or tomorrow. 1 The First
Circuit has before it a motion for a stay of the TRO pending appeal on which
highly expedited briefing is already complete. Meanwhile, USPS submitted a
declaration to the district court today explaining that the Portal is not yet
functional and will not be available until, at the earliest, “sometime next
week.” D. Ct. Dkt. 150-1 ¶ 3. 2 In seeking a stay of the TRO from the First
Circuit, Applicants did not request relief by any date certain—quite possibly
because they knew the Portal is not yet functional, meaning no State is
currently in a position to comply with the Rule even if it took effect.
ARGUMENT
An administrative stay is not warranted. Applicants cannot show
immediate and irreparable harm from a TRO that (a) does not prevent USPS
from continuing to develop the Portal, and (b) only prohibits USPS from
enforcing requirements as to a Portal that does not exist yet—and to a virtual
certainty will not exist before the TRO is dissolved. For that reason alone, the
request for an immediate administrative stay should be denied. Applicants
make no effort to explain how they could possibly be entitled to emergency
relief to effectuate a Rule that they currently lack the technological capacity to
administer. An administrative stay would also be profoundly disruptive to
1 Respondents have requested an expedited transcript of the proceeding, but it
is not yet available.
2 Citations are to the docket in California v. USPS, No. 26-cv-13917 (D. Mass.).
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Respondents’ ongoing preparations for the rapidly approaching midterm
election. And Applicants cannot demonstrate any countervailing harm in
denying an immediate stay. Finally, this Court’s jurisdiction is highly
questionable given the imminent expiration of the TRO. At a minimum, there
is no sensible reason for the Court to grant an administrative stay when any
appellate proceedings concerning the TRO will so soon be moot.
1. As discussed, the Rule requires States to upload information about
every qualified mail voter to USPS’ as-yet-unreleased online Portal, and USPS
will refuse to deliver ballot envelopes containing information that does not
match the data in the Portal. See supra p. 1. The Rule also requires States to
redesign their ballot envelopes and secure USPS’ approval for those new
designs before they can send out a single mail ballot. See 91 Fed. Reg. at 54990-
54991, Rule § 24.3. And the Rule forbids uploading voter data to the Portal
until USPS review and certification of ballot envelopes “is complete.” See 91
Fed. Reg. at 54979. Complying with these demands would be difficult under
the best of circumstances. But USPS has made it “practically impossible as to
the 2026 midterm elections.” App’x 10a. The agency published the Rule on
August 26—just weeks before Election Day and only days before some States
started sending out mail ballots. Respondents “have neither time nor funds to
design new mail ballots, seek approval of the new designs, order production of
mail ballots, update their own election management systems, train election
officials to use the USPS portal, and upload citizen data to the portal, all before
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the midterms.” Id. at 11a.
Indeed, one respondent State—North Carolina—is required by state law
to begin mailing ballots tomorrow (September 4). See N.C. Gen. Stat. § 163-
227.10(a). Applicants suggest (Appl. 25-26) that a statement from North
Carolina’s Board of Elections undermines the district court’s finding that
compliance with the Rule will be impossible. As an initial matter, ballots in
North Carolina are mailed out by 100 separate county boards of elections, see
D. Ct. Dkt. 4-18 ¶ 6, and none of them has suggested that it would be feasible
to mail compliant ballots by the end of this week. A spokesman for the state
board has also since clarified that “North Carolina ha[s] no current plans to
use the new Postal Service portal.” Sullivan, Postal Service Is Building Ballot
Screening System Despite Ongoing Court Fight, N.Y. Times (Sept. 2, 2026),
https://bit.ly/4ibZEVU. Likewise, in Wisconsin, which began mailing out
ballots on September 1 and must mail all ballots by September 17, the
Republican-appointed Chair of the Wisconsin Elections Commission has stated
that compliance with the Rule is “virtually impossible.” D. Ct. Dkt. 100-1 ¶ 21.
That makes sense: again, by Applicants’ own admission, the Portal is not
available yet—and will not be until next week at the earliest. D. Ct. Dkt. 150-
1 ¶ 3.
Even if state and local officials could meet the Rule’s impossible
demands, there is a high risk that errors and delay on USPS’ part will
disenfranchise voters. USPS has conceded that its new Portal—the linchpin
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of the Rule’s ballot-checking mechanism—will not be ready until “sometime
next week.” D. Ct. Dkt. 150-1 ¶ 3. And a recent disclosure from a USPS official
familiar with the agency’s “sloppy and rushed” development process explained
that there is an extreme risk of error due to “slapdash software development,”
D. Ct. Dkt. 115 at 13, 15; “insufficient internal testing,” id. at 16; and “‘siloed’
. . . teams of developers . . . working independently without any effort towards
interoperability,” id. at 17. USPS also plans to use a “batch” verification
protocol—called a “zero-percent failure policy,” id. at 19—whereby thousands
or tens of thousands of ballots will be processed simultaneously, and “if even
one bar code on one single ballot . . . fails to properly scan,” “the entire batch is
rejected and sent back to the state,” id. at 10-11. Scanning failures “are
predictable—and likely,” in light of many “scanning problems” recently
experienced by USPS. Id. at 20. While USPS submitted a declaration to the
district court today with updates on the status of its Portal, see D. Ct. Dkt. 150-
1, it was notably silent on its plans with respect to verification and said nothing
to counter these startling revelations. Given the many risks and uncertainties
associated with USPS’ unprecedented new ballot-verification and non-delivery
program, the district court understandably found that the Rule creates an
“overwhelming risk of pervasive disenfranchisement of citizens who need
access to mail ballots in order to vote.” App’x 12a.
Applicants have not identified any countervailing equitable
considerations that warrant an administrative stay. The TRO is narrow: it
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does not stop USPS from taking any necessary steps to launch its new Portal,
and it does not bar States from voluntarily seeking USPS’ approval of their
ballot designs or from uploading their voters’ information to the Portal, once it
is operational. See id. at 12a-13a. Instead, the TRO enjoins only the
mandatory aspects of the Rule—and only for so long as it takes the Court to
rule on Respondents’ request for a preliminary injunction. See id. That
temporary intrusion into USPS’ implementation of the Rule is far outweighed
by the harms to the States and their voters if the Rule is allowed to go into
effect.
2. The TRO at issue will be dissolved upon the district court’s issuance of
its decision on Respondents’ motion for a preliminary injunction. 3 The district
court held a hearing on that motion this morning, and indicated from the bench
its intention to rule very shortly thereafter. In these circumstances, the usual
rule that TROs are not appealable applies. See, e.g., Dep’t of Educ. v.
California, 604 U.S. 650, 651 (2025). That is especially true because the TRO
at issue has not been extended (as it had been in Trump v. J.G.G., 604 U.S.
670, 671 (2025) and Sampson v. Murray, 415 U.S. 61, 67 n.8, 86-87 (1974)), and
because it does not operate as a mandatory injunction (as it did in Northeast
Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1006 (6th Cir.
3 The TRO was issued on August 27 and would expire automatically on
September 10, see Fed. R. Civ. P. 65(b)(2), but the district court has indicated
its intention to rule on Respondents’ preliminary-injunction motion well before
that date.
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2006)). This Court therefore lacks appellate jurisdiction over the TRO,
particularly because, as explained above, Applicants cannot show any
likelihood of harm from maintaining the status quo until the earlier of the
TRO’s dissolution or this Court’s ruling on the stay application.
It would also make little sense to enter an administrative stay when it is
so likely that a ruling on the preliminary injunction will issue imminently. As
the federal government acknowledged at this morning’s hearing in district
court, issuance of a preliminary injunction ruling will moot any appeal of the
TRO. See, e.g., In re Vendo Co., 435 U.S. 994 (1978) (dismissing proceeding as
moot once Court had “been advised of an order . . . dissolving the injunction”).
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CONCLUSION
The request for an immediate administrative stay should be denied.
Respectfully submitted,
ANDREA JOY CAMPBELL ROB BONTA
Attorney General Attorney General of California
Commonwealth of Massachusetts SAMUEL T. HARBOURT
DAVID C. KRAVITZ Solicitor General
State Solicitor HELEN H. HONG
GERARD J. CEDRONE Principal Deputy Solicitor General
Deputy State Solicitor THOMAS S. PATTERSON
One Ashburton Place Senior Assistant Attorney General
Boston, MA 02108 AARON D. PENNEKAMP
Supervising Deputy Solicitor General
NICHOLAS W. BROWN IAN FEIN
Attorney General L. NICOLE ALLAN
State of Washington Deputy Solicitors General
1125 Washington Street SE SETH E. GOLDSTEIN
PO Box 40100 Supervising Deputy Attorney General
Olympia, WA 98504-0100 ANNE P. BELLOWS
KEVIN L. QUADE
AARON D. FORD LISA C. EHRLICH
Attorney General MALCOLM A. BRUDIGAM
State of Nevada MICHAEL S. COHEN
1 State of Nevada Way, Suite 100 ROBERT WILLIAM SETRAKIAN
Las Vegas, NV 89119 Deputy Attorneys General
September 3, 2026
(Counsel listing continues on next page)
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KRISTIN K. MAYES PHILIP J. WEISER
Attorney General Attorney General
State of Arizona State of Colorado
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WILLIAM TONG KATHLEEN JENNINGS
Attorney General Attorney General
State of Connecticut State of Delaware
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Attorney General Attorney General
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10
JEFF JACKSON DAN RAYFIELD
Attorney General Attorney General
State of North Carolina State of Oregon
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Attorney General Attorney General
State of Rhode Island State of Vermont
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Attorney General Attorney General
Commonwealth of Virginia State of Wisconsin
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Governor
Commonwealth of Pennsylvania
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