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Opposition to the 26A297 administrative stay

State of California · 2026-09-03

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                                   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
                                        1


       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
                                        2


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.).
                                        3


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
                                       4


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
                                          5


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
                                        6


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.
                                       7


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”).
                                       8


                               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)
                                  9



KRISTIN K. MAYES                  PHILIP J. WEISER
 Attorney General                  Attorney General
 State of Arizona                  State of Colorado
2005 North Central Avenue         1300 Broadway
Phoenix, AZ 85004                 Denver, CO 80203

WILLIAM TONG                      KATHLEEN JENNINGS
 Attorney General                  Attorney General
 State of Connecticut              State of Delaware
165 Capitol Avenue, Suite 5000    820 N. French Street
Hartford, CT 06106                Wilmington, DE 19801

BRIAN L. SCHWALB                  ANNE E. LOPEZ
 Attorney General                  Attorney General
 District of Columbia              State of Hawai‘i
400 6th Street, NW                425 Queen Street
Washington, DC 20001              Honolulu, HI 96813

KWAME RAOUL                       AARON M. FREY
 Attorney General                  Attorney General
 State of Illinois                 State of Maine
115 S. LaSalle Street             6 State House Station
Chicago, IL 60603                 Augusta, ME 04333

ANTHONY G. BROWN                  DANA NESSEL
 Attorney General                  Attorney General
 State of Maryland                 State of Michigan
200 Saint Paul Place              P.O. Box 30736
Baltimore, MD 21202               Lansing, MI 48909

KEITH ELLISON                     JENNIFER DAVENPORT
 Attorney General                  Attorney General
 State of Minnesota                State of New Jersey
445 Minnesota Street, Suite 600   124 Halsey Street, 5th Floor
St. Paul, MN 55101                Newark, NJ 07101

RAÚL TORREZ                       LETITIA JAMES
 Attorney General                  Attorney General
 State of New Mexico               State of New York
408 Galisteo Street               28 Liberty Street
Santa Fe, NM 87501                New York, NY 10005
                                   10


JEFF JACKSON                        DAN RAYFIELD
 Attorney General                    Attorney General
 State of North Carolina             State of Oregon
114 W. Edenton Street               1162 Court Street NE
Raleigh, NC 27603                   Salem, OR 97301

PETER F. NERONHA                    CHARITY R. CLARK
 Attorney General                    Attorney General
 State of Rhode Island               State of Vermont
150 South Main Street               109 State Street
Providence, RI 02903                Montpelier, VT 05609

JAY JONES                           JOSHUA L. KAUL
 Attorney General                    Attorney General
 Commonwealth of Virginia            State of Wisconsin
202 North Ninth Street              17 West Main Street
Richmond, VA 23219                  Madison, WI 53707

JOSH SHAPIRO
 Governor
 Commonwealth of Pennsylvania
30 North Third Street, Suite 200
Harrisburg, PA 17101

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