Saved copy of
Application 26A124 for a stay of the injunction of Executive Order 14399
U.S. Department of Justice, Office of the Solicitor General · 2026-07-27
No. 26A
In the Supreme Court of the United States
───────────
DONALD J. TRUMP, ET AL., APPLICANTS
v.
STATE OF CALIFORNIA, ET AL.
───────────
APPLICATION FOR A STAY OF THE INJUNCTION
ISSUED BY THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
AND REQUEST FOR ADMINISTRATIVE STAY
───────────
D. JOHN SAUER
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
TABLE OF CONTENTS
Statement ....................................................................................................................... 5
Argument ..................................................................................................................... 10
A. The Government Is Likely to Succeed on the Merits Because This Suit
Is Premature ..................................................................................................... 11
B. The Remaining Factors Favor a Stay .............................................................. 26
Conclusion .................................................................................................................... 30
(i)
ii
PARTIES TO THE PROCEEDING
Applicants (defendants-appellants below) are Donald J. Trump, President of
the United States; the United States Department of Justice; Todd Blanche, Acting
Attorney General; the United States Department of Homeland Security; Markwayne
Mullin, Secretary of Homeland Security; the United States Social Security Admin-
istration; Frank J. Bisignano, Commissioner of the Social Security Administration;
the United States Postal Service; David Steiner, Postmaster General and Chief Ex-
ecutive Officer of the Postal Service; Douglas Tulino, Deputy Postmaster General,
Chief Operating Officer, and Chief Human Resources Officer of the Postal Service,
and Member of the Postal Service Board of Governors; Amber McReynolds, Chair of
the Postal Service Board of Governors; Derek T. Kan, Vice Chairman of the Postal
Service Board of Governors; Ronald Stroman, Member of the Postal Service Board of
Governors; and Daniel Mark Tangherlini, Member of the Postal Service Board of Gov-
ernors.
Respondents (plaintiffs-appellees below) are California; Massachusetts; Ne-
vada; Washington; Arizona; Colorado; Connecticut; Delaware; the District of Colum-
bia; Illinois; Maine; Maryland; Michigan; Minnesota; New Jersey; New Mexico; New
York; North Carolina; Oregon; Rhode Island; Vermont; Virginia; Wisconsin; and Josh
Shapiro, Governor of Pennsylvania.
Respondents (intervenor-defendants-appellants below) are Alabama; Florida;
Indiana; Kansas; Louisiana; Missouri; Montana; Nebraska; Oklahoma; South Caro-
lina; South Dakota; and Texas.
RELATED PROCEEDINGS
United States District Court (D. Mass.):
State of California v. Trump, No. 26-cv-11581 (June 18, 2026) (order granting
iii
motion to dismiss in part)
State of California v. Trump, No. 26-cv-11581 (June 25, 2026) (order granting
summary judgment and denying motion to dismiss)
State of California v. Trump, No. 26-cv-11581 (July 7, 2026) (order granting
seven-day administrative stay but otherwise denying stay)
United States Court of Appeals (1st Cir.):
State of California v. Trump, No. 26-1774 (July 25, 2026) (order denying mo-
tion for stay pending appeal)
In the Supreme Court of the United States
───────────
No. 26A
DONALD J. TRUMP, ET AL., APPLICANTS
v.
STATE OF CALIFORNIA, ET AL.
───────────
APPLICATION FOR A STAY OF THE INJUNCTION
ISSUED BY THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
AND REQUEST FOR ADMINISTRATIVE STAY
───────────
Pursuant to Rule 23 of the Rules of this Court and the All Writs Act, 28 U.S.C.
1651, the Solicitor General—on behalf of applicants Donald J. Trump, President of
the United States, et al.—respectfully requests that this Court stay the injunction
issued by the United States District Court for the District of Massachusetts (App.,
infra, 61a-64a) pending appeal to the United States Court of Appeals for the First
Circuit and, if the court of appeals affirms the order, pending the timely filing and
disposition of a petition for a writ of certiorari and any further proceedings in this
Court. The Solicitor General also respectfully requests an immediate administrative
stay of the injunction to prevent the threat of irreparable injury while this application
is pending.
The district court has issued an extraordinary injunction barring federal agen-
cies from implementing an Executive Order promoting election integrity in the up-
coming federal elections in November. The injunction is particularly remarkable be-
cause the Order merely sets forth general policy guidance, leaving substantial discre-
(1)
2
tion to agencies about how to implement the Order while admonishing them that they
may do so only consistent with applicable law. And the injunction is especially inde-
fensible because the agencies are still deliberating over how (if at all) to implement
the Order, yet the district court preemptively decided that whatever the agencies may
choose to do will necessarily be unlawful. That injunction flouts settled Article III
standing and ripeness principles. This Court has repeatedly and recently recognized
that courts cannot enjoin implementation of Executive Orders that leave open mate-
rial issues that still need to be resolved by agencies, unless and until those agencies
actually take concrete actions that injure the plaintiffs.
This premature injunction imposes serious irreparable harm on the federal
government. Even if the agencies’ implementation plans end up being entirely law-
ful, there is not enough time to obtain ordinary appellate relief from the injunction in
order to carry them out before the November election, especially given that any such
plans will need to be implemented well before November given the timing of election
procedures concerning voter-roll verification and mail voting. Accordingly, this Court
should grant a stay pending further review and an immediate administrative stay.
In March of this year, President Trump signed Executive Order 14,399, titled
“Ensuring Citizenship Verification and Integrity in Federal Elections.” 91 Fed. Reg.
17,125 (Mar. 31, 2026) (Executive Order or Order). The Executive Order is a directive
from the President to several of his subordinates in the Executive Branch, aimed at
“enhanc[ing] election integrity via the United States Mail,” “reducing the risk of
fraud,” and “protecting the integrity of Federal elections.” Id. § 1, 91 Fed. Reg. at
17,125. The Order is not self-executing. Rather, it contemplates that the relevant
officials and agencies will, on specified timetables, consider and potentially take ac-
tions they deem lawful and appropriate in light of the President’s policy objectives.
3
For example, the Order directs the United States Postal Service (USPS or Postal Ser-
vice) “to initiate a proposed rulemaking” regarding mail-in and absentee ballots, “pur-
suant to * * * applicable authorit[ies]” and “[t]o ensure the faithful execution of Fed-
eral law.” Id. § 3(b), 91 Fed. Reg. at 17,126. It also instructs the Department of
Homeland Security (DHS) to compile and transmit State-specific lists of individuals
who are citizens and will be 18 years of age or older at the time of an upcoming elec-
tion, but only “[t]o the extent feasible and consistent with applicable law.” Id. § 2(a),
91 Fed. Reg. at 17,125.
Those actions have not yet occurred. USPS has issued a notice of proposed
rulemaking and sought comments, but it has not finalized a rule. DHS has begun
the process of considering whether and to what extent it may compile the relevant
lists consistent with applicable law, but it continues to deliberate as to the best ap-
proach. Accordingly, much remains uncertain as to what a final USPS rule might
include or what the contents or uses of any DHS lists might be. Correspondingly, the
respondent States have not suffered any cognizable injury caused by the Executive
Order, because the Order itself does not affect their election processes at all, and it is
entirely speculative whether and how any agency implementation may do so.
The States nonetheless sought and obtained an injunction that prevents the
Executive Branch from implementing Sections 2 and 3 of the Executive Order with
respect to the November 3, 2026, election. That injunction defies established princi-
ples of ripeness and standing, which dictate that the current dispute is not justiciable.
See Trump v. New York, 592 U.S. 125, 131, 134 (2020) (per curiam). Indeed, the
district court itself recognized that the States’ challenge was not justiciable as to fu-
ture elections, and thus dismissed their claims without prejudice as to those elections;
yet even though the same exact uncertainty applies to the upcoming election, it pro-
4
ceeded to reach the merits, found that Sections 2 and 3 of the Executive Order are
“legally void,” and enjoined the federal defendants other than the President from fol-
lowing the President’s policy directives and implementing the Order with respect to
the November election. See App., infra, 61a-64a. That decision exceeded the court’s
authority under Article III, and conflicts with the correct conclusions of two courts
that parallel challenges were not justiciable. See NAACP v. USPS, No. 26-5257 (D.C.
Cir. July 17, 2026), slip op. 1-2 (staying injunction in parallel challenge to the Postal
Service’s proposed rule); DSCC v. Trump, Nos. 26-cv-1114, 26-cv-1132, and 26-cv-
1151, 2026 WL 1487833, at *13 (D.D.C. May 28, 2026) (denying preliminary injunc-
tion in parallel challenge to the Executive Order). The district court’s injunction also
closely resembles one this Court stayed last year, after a district court improperly
enjoined implementation of an Executive Order directing agencies to consider reduc-
tions-in-force, rather than waiting for agencies to actually take those actions and then
considering whether they turned out to be unlawful. Trump v. American Fed’n of
Gov’t Emps., 145 S. Ct. 2635, 2635 (2025).
The district court’s injunction also imposes irreparable harm on the govern-
ment. It impedes the President’s ability to direct his subordinates and preempts the
Executive’s deliberative policymaking. Absent a stay, even if the agencies’ implemen-
tation plans end up being entirely lawful, there will not be sufficient time to obtain
appellate relief before the November election. That is especially true because imple-
mentation efforts for any USPS rule or DHS policy will need to begin well before
November—indeed, as soon as early to mid-August—to be effective for the 2026 elec-
tion, particularly given that absentee and mail-in voting begin (in some States) sev-
eral weeks prior to Election Day. And for that reason, an immediate administrative
stay while this application is pending is also warranted. Conversely, staying the in-
5
junction would impose no meaningful burden on the respondent States, for the same
reasons they lack standing to pursue this premature suit. If and when the agencies
take concrete actions that actually injure them, the States can pursue claims at that
time, at which point courts can resolve any legal questions presented in a non-hypo-
thetical posture. As the lower courts have declined to stay the injunction pending
appeal, however, applicants seek a stay of the district court’s order barring imple-
mentation of Executive Order 14,399 with respect to the November 3, 2026, federal
election, along with an immediate administrative stay.
STATEMENT
1. Executive Order 14,399 does three things that are relevant here.
First, Section 2(a) directs the Secretary of Homeland Security to take “appro-
priate action” to compile from various federal record sources, and transmit to each
State, a list of United States citizens above the age of 18 and residing in the State at
the time of an upcoming federal election. See Order § 2(a), 91 Fed. Reg. at 17,125-
17,126. The Order specifically contemplates that the Secretary will establish proce-
dures for individuals to access, update, or correct their own records and for States to
supplement or suggest modifications to the lists. Order § 2(a), 91 Fed. Reg. at 17,125.
These “State Citizenship List[s]” are to “be updated and transmitted to State election
officials no fewer than 60 days before each regularly scheduled Federal Election.”
Ibid. The Order does not purport to require States to use the lists at all, let alone in
any particular way, once transmitted. See § 2(a), 91 Fed. Reg. at 17,125-17,126. Crit-
ically, the Order makes clear that DHS may compile and transmit the lists only “[t]o
the extent feasible and consistent with applicable law, including but not limited to
the Privacy Act of 1974 (5 U.S.C. 552a).” § 2(a), 91 Fed. Reg. at 17,125. This specific
admonition is layered on top of a more general admonition that the entire “order shall
6
be implemented consistent with applicable law and subject to the availability of ap-
propriations.” Id. § 7(b), 91 Fed. Reg. at 17,127.
Second, Section 3 of the Order directs USPS “to initiate a proposed rulemak-
ing” regarding certain design requirements for ballot mail for federal elections and to
develop procedures for individuals to be enrolled on “State-specific Mail-In and Ab-
sentee Participation List[s].” Order § 3, 91 Fed. Reg. at 17,126. (Such lists are to be
distinct from the State Citizenship Lists under Section 2.) The Order directs the
Postal Service to begin the proposed rulemaking “within 60 days of ” the Order with
a final rule, if any, to be issued within 120 days. Id. § 3(b), (d), 91 Fed. Reg. 17,126-
17,127. The Order identifies some provisions for inclusion in the notice of proposed
rulemaking, id. § 3(b), but does not say anything about whether any or all of those
provisions should also appear in any final rule, if the Postal Service chooses to issue
one. Again, the Order makes clear that any rule should be promulgated “pursuant to
39 U.S.C. 401 and other applicable authority” and “ensure the faithful execution of
Federal law.” Ibid. On June 2, 2026, the Postal Service issued its notice of proposed
rulemaking, and the comment period closed on July 2. See Ballot Mail for Federal
Elections, 91 Fed. Reg. 32,915 (June 2, 2026). No final rule has issued.
Third, Section 5 of the Order tasks the Attorney General and the heads of ex-
ecutive departments to take “all lawful steps to deter and address noncompliance
with Federal law” governing federal elections. Order § 5, 91 Fed. Reg. at 17,127.
Section 2 also outlines some priorities for the “investigation and, as appropriate, the
prosecution” of State and local officials or others involved in the administration of
Federal elections who issue ballots to individuals not eligible to vote under several
relevant statutes. Id. § 2(b), 91 Fed. Reg. at 17,126. But the Order nowhere says
that States’ failure to use any of the contemplated lists would be a crime or even
7
evidence of a crime, much less that the Attorney General should bring charges on
such a theory.
2. On April 3, 2026—three days after the Executive Order was issued—the
respondent States filed this suit. They challenged Sections 2, 3, and 5 of the Order,
invoking various constitutional theories. See D. Ct. Doc. 1 at ¶¶ 116-127, 146-182
(Apr. 3, 2026). On June 18, 2026, the district court partially granted and partially
denied the federal government’s motion to dismiss the case on ripeness grounds. See
App., infra, 65a-81a. The court explained that with respect to elections after Novem-
ber 3, 2026, “[t]here are clearly many uncertainties as to how the agencies will ulti-
mately implement the EO including the source and accuracy of DHS’ [State] Citi-
zen[ship] Lists, and what final rule, if any, will be adopted by the USPS.” Id. at 74a.
Any challenge to the Executive Order for elections after November 2026 would be
unripe, the court recognized, because “[t]he implementation of the EO may well result
in the evolving and dynamic process described by Defendants, in which Plaintiffs may
participate in a comment period that could result in their concerns being incorporated
in agency decision making.” Ibid. Even though all of that is equally true for the
November 2026 election, the court nevertheless concluded that respondents’ chal-
lenge to the legality of the Order as it relates to that election was ripe for adjudication,
because the Order contemplates that certain actions will occur prior to that election.
See id. at 75a-80a.
On June 25, 2026, the district court granted summary judgment for respond-
ents and issued a permanent injunction. App., infra, 28a-64a. The court held that
respondent States have standing because they have “statutory obligations” that “re-
quire immediate action” to prepare to respond to federal implementation of the Exec-
utive Order. Id. at 42a. As relevant here, the court declared Sections 2 and 3 of the
8
Executive Order “legally void.” Id. at 61a. In doing so, the court rejected the govern-
ment’s argument that the Order’s saving clauses directing implementing officials to
comply with the law rendered the Order not facially unlawful. Id. at 50a-51a.
The district court held that Section 2(a) was unlawful, reasoning that the Pres-
ident lacked authority to compile voter lists for each State and to limit “voting eligi-
bility in primary elections to citizens above the age of 18” through the lists. Id. at
54a (emphasis omitted). The court also concluded that no federal statute “author-
ize[s] the federal government to create their own voting database.” Id. at 55a. More-
over, the court concluded that Section 2(b) impermissibly sought to “intimidate local
election officials to use the necessarily incomplete [State Citizenship Lists] as a re-
source, lest they face criminal prosecution.” Id. at 57a.
With respect to Section 3, the district court described the Order as directing
the Postal Service “to compile its own Lists of individuals eligible to vote by mail and
[to] probibit[] the transmission of a mail-in ballot completed by anyone not on [the
Postal Service’s] Lists.” App., infra, 57a. The court held this directive interfered with
the States’ exclusive “power to determine voter eligibility.” Ibid. The court also con-
cluded that the Postal Service “lacks statutory authorization to promulgate any bind-
ing regulations on mail-in voting,” and would not have time to seek advice from the
Postal Regulatory Commission as required. Id. at 57a-58a. The court thus enjoined
applicants, except for President Trump, “from implementing or giving effect to Sec-
tions 2 and 3 of the EO with respect to the November 3, 2026 or any earlier federal
election in the Plaintiff States.” Id. at 61a.
3. Applicants promptly appealed the district court’s summary-judgment
order and also sought a stay pending appeal of its injunction. D. Ct. Docs. 192, 193
(July 1, 2026). On July 7, 2026, the district court granted a seven-day administrative
9
stay of that injunction, but denied a stay pending appeal. See App., infra, 21a-27a.
4. The same day, applicants sought a stay in the court of appeals, asking
the First Circuit to rule by the expiration of the administrative stay on July 14, 2026,
and to extend the administrative stay, if it denied relief, to allow applicants to seek
orderly relief from this Court. See C.A. Stay Br. 3 (July 7, 2026). But the First Circuit
instead waited until July 25 to rule and denied relief. App., infra, 1a-20a.
In rejecting the government’s stay request, the court of appeals first found an
Article III case or controversy based on respondents’ diversion of staff time to plan
for potential future implementation of the Order. See App., infra, 7a-8a. The court
suggested that the Order “targets the Plaintiff States explicitly and repeatedly” by
imposing obligations to “coordinate with federal officials and comply with new voting
procedures.” Id. at 9a. It also opined that because some respondent States have
“already purchased mail-ballot envelopes,” and the Order directs the Postal Service
to propose a rule that would require States to use different envelopes, respondents
“faced certainly impending pocketbook injuries.” Id. at 11a. It next agreed with the
district court that respondents have standing because the Order “threatens [respond-
ents] and their officials with criminal penalties if they do not comply with its direc-
tives.” Id. at 12a. Finally, the court of appeals ruled that the Plaintiff States’ sover-
eign interest in administering elections supported standing. Id. at 13a-14a.
As to the remaining stay factors, the court of appeals noted that the injunction
does not prohibit the government from implementing the Executive Order as to non-
respondent States or as to elections after November 2026. App., infra, 15a. It “as-
sum[ed]” that barring implementation as to the Plaintiff States for 2026 elections
“will lead to irreparable harm,” but found that it was not sufficient given its analysis
of the other factors, which it found favored respondents. Ibid.
10
Judge Dunlap concurred in part and dissented in part. App., infra, 16a-19a.
In his view, the government is likely to succeed in challenging respondents’ standing
as to Section 2(a) of the Order, which pertains to the DHS State Citizenship Lists,
because that provision “does not order States, including [respondents], to take any
action based on the State Citizenship List[s].” Id. at 16a. He rejected the majority’s
broad reliance on “enforcement concerns” tied to Section 2(b), asserting that respond-
ents would have standing to challenge any conflict with state laws allowing 17-year-
olds to vote in federal primary elections, but not to challenge “enforcement of laws
banning voting by noncitizens” based on speculative fears about how the State Citi-
zenship Lists might be used to inform prosecutions. Id. at 17a-18a. With respect to
Section 3, which concerns the Postal Service rulemaking, Judge Dunlap concurred in
the denial of a stay, based on his view that state preparation for a potential Postal
Service final rule sufficed to constitute concrete injury “in this unusual case.” Id. at
18a. He found the government would suffer irreparable harm as to the State Citizen-
ship Lists and enforcement priorities because “it would be prevented from taking
steps that may provide States with further resources for purposes of the November
2026 election and from enforcing valid federal laws.” Id. at 19a.
ARGUMENT
Under Rule 23 of the Rules of this Court and the All Writs Act, 28 U.S.C. 1651,
to obtain a stay of an injunction pending review in the court of appeals and in this
Court, an applicant must show a likelihood of success on the merits, a reasonable
probability of obtaining a writ of certiorari, and a likelihood of irreparable harm. See
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam). In “close cases,” the
Court balances the equities and weighs the relative harms. Ibid.
All of those factors strongly warrant a stay here. The government is likely to
11
succeed on the merits of its appeal. The district court lacked jurisdiction to resolve
this premature dispute, and its contrary reasoning rested on fundamental misread-
ings of this Court’s precedents and gross misinterpretations of the Executive Order.
The court’s incursion on the government’s authority imposes irreparable harm on the
government by impeding the President’s efforts to secure election integrity—and do-
ing so in a manner that will be effectively unreviewable as to the November election
even if the government prevails on appeal. The injunction warrants the entry of in-
terim relief pending this Court’s review.
A. THE GOVERNMENT IS LIKELY TO SUCCEED ON THE MERITS BE-
CAUSE THIS SUIT IS PREMATURE
The district court lacked jurisdiction over this suit, which the respondent
States initiated only three days after the President signed the Executive Order—long
before any of the agency defendants had taken any concrete actions to implement the
Order. The Order functions as an internal directive from the President to subordi-
nate officials and agencies to engage in future policymaking. Respondents’ real con-
cern is not with the Order itself—which does not require anyone outside the govern-
ment to do (or refrain from doing) anything—but with possible harms that may arise
depending upon what specific actions the agencies ultimately decide to take in imple-
menting the President’s directives. Indeed, when dismissing respondents’ claims as
premature with respect to future elections, the district court was exactly right:
“There are clearly many uncertainties as to how the agencies will ultimately imple-
ment the EO, including the source and accuracy of DHS’ [State] Citizen[ship] Lists,
and what final rule, if any will be adopted by the USPS,” and “implementation of the
EO may well result in the evolving and dynamic process described by [the govern-
ment], in which [respondents] may participate in a comment period that could result
12
in their concerns being incorporated in agency decision making.” App., infra, 74a.
The same reasoning counsels in favor of a stay of the injunction against implementa-
tion of the Executive Order for the November 2026 election.
It is no less “uncertain[] * * * how the agencies will ultimately implement the
EO” as to the November 2026 election. App., infra, 74a. As another district court
recognized in rejecting parallel claims as premature, “the Executive Order does not
command Plaintiffs to do anything,” “no agency has yet acted pursuant to the Order
in a way that could harm Plaintiffs,” and the plaintiffs thus “ha[d] not suffered any
harm at present, much less harm that is certain, great, and imminent.” DSCC v.
Trump, Nos. 26-cv-1114, 26-cv-1132, and 26-cv-1151, 2026 WL 1487833, at *13
(D.D.C. May 28, 2026) (quotation marks omitted). The district court here nonetheless
allowed the challenge to the Executive Order to proceed as to its implementation for
the November 2026 election—contrary to both law and logic.
1. Two “related doctrines of justiciability” that “each originat[e] in the case-
or-controversy requirement of Article III”—standing and ripeness—render this suit
premature. Trump v. New York, 592 U.S. 125, 131 (2020) (per curiam). To establish
standing, a plaintiff must show (i) an injury in fact that is “concrete, particularized,
and actual or imminent,” (ii) that was “likely caused by the defendant,” and (iii) that
“would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S.
413, 423 (2021). This Court has “repeatedly reiterated that ‘threatened injury must
be certainly impending to constitute injury in fact,’ and that ‘[a]llegations of possible
future injury’ are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409
(2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (brackets in origi-
nal).
“[R]ipeness doctrine is drawn both from Article III limitations on judicial power
13
and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic
Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993). Ripeness “prevent[s] the courts, through
avoidance of premature adjudication, from entangling themselves in abstract disa-
greements over administrative policies,” and it shields “agencies from judicial inter-
ference until an administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties.” National Park Hospitality Ass’n v. Depart-
ment of the Interior, 538 U.S. 803, 807-808 (2003). “A claim is not ripe for adjudication
if it rests upon contingent future events that may not occur as anticipated, or indeed
may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (quotation
marks omitted).
Whether viewed through the prism of standing or ripeness, respondents have
failed to establish any present injury that a court could properly remedy. The Exec-
utive Order is an intra-Branch directive from the President to his subordinates—
which, of its own force, does not change anything at all about elections in any State.
It grants those subordinates a significant degree of latitude in deciding whether and
how to implement the President’s policies. It does not require the States to do (or
refrain from doing) anything at all. And it expressly prohibits federal agencies from
doing anything unlawful, mandating that the “order shall be implemented consistent
with applicable law.” Order § 7(b), 91 Fed. Reg. at 17,127. Thus, as the district court
itself acknowledged, there remain “many uncertainties” about how the agencies will
implement the Order. App., infra, 74a. Respondents therefore fear only potential
future injury from action they speculate that agencies may eventually take—in other
words, from “contingent future events that may not occur as anticipated, or indeed
may not occur at all.” Texas, 523 U.S. at 300.
Consider Section 2(a). It does not alter the rules of any State’s election pro-
14
cesses. It directs the Secretary of Homeland Security to “take appropriate action to
compile,” using existing federal records, “a list of individuals confirmed to be United
States citizens who will be above the age of 18 at the time of an upcoming Federal
election and who maintain a residence in the subject State,” and to “transmit” that
list to each State’s chief election official. Order § 2(a), 91 Fed. Reg. at 17,125. And it
expressly directs that the Secretary should do so only “[t]o the extent feasible and
consistent with applicable law”—thus contemplating that DHS must, in “tak[ing] ap-
propriate action,” assess whether the creation and transmission of those lists would
ultimately be feasible and consistent with applicable law. Ibid. Indeed, a recent DHS
statement regarding its proposed (but not finalized) approach has made clear that
DHS remains engaged in ongoing discussions regarding how information may be
shared consistent with the Privacy Act, 5 U.S.C. 552a, and other applicable laws.
D. Ct. Doc. 188-1, at 5 (June 18, 2026); see App., infra, 53a-54a n.15. The Order does
not mandate that the States take any particular action to use the Lists if and when
they are transmitted. See § 2(a), 91 Fed. Reg. at 17,125. The Order does not deem it
a crime, or even evidence of a crime, for States not to use the Lists when determining
voter eligibility, and it does not direct the Attorney General to bring charges on such
a theory. See ibid.
Section 3(b), likewise, does not itself affect the States in any concrete way. It
simply directs USPS to “initiate a proposed rulemaking” regarding the acceptance
and transmission of mail-in and absentee ballots through the federal mails. Order
§ 3(b), 91 Fed. Reg. at 17,126-17,127 (emphasis added). Although the Executive Or-
der directs that USPS include certain terms in the proposed rule and sets forth a
particular timetable for any rulemaking, it does not dictate the contents of any final
rule—nor require that one issue at all. See § 3(b) and (d), 91 Fed. Reg. at 17,126.
15
Instead, as with all notice-and-comment rulemaking, any final rule (if USPS chooses
to issue one) will be developed after USPS considers the public comments it received.
See Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 96 (2015) (noting the potential for
change between proposed rule and final rule); see also Defenders of Wildlife v. Perci-
asepe, 714 F.3d 1317, 1324-1325 (D.C. Cir. 2013) (observing that “Article III standing
requires more than the possibility of potentially adverse regulation” and that plain-
tiffs are not injured “by the initiation of a rulemaking”); In re Murray Energy Corp.,
788 F.3d 330, 335 (D.C. Cir. 2015) (Kavanaugh, J.) (noting that “courts have never
reviewed proposed rules”). For that reason, the D.C. Circuit recognized that the
Postal Service’s “proposed rule is likely neither constitutionally nor prudentially ripe
for review.” NAACP v. USPS, No. 26-5257 (D.C. Cir. July 17, 2026), slip op. 1. And
again, the Order admonishes the USPS that the rulemaking should be initiated “pur-
suant to 39 U.S.C. 401 and other applicable authority” and should “ensure the faithful
execution of Federal law.” Order § 3(b), 91 Fed. Reg. at 17,126.
Plaintiffs cannot demonstrate they suffer any cognizable injury from ongoing
policymaking deliberations within the Executive Branch. Instead, their concern is
with possible “action that the [government] might take in the future.” Trump v. New
York, 592 U.S. at 133-134. This case thus presents the same defect as Trump v. New
York—in which this Court dismissed the plaintiff States’ suit as premature. There,
President Trump issued a memorandum that “announced a policy of excluding from
the apportionment base aliens who are not in a lawful immigration status” for the
2020 census. Id. at 129-130 (quotation marks omitted). The memorandum called for
the policy’s “implementation ‘to the maximum extent feasible and consistent with the
discretion delegated to the executive branch.’ ” Id. at 130. Several States challenged
the memorandum before it was implemented, and this Court rejected the challenge,
16
holding that the “standing and ripeness inquiries both lead to the conclusion that
judicial resolution of this dispute is premature.” Id. at 134. Despite the memoran-
dum identifying a preferred policy, this Court concluded that because “the President
qualified his directive by providing that the Secretary should gather information to
the extent practicable and that aliens should be excluded to the extent feasible,”
“[a]ny prediction how the Executive Branch might eventually implement” the Presi-
dent’s “general statement of policy [wa]s no more than conjecture at th[at] time.” Id.
at 131 (quotation marks omitted). The Court noted that given the pre-
implementation posture, the plaintiff States could not overcome the possibility that
the President’s “policy may not prove feasible to implement in any manner whatso-
ever, let alone in a manner substantially likely to harm” the plaintiffs. Id. at 132.
The same is true here. The Executive Order repeatedly stresses that the rele-
vant agencies should take only lawful actions. Section 7(b) of the Order directs that
all of its provisions “shall be implemented consistent with applicable law.” 91 Fed.
Reg. at 17,127. Section 2 and Section 3 specifically reiterate that the relevant agen-
cies are to take only actions that are “feasible and consistent with applicable law,
including but not limited to the Privacy Act,” Order § 2(a), 91 Fed. Reg. at 17,125, or
that “comply with the Privacy Act and all applicable use agreements,” § 3(b)(iv), 91
Fed. Reg. at 17,126. And Section 3 separately admonishes that any USPS rule must
be issued “pursuant to 39 U.S.C. 401 and other applicable authority” and must “en-
sure the faithful execution of Federal law.” § 3(b), 91 Fed. Reg. at 17,126.
Further, the agencies’ ongoing deliberative policymaking demonstrates that
the agencies are able to follow the Order’s commands to take only lawful action. For
Section 3(b), “[s]ince the proposed rule [i]s simply a proposal, its presence mean[s]
that the [Postal Service is] considering the matter; after that consideration the
17
[Postal Service] might choose to adopt the proposal or withdraw it.” Long Island Care
at Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007). The same is true for Section 2, which
instructs DHS to take only “appropriate action” to effectuate its policy directive. See
Michigan v. EPA, 576 U.S. 743, 752 (2015) (explaining that “ ‘appropriate’ is ‘the clas-
sic broad and all-encompassing term that naturally and traditionally includes con-
sideration of all the relevant factors’ ” and that “[n]o regulation is ‘appropriate’ if it
does significantly more harm than good”). Any injury that respondents might possibly
suffer will depend on whether and how the Executive Order’s policy directives are
implemented, consistent with its careful qualifications.
The district court tried to distinguish this case from Trump v. New York on the
theory that this case involves “specific directives” about actions to take “at specified
times” with “definite substantive outcomes,” whereas that case involved a “request
for the Commerce Secretary to implement a policy statement.” App., infra, 80a (D.
Ct. Doc. 190 at 16) (quotation marks omitted). But that attempted distinction mis-
describes both cases. The memorandum at issue in Trump v. New York was far more
specific than the court suggested—it directed a very specific policy (to exclude “from
the apportionment base aliens who are not in a lawful immigration status”) in the
shadow of statutorily-defined timelines. 592 U.S. at 129-130 (quoting 85 Fed. Reg.
44,679, 44,680 (July 23, 2020)); see 2 U.S.C. 2a; 13 U.S.C. 141. This Court nonethe-
less held that the case was not ripe because it was unclear how the agencies would
implement the Order’s directives. Trump v. New York, 592 U.S. at 131. So too here.
The Executive Order does not direct definitive substantive outcomes—instead, its re-
peated admonitions that the agencies must take only actions that are feasible and
consistent with applicable law provide ample discretion for DHS and USPS not to
pursue the Lists or rule if they determine that such actions would be inconsistent
18
with law or otherwise inappropriate. At a minimum, it is uncertain how they will
implement the Order, so a merits adjudication is premature.
This case also resembles another one in which this Court stayed a district
court’s injunction last year. See Trump v. American Fed’n of Gov’t Emps., 145 S. Ct.
2635 (2025). The district court there had enjoined agency implementation “based on
its view about the illegality of [an] Executive Order” regarding agency reductions-in-
force and reorganizations, rather than waiting for the agencies to take concrete im-
plementation actions and then enjoining those actions only if actually unlawful. Id.
at 2635. “[T]he relevant Executive Order direct[ed] agencies” to undertake reorgan-
izations “ ‘consistent with applicable law.’ ” Ibid. (Sotomayor, J., concurring in the
grant of stay). Because only the Executive Order (and not the agency actions it di-
rected) was before the Court, the Court had “no occasion to consider whether [the
directed agency actions] can and will be carried out consistent with the constraints of
law.” Ibid. So too here. The Executive Order directs specified agencies and officials
to take “appropriate action,” and to pursue a “proposed rulemaking,” only if “feasible
and consistent with applicable law.” Order §§ 2(a), 3(b), 91 Fed. Reg. 17,125-17,126;
see id. § 7(b), 91 Fed. Reg. at 17,127. Until the agencies take such actions, federal
courts cannot “consider whether they can and will be carried out consistent with the
constraints of law.” American Fed’n of Gov’t Emps., 145 S. Ct. at 2635 (Sotomayor,
J., concurring in the grant of stay). The government’s “eventual action” pursuant to
Executive Order 14,399 “will reflect both legal and practical constraints, making any
prediction about future injury just that—a prediction.” Trump v. New York, 592 U.S.
at 133.
2. In nonetheless exercising jurisdiction and enjoining the Executive Or-
der, the district court concluded (as respondents contend) that any implementation
19
would necessarily be unlawful, because it would be impossible to implement the Or-
der lawfully. But that conclusion both contravenes this Court’s decision in Trump v.
New York and rests on a series of mischaracterizations of the Executive Order’s di-
rectives. See App., infra, 50a-59a.
First, even a claim that a potential future policy will be impossible to imple-
ment lawfully must satisfy Article III’s justiciability requirements. In Trump v. New
York, the plaintiff States made just such a claim; they contended that the President’s
policy, if implemented, would result in “an invalid tabulation” that “would contravene
the requirement * * * that the President state the ‘whole number of persons in each
State’ for purposes of apportionment.” 592 U.S. at 130. This Court nonetheless con-
cluded that the dispute was not justiciable, because “how the Executive Branch might
eventually implement” the President’s directive was inherently speculative. Id. at
131; see id. at 131-132. Indeed, those sorts of concerns are generally true of rulemak-
ing. It is common for an agency to propose a rule and interested parties to submit
comments explaining their (sometimes correct) view that the proposed rule is facially
invalid and cannot be lawfully applied. What those parties cannot do is challenge the
notice of proposed rulemaking. Instead, they must wait for the final rule, because
the agency might agree with their comments and decide not to proceed. The same
logic applies here.
For the same reason, it is impossible for the government at this time to offer a
merits defense of DHS’s and USPS’s as-yet-undetermined policy decisions—which
only underscores why the dispute is not justiciable. But it is definitionally lawful for
the President to direct his subordinates to pursue his policy priorities in a manner
that is “consistent with applicable law.” See Building & Constr. Trades Dep’t, AFL-
CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002) (rejecting a facial challenge to an
20
Executive Order that directed certain actions “to the extent permitted by law” be-
cause “if the agency is prohibited, by statute or other law, from implementing the
Executive Order, then the Executive Order itself instructs the agency to follow the
law”) (brackets omitted).
Tellingly, the district court’s speculation that any DHS lists and any USPS
rule will necessarily be unlawful rests on an egregious misreading of the Executive
Order. For example, the court concluded that creation of State Citizenship lists would
be unlawful because “the President lack[s] any role regarding voter eligibility” and
does not have “any authority to compile voter lists for each State.” App., infra, 54a-
55a. But the Executive Order does not direct DHS to create a federal voter database
or “prescribe who should be included on State voter lists,” as the court asserted. Id.
at 55a. It instead directs DHS to transmit a list of “individuals confirmed to be United
States citizens” of the relevant age and residency—while acknowledging that such
lists would not serve as voter lists. Order § 2(a), 91 Fed. Reg. at 17,125. Indeed,
omission from a State Citizenship List would not by itself confirm non-citizenship or
ineligibility to vote under state or federal law, just as presence on the list would not
“indicate that the individual has been properly registered to vote in the State.” Ibid.
Likewise, the district court asserted that the Executive Order “direct[s] that
USPS require all States to use a specific mail-in ballot.” App., infra, 58a. Again, the
Order contains no such directive. Instead, it directs the Postal Service “to initiate a
proposed rulemaking” regarding standards for transmitting mail-in or absentee bal-
lots, including requirements for envelope design (not ballot design), while noting that
the ultimate implementation must be “consistent with applicable law.” Order §§ 3(b)
and 7(b), 91 Fed. Reg. at 17,126-17,127 (emphasis added).
In insisting that Executive Order 14,399 “is invalid in all possible applica-
21
tions,” App., infra, 51a, the district court improperly discounted the Order’s repeated
instruction that the relevant agencies carry out its directives only to the extent “fea-
sible,” “appropriate,” pursuant to “applicable authority,” and “consistent with appli-
cable law,” Order §§ 2(a), 3(b) and 7(b), 91 Fed. Reg. at 17,126-17,127. That is pre-
cisely the erroneous approach that this Court rejected in Trump v. New York, 592
U.S. at 131; accord Allbaugh, 295 F.3d at 33. The President’s command that his sub-
ordinates carefully assess the applicable law to determine whether and how they can
take appropriate action is just as important to the Executive Order’s application as
the directives to implement particular policies. In other words, if it turns out that
there is no lawful way to implement the Executive Order’s directives, the Order itself
instructs the agencies not to take action. The district court was wrong to read that
command out of the Order.
The district court likewise erred in suggesting that the respondent States’ di-
version of resources to “analyze and develop a compliance plan for the EO” could ren-
der this case justiciable. See App., infra, 42a-43a. A party’s bare assertion that it
has spent time or energy evaluating how to comply with some potential future regu-
lation has never formed an adequate basis to ground a case or controversy under
Article III. To the contrary, this Court has been clear that plaintiffs may not expend
resources to “manufacture standing *** in anticipation of non-
imminent harm” as a way to get around the absence of an actual or imminent injury.
Clapper, 568 U.S. at 422; see id. at 410; Food & Drug Admin. v. Alliance for Hippo-
cratic Medicine, 602 U.S. 367, 394 (2024) (organizations “cannot spend [their] way
into standing” by expending “considerable resources” on efforts like “public advocacy
and public education” to “the detriment of other spending priorities”). The contrary
conclusion would lead to absurd results. Virtually any party concerned about any
22
future government action—including proposed legislation being considered in Con-
gress—could spend their way into standing, simply by insisting that they need to
begin preparing now just in case the theoretical regulation becomes reality.
Accordingly, the respondent States’ voluntary choices to divert resources in
anticipation of how they speculate the relevant agencies might eventually implement
Executive Order 14,399 cannot confer standing to challenge possible future agency
action that (as they acknowledge) is uncertain. For example, the States complain
that they may incur additional compliance costs if a final Postal Service rule ulti-
mately requires them to redesign their ballot envelopes. See App., infra, 43a. But
that possibility only underscores why this challenge is not yet ripe. The States could
have chosen to raise their concern through the Postal Service’s notice-and-comment
rulemaking process, which may ultimately result in a final rule that would obviate
any compliance costs. See Ballot Mail for Federal Elections, 91 Fed. Reg. 32,915,
32,917 (June 2, 2026) (noting that “the Postal Service * * * invites comments on any
and all provisions of the proposed [rule]” and that “the Postal Service plans to work
with stakeholder groups to discuss the proposed rule and its implementation”).
Finally, the district court also mischaracterized the aspects of Executive Order
14,399 that concern prosecution priorities, suggesting that the Order created an im-
minent threat of criminal enforcement “against election officials who furnish ballots
to voters excluded from the [State Citizenship] Lists or the USPS Lists.” App., infra,
43a. The Executive Order contains no such directive. Instead, it directs the Attorney
General to prioritize investigations into violations of certain existing federal laws by
election officials who issue ballots to individuals “not eligible to vote in a Federal
election.” Order § 2(b), 91 Fed. Reg. at 17,125. It then defines who is “‘eligible to vote
in a Federal election’”: an individual who “is a citizen of the United States, 18 years
23
of age or older by the date of the upcoming election, and otherwise qualified under
the law of his or her State.” Ibid. The Order does not suggest that the Attorney
General should enforce the laws by reference to any list ultimately created by DHS
or the Postal Service, and it certainly does not “create a new criminal offense.” App.,
infra, 56a. Properly read, this aspect of the Executive Order involves the President’s
exercise of “the Executive Branch’s traditional discretion over whether to take en-
forcement actions against violators of federal law.” United States v. Texas, 599 U.S.
670, 684 (2023); see id. at 678-679 (“The Executive Branch—not the Judiciary—
makes arrests and prosecutes offenses on behalf of the United States.”). Absent a
challenge to a particular prosecution, the Executive Branch may, without judicial in-
terference, determine “how to prioritize and how aggressively to pursue legal actions
against defendants who violate the law.” TransUnion, 594 U.S. at 429.
Executive Order 14,399 plainly is not self-executing. It directs other agencies
and officials to begin the policymaking process and to prioritize certain law-enforce-
ment actions. As another district court explained in denying another set of plaintiffs’
request for a preliminary injunction against the same provisions of the same Order,
the Order “does not itself regulate voter registration or how mail-in or absentee bal-
lots will be transmitted,” and “whether the government’s actions under the Order are
lawful or unlawful will depend on how” the Postal Service and DHS “decide to imple-
ment the Order, not on the Order itself.” DSCC, 2026 WL 1487833, at *11-*12. Ap-
plying these settled justiciability principles does not foreclose the possibility of future
judicial review; the agencies may eventually take action that directly affects the re-
spondent States, providing them with a concrete injury that could ground a ripe chal-
lenge. But “[a]t present, this case is riddled with contingencies and speculation that
impede judicial review.” Trump v. New York, 592 U.S. at 131. This Court should not
24
“abandon [its] usual reluctance to endorse standing theories that rest on speculation”
about yet-unmade decisions. See Clapper, 568 U.S. at 414.
3. In denying a stay, the court of appeals likewise misconstrued the Exec-
utive Order’s operation. First, the court read the Order to require respondent States
to use State Citizenship Lists to verify voter eligibility. App., infra, 12a. But as
explained, the Order contains no such directive. See supra p. 14. As Judge Dunlap
and another district court have both correctly recognized, the Order “does not order
States * * * to take any action based on the State Citizenship List[s],” so “any injury
from the compilation and distribution of State Citizenship Lists” is “speculative and
hypothetical.” App., infra, 16a-17a; DSCC, 2026 WL 1487833, at *6.
Next, the court of appeals found standing based on a purported threat that
state officials could be prosecuted if they did not use the State Citizenship Lists to
verify voter eligibility. App., infra, 12a. But again, the Order does not direct federal
officials to initiate prosecutions with any reference to the Lists—it directs officials to
prioritize investigation and prosecution of certain existing federal crimes, and never
says that state officials’ use or nonuse of the Lists would provide a basis for such
investigations or prosecutions. See Order § 2(b), 91 Fed. Reg. at 17,125. The States
do not contend that they wish to give ballots to ineligible voters; the President’s pri-
orities for enforcing violations of existing federal law plainly cannot confer standing
where no plaintiff contends that it intends to violate that law.
As to the Postal Service’s ongoing rulemaking, the court of appeals character-
ized the Executive Order as requiring that the Postal Service issue a final rule—and
one that contains at least some particular requirements, such as requiring barcodes
on ballot envelopes. App., infra, 9a, 11a. That too misstates the effect of the Order.
The Order does not “direct[] various changes to the voting-by-mail process,” App.,
25
infra, 9a, such that respondents need to prepare now for predetermined changes—it
directs the President’s Executive Branch subordinates at the Postal Service to begin
a deliberative policymaking process that may ultimately include some changes, Order
§ 3, 91 Fed. Reg. at 17,126. The court of appeals’ suggestion that some respondents
demonstrated an injury in fact based on past expenditures on ballot envelopes that
would not comply with the policies outlined in the Order, App., infra, 11a, fails for
the same reason. The Order does not itself impose any envelope requirements—only
a Postal Service final rule can do that. And it is entirely speculative whether any
final rule that issues will in fact impose requirements that the already-purchased
envelopes do not meet.
Given those inaccuracies regarding the Order’s effect, the court of appeals’ at-
tempt to distinguish this Court’s decision in Trump v. New York, 592 U.S. 125, falls
short. The court contrasted the New York States’ lack of “present injury” and absence
of a showing that “any future injury was imminent or would ever occur” with the
present and future injuries to the Plaintiff States here under its misreading of the
Order. App., infra, 9a-10a. But the harms alleged here are, for the reasons explained
above, just as speculative as in New York. Like in that case, any injuries that the
respondent States may ultimately suffer are dependent entirely on the way that DHS
and the Postal Service choose to implement the Order—they do not flow from the
Order itself.
Finally, the court of appeals emphasized that the government did not offer a
defense of the Order’s legality on the merits, arguing only that this dispute fails to
present an Article III case or controversy. See App., infra, 6a. But as explained
above, the government obviously cannot provide a hypothetical legal defense when
the relevant agencies have not even yet decided on what their actual policies will be.
26
See supra pp. 14-15. If and when DHS and USPS take final agency action that con-
cretely injures a plaintiff, the government will have a particular policy that it can and
will defend on the merits—but that has not yet occurred. That only demonstrates
why this dispute is not ripe for resolution at this time.
B. THE REMAINING FACTORS FAVOR A STAY
In deciding whether to grant emergency relief, this Court also considers
whether the underlying issues warrant review, whether the applicant likely faces
irreparable harm, and, in close cases, the balance of equities. See Hollingsworth, 558
U.S. at 190. Those factors heavily favor a stay in this case.
If affirmed by the First Circuit, the district court’s holding that the respondent
States have presented a justiciable dispute would warrant this Court’s review. The
district court’s decision directly conflicts with this Court’s precedents regarding
standing and ripeness. See supra, pp. 12-18. It also reaches the opposite result from
the decision of other federal courts in parallel disputes regarding the same Executive
Order, see DSCC, 2026 WL 1487833, at *13, and the Postal Service’s proposed rule
pursuant to that Executive Order, see NAACP, No. 26-5257, slip op. 1-2. Further, an
injunction limiting the government’s efforts to promote election integrity at the Pres-
ident’s direction warrants this Court’s review. Indeed, this Court frequently grants
plenary review when a lower-court decision blocks a significant Executive Branch
policy. E.g., Trump v. Miot, 146 S. Ct. 1802 (2026) (granting a writ of certiorari before
judgment to consider termination of Temporary Protected Status designation); Noem
v. Doe, 146 S. Ct. 1803 (2026) (same); Trump v. Slaughter, 146 S. Ct. 18 (2025) (grant-
ing a writ of certiorari before judgment to review the President’s removal of Executive
Branch officer); Trump v. Barbara, 146 S. Ct. 879 (2025) (granting a writ of certiorari
before judgment to consider the President’s birthright citizenship Executive Order);
27
Trump v. V.O.S. Selections, Inc., 146 S. Ct. 73 (2025) (granting a writ of certiorari to
review the President’s imposition of tariffs).
A stay—along with an immediate administrative stay—is also warranted be-
cause the injunction below imposes irreparable harm on the government. Absent a
stay, the government will be unable to obtain appellate relief from an order that bars
implementation of a presidential policy that seeks to ensure voter integrity in the
upcoming November 2026 election. Accordingly, both the irreparable harm factor
and the public interest favor the government. See Nken v. Holder, 556 U.S. 418, 435
(2009) (noting that harm to the government and public interest factors “merge” when
the government is a party).
The injunction irreparably and impermissibly impedes the President’s ability
to oversee the Executive Branch. “[T]he Framers decided to vest ‘[t]he executive
Power’ in one person—‘a President of the United States of America.’ ” Trump v.
Slaughter, No. 25-332, 2026 WL 1855612, at *5 (June 29, 2026) (quoting U.S. Const.,
Art. II, § 1, Cl. 1) (brackets in original). The President therefore has the sole “consti-
tutional obligation ‘to take care that the laws be faithfully executed.’ ” Ibid.; see U.S.
Const., Art. II, § 3. As explained, the Executive Order functions only to direct the
President’s subordinates to take appropriate and lawful action to implement the
President’s policy objectives. See supra 16-17. By stopping the relevant agencies and
officials from implementing that Order with respect to the November 2026 federal
election, the injunction operates as “an improper intrusion by a federal court into the
workings of a coordinate branch of the Government.” INS v. Legalization Assistance
Project, 510 U.S. 1301, 1306 (1993) (O’Connor, J., in chambers). The Executive
Branch “suffers a form of irreparable injury” from such an incursion, even when the
injunction is based on “a threshold error.” Trump v. CASA, Inc., 606 U.S. 831, 860-
28
861 (2025); see Trump v. Orr, 146 S. Ct. 44, 46 (2025); American Fed’n of Gov’t Emps.,
145 S. Ct. at 2635; OPM v. American Fed’n of Gov’t Emps., 145 S. Ct. 1914, 1914
(2025).
Further, even if the agencies’ ultimate implementation decisions are entirely
lawful, there is not enough time to obtain ordinary appellate relief from the injunction
in order to carry them out before the November 3, 2026, election. That problem is
even more acute because any such decisions will need to be implemented well before
November—indeed, as soon as early to mid-August—given the timing of state election
procedures concerning voter-roll verification and absentee or mail-in voting. As the
agencies have attested, see D. Ct. Docs. 156-1 (May 7, 2026) (Declaration of Michael
Mayhew (DHS)), 194-2 (July 1, 2026) (Declaration of Steven Monteith (USPS)), every
day that the agencies are unable to take steps to carry out the Executive Order as to
the November 2026 election makes it less likely that they will, as a practical matter,
be able to implement any lists or rules that they ultimately finalize—even if they
obtain appellate relief. That is because once the agencies finalize their decisions re-
garding implementation of the Order, it will still take time to carry out those policies
with respect to the November election (an election for which mail-in and absentee
voting begins, in some States, several weeks in advance). The D.C. Circuit accord-
ingly stayed another injunction that would have rendered the Postal Service “unable
to issue and implement a final rule in advance of the November 2026 general elec-
tion,” because “[i]n this context, there can be no do over once the election occurs.”
NAACP, No. 26-5257, slip op. 1 (quotation marks omitted). The district court brushed
aside these concerns, noting that the injunction did not prevent the government from
implementing the Executive Order with respect to elections after November 3, 2026.
App., infra, 25a. But that misses the point: The irreparable harm is the government’s
29
inability to implement the order as to the November 2026 election in the respondent
States. The harms to voter integrity in that election if the government’s policy is not
in place cannot be undone even if the government later prevails on the merits of its
appeal. See NAACP, No. 26-5257, slip op. 1.
On the other side of the ledger, the respondent States face no irreparable harm
for the same reasons they have failed to show any justiciable controversy. At least at
this time, they merely seek to prevent hypothesized harm that rests on speculation
as to how the agencies may implement the Executive Order. Because the States can-
not demonstrate any “imminent” irreparable harm, the balance of the equities favors
the government. White v. Florida, 458 U.S. 1301, 1302 (1982); see Nken, 556 U.S. at
434-435.
The court of appeals’ analysis of the equitable stay factors offers little in re-
sponse. Notably, the court did not dispute the government’s assertion that its inabil-
ity to enforce the Order in the respondent States for the November 2026 election
would cause irreparable harm—the court simply found that it was insufficient to
overcome the other stay factors. App., infra, 15a. Its analysis of the injury to re-
spondents mirrored its erroneous standing analysis. Ibid. Finally, the court found
that the public interest did not favor a stay because the government did not argue
that “its actions were legal on the merits, and there is generally no public interest in
the perpetuation of unlawful government action.” Id. at 15a-16a (quotation marks
omitted). As explained, the President’s decision to direct his subordinates to consider
appropriate action that is “consistent with applicable law” was entirely lawful. That
the government has not tried in this posture to defend the merits of hypothetical
agency action does not mean the public interest is served by precluding the Executive
Branch from pursuing lawful action pursuant to a presidential directive.
30
CONCLUSION
This Court should stay the injunction of the United States District Court for
the District of Massachusetts, pending the resolution of the government’s appeal to
the United States Court of Appeals for the First Circuit and any proceedings in this
Court, and grant an immediate administrative stay.
Respectfully submitted.
D. JOHN SAUER
Solicitor General
JULY 2026
APPENDIX
Court of appeals order denying stay (July 25, 2026) .............................................................. 1a
District court memorandum and order denying stay
(July 7, 2026) ...................................................................................................................21a
District court memorandum and order granting summary judgment
(June 25, 2026).................................................................................................................28a
District court memorandum and order granting motion to dismiss in part
(June 18, 2026).................................................................................................................65a
Case: 26-1774 Document: 00118481937 Page: 1 Date Filed: 07/27/2026 Entry ID: 6828856
United States Court of Appeals
For the First Circuit
_____________________
Nos. 26-1774, 26-1779
STATE OF CALIFORNIA; COMMONWEALTH OF MASSACHUSETTS; STATE OF
NEVADA; STATE OF WASHINGTON; STATE OF ARIZONA; STATE OF COLORADO;
STATE OF CONNECTICUT; STATE OF DELAWARE; DISTRICT OF COLUMBIA; STATE
OF ILLINOIS; STATE OF MAINE; STATE OF MARYLAND; STATE OF MICHIGAN;
STATE OF MINNESOTA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE
OF NEW YORK; STATE OF NORTH CAROLINA; STATE OF OREGON; STATE OF
RHODE ISLAND; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA; STATE OF
WISCONSIN; JOSH SHAPIRO, in the official capacity as Governor of the Commonwealth of
Pennsylvania,
Plaintiffs, Appellees,
v.
DONALD J. TRUMP, in the official capacity as President of the United States; UNITED
STATES DEPARTMENT OF JUSTICE; TODD BLANCHE, in the official capacity as Acting
United States Attorney General; UNITED STATES DEPARTMENT OF HOMELAND
SECURITY; MARKWAYNE MULLIN, in the official capacity as Secretary of the United
Stated Department of Homeland Security; UNITED STATES SOCIAL SECURITY
ADMINISTRATION; FRANK BISIGNANO, in the official capacity as Commissioner of the
United States Social Security Administration; UNITED STATES POSTAL SERVICE; DAVID
STEINER, in the official capacity as Postmaster General and Chief Executive Officer of the
Postal Service; DOUG TULINO, in the official capacity as Deputy Postmaster General, Chief
Operating Officer, and Chief Human Resources Officer of the Postal Service and Member of the
Postal Service Board of Governors; AMBER MCREYNOLDS, in the official capacity as Chair
of the Postal Service Board of Governors; DEREK T. KAN, in the official capacity as Vice
Chairman of the Postal Service Board of Governors; RONALD STROMAN, in the official
capacity as a Member of the Postal Service Board of Governors; DANIEL TANGHERLINI, in
the official capacity as a Member of the Postal Service Board of Governors,
Defendants, Appellants,
STATE OF ALABAMA; STATE OF MISSOURI; STATE OF FLORIDA; STATE OF
INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MONTANA; STATE
(1a)
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OF NEBRASKA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF
SOUTH DAKOTA; STATE OF TEXAS,
Interested Parties, Appellants.
__________________
Before
Gelpí, Rikelman, and Dunlap,
Circuit Judges.
__________________
ORDER OF COURT
Entered: July 25, 2026
Under the Constitution, state and local officials are responsible for administering federal
elections. In the spring of 2026, President Trump issued an executive order with nationwide effects
on how state and local officials can administer federal elections, including the upcoming primary
and general elections in September and November. In particular, the executive order directed
substantial involvement by the United States Postal Service in deciding which ballots sent to and
from voters would be delivered. The plaintiffs in this case -- 23 states and the District of Columbia
(the "Plaintiff States") -- filed this lawsuit against the President, federal agencies, and agency heads,
challenging the executive order as ultra vires and unconstitutional. The district court entered final
judgment in favor of the Plaintiff States as to some of their claims and enjoined most of the
defendants (but not the President) from implementing certain provisions of the executive order,
but only as to federal elections on or before November 3, 2026, and only in the Plaintiff States.
The federal defendants and 12 states that intervened in the case in support of the executive order
have now filed separate motions seeking a stay of the district court's injunction pending appeal,
arguing only that the Plaintiff States lack standing to bring their claims and that those claims are
not ripe. We deny their motions.
I. BACKGROUND
On March 31, 2026, President Trump issued Executive Order 14399: "Ensuring
Citizenship Verification and Integrity in Federal Elections" (the "EO"). 91 Fed. Reg. 17125
(Mar. 31, 2026). The EO targets voting by mail. In Section 1, titled "Purpose and Policy," the EO
declares that "[t]o enhance election integrity via the United States Mail, additional measures are
necessary." Id. at 17125. It then directs federal agencies and officials to take certain actions at
specific times in the months leading up to "regularly scheduled Federal election[s]," including the
November 3, 2026 election. Id.
This lawsuit focuses on Sections 2, 3, and 5 of the EO. Section 2 is titled "Establishment
and Transmission of State Citizenship Lists and Prioritization of Investigations and Prosecutions
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Related to Election Fraud." Id. Section 2(a) directs the Department of Homeland Security (DHS),
along with other agencies, to compile lists of "individuals confirmed to be United States citizens
who will be above the age of 18 at the time of an upcoming Federal election and who maintain a
residence in the subject State" ("DHS Citizenship Lists"). Id. Under Section 2(a), federal officials
"shall . . . transmit" the DHS Citizenship Lists to state election officials "no fewer than 60 days
before each regularly scheduled Federal election," meaning by September 4, 2026, for the
November 3, 2026 general election. Id. Also, DHS "shall establish procedures" to permit
individuals to "access" and "update" their records and states "to routinely supplement and provide
suggested modifications or amendments" to these lists. Id. Section 2(b) orders the Attorney
General to "prioritize the investigation and . . . prosecution" of two groups of individuals and
entities: (1) "State and local officials or any others involved in" federal election administration
who issue ballots to individuals not eligible to vote in federal elections and (2) "individuals and
public or private entities engaged in . . . the printing, production, shipment, or distribution of
ballots to individuals" not eligible to vote in federal elections. Id. at 17126.
Section 3 of the EO is titled "United States Postal Service Rulemaking on Mail-In and
Absentee Ballots," and focuses on the United States Postal Service (USPS). Section 3(b) directs
the Postmaster General to "initiate a proposed rulemaking" within 60 days of the EO's issuance to
"protect the integrity of the mail" in federal elections. Id. The notice of proposed rulemaking
"shall include, at minimum," various requirements for the design of envelopes used by state and
local officials to enable voting by mail, including specific markings and unique barcodes for all
such envelopes.1 Id. Section 3(b) then requires that the proposed rule provide that "all outbound
ballot mail" sent by states and localities to voters "must be mailed" in such envelopes and that
USPS "shall not transmit mail-in or absentee ballots from any individual" voter unless the
individual's name appears on a state-specific list. Id. Finally, Section 3(d) directs that "[a]ny final
rule" adopted pursuant to Section 3 "shall be issued no later than 120 days from the date of" the
EO, meaning by July 29, 2026. Id. at 17127.
Section 5, titled "Enforcement," orders the Attorney General and agency heads to "take all
lawful steps to deter and address noncompliance with Federal law" by the two groups targeted by
the order: "State or local election officials" and "public or private entities engaged in" ballot
printing or distribution. Id. For example, it directs federal officials to "withhold[] Federal funds
from noncompliant States and localities where such withholding is authorized by law." Id. It
invites referral to the Department of Justice of "[e]vidence of violations" by these two groups for
"consideration of investigation or charges." Id. Section 5 also requires states and localities to
"preserve, for a 5-year period, all records and materials" related to voter participation in federal
elections. Id.
In early April, the Plaintiff States brought this action against the President and the various
agencies and agency heads identified in the EO. In their amended complaint, they challenged
Sections 2, 3, and 5 of the EO as ultra vires and unconstitutional, in violation of the separation of
1
USPS issued a proposed rule on June 2, 2026. See Ballot Mail for Federal Elections, 91
Fed. Reg. 32915 (proposed June 2, 2026) (to be codified at 39 C.F.R. pt. 111).
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powers, the Elections and Electors Clauses, and the Tenth Amendment's anti-commandeering
doctrine. See U.S. Const. art. I, § 4, cl. 1; id. art. II, § 1, cl. 2; id. amend. X.
The federal defendants and the intervenor states (collectively, the "Government") moved
to dismiss the Plaintiff States' claims for lack of ripeness and Article III standing, as well as on the
merits.2 The district court ultimately granted the motion in part. In an initial ruling, the district
court addressed the ripeness challenge and reserved on the other arguments.3 It dismissed without
prejudice the Plaintiff States' claims on prudential ripeness grounds as to federal elections
occurring after November 3, 2026. It reasoned that postponing judicial review of the EO "as it
relates to distant elections will pose little hardship." By contrast, the court concluded that the
Plaintiff States' claims as to the November 2026 elections were ripe for review because the EO
created a "direct and immediate dilemma" for the Plaintiff States. (Quoting Stern v. U.S. Dist. Ct.
for the Dist. of Mass., 214 F.3d 4, 10 (1st Cir. 2000) (citation modified).)
One week later, the district court granted the Plaintiff States' motion for summary judgment.
It concluded, given the undisputed facts in the summary judgment record, that the Plaintiff States
had standing to sue based on both current and certainly impending injuries. Among these injuries,
the court explained, were planning and compliance costs and the threat of criminal prosecution.
To start, the district court determined that the Plaintiff States are "experiencing injury now"
because the EO disrupted their ongoing efforts to administer multiple elections in the coming
months. As the court pointed out, it was uncontroverted that, at the time they filed their lawsuit,
the Plaintiff States were "actively administering or preparing to administer federal
primaries" -- some of which are scheduled for as early as September 2026 -- and "preparing to
administer the November 2026 general election." And, by the time they filed their summary
judgment motion, certain Plaintiff States "already had to pull elections staff from critical projects
required by statute" to "develop a compliance plan for the EO," given that the EO directs multiple
changes to the voting-by-mail process. The court also determined that, both for legal and practical
reasons, the Plaintiff States could not delay these planning and compliance efforts. For example,
in several of the Plaintiff States, statutes require officials to provide mail-in ballots to individuals
eligible to vote by mail weeks in advance, and thus they "must plan to comply with the EO's
directives on mail ballots" now. These state statutory obligations were "undisputed" by the
Government. And as a practical matter, the court relied on record evidence that delays in planning
would increase the "financial strain" on state election offices and threaten disenfranchisement of
some of the Plaintiff States' citizens.
2
Because the federal defendants and the intervenor states raise largely overlapping
arguments in their stay motions, we discuss those arguments together. The intervenor states do
press a separate argument as well, which we identify and analyze below.
3
In addition to the lawsuit by the Plaintiff States giving rise to this appeal, eight nonprofit
organizations filed a separate lawsuit also challenging the EO. The district court consolidated the
two cases pursuant to Federal Rule of Civil Procedure 42(a) but only for limited purposes. Its
initial ruling on prudential ripeness applied to both cases. Its subsequent summary judgment ruling
now on appeal to us, however, applied only to the Plaintiff States' claims.
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Relatedly, the district court determined that the Plaintiff States faced certainly impending
compliance costs from the EO's directives. For example, it noted that "[n]early half of [the]
Plaintiff States have already purchased mail ballot envelopes for the 2026 federal election cycle
that will not be in compliance with the requirements" listed in the EO, assuring that they will incur
monetary costs from any change required by USPS. And the states would have no choice but to
purchase new envelopes: The EO directs USPS to propose a rule that it will not "transmit"
non-compliant mail-ballot envelopes. See 91 Fed. Reg. at 17125-26. Thus, it was "undisputed"
by the Government that, absent an injunction, the Plaintiff States "will incur compliance costs" in
the coming weeks or months.
Finally, the district court concluded that the Plaintiff States faced a credible threat of
criminal prosecution under the EO. Reading the EO as a whole, the court determined that multiple
sections of the EO "implicitly threaten[ed] enforcement" of federal criminal statutes against state
and local officials who, for example, furnished ballots to voters who are not included on the DHS
Citizenship Lists. And, the court pointed out, the Government conceded that any list it compiled
under Section 2(a) would "necessarily be incomplete," based on the limitations of its own records,
meaning that some citizens who were eligible to vote in a particular state nevertheless would be
missing from the list. Reading the EO based on those undisputed facts, the court reasoned that the
threat of criminal enforcement was "sufficiently imminent" as to the 2026 elections to create
Article III injury. Thus, the court determined that the Plaintiff States had standing to challenge the
EO.
The district court then turned to the merits. It ultimately concluded that the President
lacked constitutional authority to order changes to how states and localities administer federal
elections. The federal defendants and the intervenor states then filed separate notices of appeal
and motions to stay in the district court. The court denied the stay motions.
On July 7, 2026, the district court entered its final judgment.4 It declared that Sections 2
and 3 are "ultra vires and violate the separation of powers." Then, it enjoined the federal
defendants, not including the President, from "implementing, giving effect to, or enforcing"
Sections 2 and 3 of the EO "as to [the] Plaintiff States with respect to the November 3, 2026 or
any earlier federal election." Notably, the court did not enjoin the federal defendants from taking
any actions under Sections 2 and 3 in states other than the Plaintiff States for federal elections on
or before November 3, 2026. Nor did it enjoin the federal defendants from taking such actions in
any state for federal elections after November 3, 2026. Finally, the court dismissed with prejudice
the Plaintiff States' challenge to the recordkeeping portion of Section 5 based on its ruling that this
portion of the EO was merely "precatory."
4
Although the district court entered final judgment after the notices of appeal were filed,
we have appellate jurisdiction under Federal Rule of Appellate Procedure 4(a)(2) because the
district court's order "announce[d] a decision purporting to dispose of all of [the Plaintiff States']
claims." FirsTier Mortg. Co. v. Invs. Mortg. Ins., 498 U.S. 269, 277 (1991); see Fed. R. App. P.
4(a)(2) ("A notice of appeal filed after the court announces a decision or order -- but before the
entry of the judgment or order -- is treated as filed on the date of and after the entry.").
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That same day, the federal defendants filed this emergency motion to stay the district
court's injunction pending appeal. The separate stay motion of the intervenor states followed.
II. LEGAL STANDARD
"'A stay is an intrusion into the ordinary processes of administration and judicial review'
and is not granted as 'a matter of right.'" Washington v. HUD, 171 F.4th 473, 488 (1st Cir. 2026)
(quoting Nken v. Holder, 556 U.S. 418, 427 (2009)). In seeking a stay, the Government bears the
burden of showing that it is "entitled to this 'extraordinary remedy' under Nken's familiar
four-factor test." Id. (quoting Nken, 556 U.S. at 437 (Kennedy, J., concurring)).
Under the Nken test, the Government must (1) make "a strong showing" that it is likely to
succeed on the merits of its appeal and also show that (2) it "will be irreparably injured absent a
stay"; (3) the issuance of the stay will not "substantially injure the other parties interested in the
proceeding"; and (4) the public interest weighs in favor of a stay. Id. (quoting Nken, 556 U.S. at
434). The first two factors are the "most critical." Id. (quoting Nken, 556 U.S. at 434). When
assessing the fourth factor, "we consider the interests of the public in general," including American
voters, "not just the interests of the parties." Id.
Because "addressing interlocutory motions on a tight timeline is not always optimal for
orderly judicial decisionmaking," in this posture we are "especially . . . rel[iant] on the parties to
frame the issues for decision." New York v. Trump, 133 F.4th 51, 66 (1st Cir. 2025) (citation
modified).
III. DISCUSSION
Before analyzing the Nken factors, we set out the scope of the issues presented to us in the
stay motions. Although the district court held that the EO is unconstitutional, that question is not
presently before us because the Government does not defend the legality of the EO in requesting
a stay. Instead, it argues only that the Plaintiff States do not have standing to challenge the EO
because their claims are premature. And its standing and ripeness arguments focus on a single
claim: that the EO was not injuring the Plaintiff States at the time they filed their complaint, and
that it would not injure them soon, because the federal defendants were still implementing it.
The Government also does not contest the district court's assessment of the summary
judgment record that informed its final ruling.5 Before the district court, the Government did not
dispute the declarations and other factual submissions by the Plaintiff States. And in its request
for a stay pending appeal, it contests only the legal implications of those undisputed facts.
Finally, the Government has conceded several points in the district court and in its motion
to our court. For example, it concedes that the federal defendants have been moving ahead to
implement the directives in the EO, including by "[e]stablishing infrastructure to" "compile,
maintain, and transmit [the DHS] Citizenship Lists" and "taking steps to create a [USPS] portal"
for collecting information about individuals who are eligible to vote by mail. The Government
5
The intervenor states largely ignore the summary judgment record and cite instead to
allegations in the Plaintiff States' complaint in their stay motion.
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also has conceded that it seeks to enforce the EO nationwide for the November 2026 election and
would do so but for the district court's injunction. And the Government has indicated that it may
use the DHS Citizenship Lists to conduct investigations and potential criminal prosecutions of
state and local officials. As we will explain, these concessions undermine its arguments that the
Plaintiff States lack standing to challenge the EO because their claims are premature.
A. Likelihood of Success on the Merits
The parties' dispute centers on whether the Plaintiff States have suffered an injury in fact
to establish their standing to sue and, relatedly, whether the Plaintiff States' claims are ripe for
review. We conclude that the Government has not made a "strong showing" that it is likely to
prevail on its standing and ripeness arguments on appeal. Washington, 171 F.4th at 488 (quoting
Nken, 556 U.S. at 434).
1. Article III Injury
Article III of the Constitution grants federal courts jurisdiction to decide only those legal
disputes that qualify as "Cases" or "Controversies." U.S. Const. art. III, § 2, cl. 1. To establish
Article III standing, a party must meet a familiar three-part test and show that it has "suffered an
injury in fact" that is caused by the "conduct complained of" and that will likely be "redressed by
a favorable decision." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (citation modified).
The asserted injury must be "concrete, particularized, and actual or imminent." TransUnion LLC
v. Ramirez, 594 U.S. 413, 423 (2021). The doctrines of standing and ripeness "originate from the
same Article III limitation" and can "boil down to the same question": "whether the harm asserted
has matured sufficiently to warrant judicial intervention." Jensen v. R.I. Cannabis Control
Comm'n, 160 F.4th 18, 24 (1st Cir. 2025) (citation modified).
The Government focuses on the injury-in-fact requirement and contends that the Plaintiff
States' alleged injuries are merely speculative. According to the Government, the Plaintiff States
have not suffered any current or impending injuries from the EO itself and are basing their claims
on "potential future actions agencies may take to implement it." In particular, the Government
emphasizes that Section 2(a) imposes no obligations on the Plaintiff States and USPS has not
finalized the details of its new rule.
The district court concluded that the Plaintiff States had suffered three current or certainly
impending injuries that were sufficient to satisfy the requirements of Article III. In opposing the
Government's stay motion, the Plaintiff States also point to a fourth injury: the EO's intrusion into
their sovereign interests in administering state elections consistent with the Constitution and state
statutes. To secure a stay, the Government would need to make a strong showing that it is likely
to succeed on appeal in demonstrating that none of these injuries are sufficient to confer Article III
standing. We conclude that it has not done so with the arguments presented in the stay motions.
First, the district court concluded that the EO imposed a present injury because it required
Plaintiff States to begin planning now on how to comply with its directives, given that the
September and November elections were just months away. As the Plaintiff States put it, the EO
"require[s] [them] to expend time and resources now to prevent . . . chaos, confusion, and
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disenfranchisement." See, e.g., Sierra Club v. U.S. Dep't of Transp., 125 F.4th 1170, 1181 (D.C.
Cir. 2025) (holding states had standing to challenge suspended regulation that caused it to
"undertake expenditures to mitigate and recover from harms that could have been prevented if that
regulation had not been enacted" (citation modified)). For example, the summary judgment record
reflects that the EO has forced Connecticut officials to take "immediate action," including by
"coordinat[ing] with other state and local agencies" to develop a plan that would achieve the EO's
stated goals "on the designated timeline and with no financial support." As part of that planning,
officials worked to identify and develop the "technical specifications . . . necessary" to share "large
volumes of confidential data" comprising state citizenship and voting information with the federal
defendants, as contemplated under Sections 2 and 3 of the EO, and consistent with applicable
privacy and disclosure laws. Further, given the truncated timing, including the fast-approaching
deadline to prepare and review voter lists described in the EO, Connecticut and multiple other
states have had to "plan for and begin" "providing training and guidance to elections officials" to
comply with the EO's terms. And given their limited resources, the states' efforts have necessarily
entailed a diversion of staff time and attention from other pressing election-related tasks -- such as
preparing public-education materials for voters and rolling out new voting technology -- to
coordinate the implementation of the changes articulated in the EO. All told, between the
compressed timelines and anticipated changes to states' election processes, the summary judgment
record indicates that the EO has already "produced an incredible strain" on state election officials
and their teams.
In its stay motion, the Government does not dispute that the Plaintiff States have begun
expending time and "divert[ing] resources" in reaction to the EO. Rather, it responds only that the
EO does not mandate any immediate efforts on their part. Thus, in the Government's view, the
Plaintiff States that have begun preparing for the EO's directives have done so "voluntarily" and
based only on possible government conduct, which it maintains cannot support standing under the
Supreme Court's decisions in Clapper v. Amnesty International USA, 568 U.S. 398 (2013), and
Trump v. New York, 592 U.S. 125 (2020).
The Government's suggestion that the Plaintiff States' injuries here are akin to those held
insufficient in Clapper is unpersuasive given the different facts of that case. Clapper involved a
challenge to a new federal statute that, in some circumstances, authorized government surveillance
without probable cause of communications by foreign citizens located outside the United States.
See 568 U.S. at 404-05. The plaintiffs included individual attorneys, who were United States
citizens, and advocacy organizations, all of which were located inside the United States. See id.
at 401, 406. The Supreme Court explained that the statute in question did not target the plaintiffs,
so their claims that their communications with foreign citizens would ever be surveilled under its
terms, as opposed to other federal statutes, relied entirely on "the decisions of independent actors,"
id. at 414, and a series of additional "contingencies," id. at 410. See id. at 410-16. Thus, the Court
concluded that the plaintiffs' various pocketbook costs and changes to their processes in response
to the statute's enactment could not support standing because they were "incurred in response to a
speculative threat." Id. at 416 (stating that litigants "cannot manufacture standing merely by
inflicting harm on themselves based on their fears of hypothetical future harm").
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But unlike the relationship between the plaintiffs and the statute they challenged in Clapper,
the EO targets the Plaintiff States explicitly and repeatedly. Further, state and local officials are
assigned primary responsibility for administering federal elections under the Constitution, and the
EO directs various changes to the voting-by-mail process for these elections that will impact how
those officials administer elections, regardless of the details of USPS's final rule. See U.S. Const.
art. I, § 4, cl. 1; art. II, § 1, cl. 2.
As a result, the Government has failed to convince us that the impact of the EO on the
Plaintiff States is "hypothetical" in the sense of the plaintiffs' alleged harms in Clapper. As the
district court reasoned, the EO lays out a clear set of rapidly approaching deadlines by which states
must coordinate with federal officials and comply with new voting procedures -- all while the
states must also ensure that their officials and the public understand the evolving set of rules that
would govern the upcoming September and November elections. The Plaintiff States have no
practical choice but to respond to the EO now.6 See Merrill v. Milligan, 142 S. Ct. 879, 880 (2022)
(Kavanaugh, J., concurring) (emphasizing that "state and local election officials need substantial
time to plan for elections" because "[r]unning elections state-wide is extraordinarily complicated
and difficult . . . and pose[s] significant logistical challenges").
Given the undisputed summary judgment record, we are also unpersuaded by the
Government's contention that New York is "indistinguishable" from this case. New York
concerned a presidential memorandum calling for the Secretary of Commerce to produce a report
that might, in the future, allow the President to exclude undocumented immigrants from the official
population counts that would be used to apportion congressional seats. See 592 U.S. at 129-30.
Although the district court had concluded that the plaintiffs had standing based on the
memorandum's chilling effect on census responses by immigrants, the plaintiffs conceded that this
impact had dissipated by the time the case reached the Supreme Court. See id. at 130-31. The
Court then concluded that the dispute was not ripe for review for several reasons: the Secretary of
Commerce had already conducted the census using the normal procedures; the government
conceded that it would not be possible to exclude all undocumented immigrants from the official
population count the Secretary would transmit to the President; and it was not clear that a partial
exclusion could have any impact on apportioning congressional seats or federal funding to the
states, or that any such changes could be made before a looming deadline. See id. at 132-33. Thus,
at the time of the Supreme Court's decision, it was speculative whether the presidential
memorandum would have any impact at all on the plaintiffs. See id. at 131.
The Government has failed to explain how New York is controlling given the substantially
different and undisputed facts of this case. In New York, there was no claim of present injury
whatsoever, whereas the (far more specific) EO here, which is designed to affect elections just
weeks away, has already forced the Plaintiff States into action. In New York, the plaintiffs failed
to show that any future injury was imminent or would ever occur. By contrast, if the district court's
6
The Government's reliance on FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367,
394 (2024), is even further afield. The Plaintiff States' injuries in fact have nothing to do with
"public advocacy." Id. Instead, they are taking actions necessary to administer fast-approaching
elections as the Constitution, federal statutes, and state laws require.
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injunction is lifted, the Plaintiff States will promptly be forced to divert staff resources and incur
costs flowing from the EO in the coming days and weeks. In New York, there was "[n]othing in
the record" showing that congressional apportionment would be affected by a "partial
implementation of the memorandum," which the parties agreed was the only way it could be
implemented at all. Id. at 133. Here, the Government does not dispute, as a factual matter, the
EO's current and impending effects on the Plaintiff States, irrespective of how exactly USPS
implements it. Thus, the nature, timing, and certainty of the Plaintiff States' injuries are all distinct
from those in New York.
The Government next relies on Trump v. American Federation of Government Employees,
145 S. Ct. 2635 (2025), but that case also does not support its stay request. In a two-paragraph
order, the Supreme Court stayed a preliminary injunction in a challenge to an executive order
directing the Office of Management and Budget to submit plans to the President to reduce the size
of the federal government's workforce. See id. at 2635. The Supreme Court's order did not address
the plaintiffs' standing to sue or the ripeness of their claims, which were not at issue. To the
contrary, the Court stayed the injunction because it determined that the defendants were likely to
succeed on the merits of their argument that the executive order was lawful. See id. The
Government points to Justice Sotomayor's one-paragraph concurrence, which observed that "[t]he
plans themselves are not before this Court, at this stage," and thus the Court had "no occasion to
consider whether they can and will be carried out consistent with the constraints of law." Id.
(Sotomayor, J., concurring). But, again, that was a discussion of the merits of the plaintiffs' claims,
and the Government has failed to explain how that discussion is relevant to the standing and
ripeness issues on which its stay motion is based.7
7
The Government discusses two other cases, filed outside this Circuit, related to the EO.
In one, a private plaintiff moved to enforce USPS's compliance with a settlement agreement arising
from a lawsuit related to the 2020 federal election, which had alleged claims under the
Administrative Procedure Act. See NAACP v. USPS, No. 20-cv-2295, 2026 WL 1893762 (D.D.C.
July 1, 2026). The district court granted the motion and enjoined USPS from implementing its
proposed rule pursuant to Section 3 of the EO, reasoning that the proposed rule would violate the
parties' settlement agreement. See id. at *4, *7. Subsequently, the U.S. Court of Appeals for the
District of Columbia Circuit stayed that order. Order, NAACP v. USPS, No. 26-5257 (D.C. Cir.
July 17, 2026). The D.C. Circuit indicated that it reached that decision based on the government's
arguments that the plaintiff's claims were not ripe, the EO likely would not violate the settlement
agreement, and the government would experience irreparable harm from an order that prohibited
USPS from promulgating a final rule. The court did not provide its reasoning for those
determinations. See id. In the other case, the district court held in part that the plaintiffs, private
organizations representing individual voters and candidates, had not shown that the EO would
affect particular voters' ability to vote or particular candidates' ability to win. See DSCC v. Trump,
Nos. 26-cv-01114, 26-cv-01132, 26-cv-01151, 2026 WL 1487833, at *6-7, *9 (D.D.C. May 28,
2026). These decisions have limited bearing here given the substantial factual differences in the
three cases. For example, only in this case are the plaintiffs the very states and state officials that
the EO identifies and targets.
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Second, the district court concluded that the Plaintiff States faced certainly impending
pocketbook injuries from the EO's direction that USPS control the design of envelopes in all
federal voting-by-mail processes. In doing so, it relied on the summary judgment record, which
indicated that several states had already ordered mail-ballot envelopes for the 2026 federal election
cycle around the time they filed their complaint. Indeed, as of April 2026, Massachusetts alone
had already purchased $3 million-worth of envelopes for mail-in ballots. Yet Section 3(b) of the
EO directs USPS to propose a rule that "shall include, at minimum," a requirement for all
mail-ballot envelopes to "bear[] a unique Intelligent Mail barcode" and logo marking the envelope
as "Official Election Mail." 91 Fed. Reg. at 17126. The court determined that redesigning
mail-ballot envelopes to conform to the EO's express requirements would unquestionably impose
financial costs on the Plaintiff States. As one Rhode Island official explained, because the state
had already purchased mail-ballot envelopes, "[c]hanging [the state's] envelope order . . . would
cost the state tens of thousands of dollars that was not budgeted." And even beyond ordering new
envelopes and devoting staff time to coordinating with USPS about the new envelope design
requirements, several states have indicated that they would incur significant other costs as a result
of the EO, including to update training materials for local election officials and their staffs.
Again, the Government has failed to demonstrate any error in the district court's analysis,
especially because, during the district court proceedings, it did not contest that several states had
already purchased mail-ballot envelopes and even conceded "that making design changes to
mail-ballot envelopes or adding Intelligent Mail barcodes would add costs to Plaintiff States." The
Government nevertheless argues in its stay briefing that these anticipated pocketbook injuries
cannot support standing because USPS has not yet issued a final rule implementing Section 3 of
the EO.
As the district court determined, the summary judgment record reflects that any change to
the kind of envelopes state and local officials must use for voting by mail will necessarily force
the Plaintiff States to incur monetary and operational costs. The Government does not put forward
any argument that USPS will not issue a final rule or will issue a final rule that provides no new
design requirements for the envelopes used by the states in their voting-by-mail processes. Thus,
we fail to see how it has made a strong showing that the Plaintiff States will incur no costs as a
result of the EO. And the only question before us in assessing Article III standing is whether the
Plaintiff States will incur any pocketbook injuries, not the magnitude of those injuries. See
Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 464 (2017) ("For standing purposes, a loss of
even a small amount of money is ordinarily an 'injury.'").
In any event, as the Supreme Court held just last year, a litigant at "substantial risk [of]
harm" from a government policy need not "wait and see" how exactly it will be implemented to
bring suit. See Mahmoud v. Taylor, 606 U.S. 522, 559-60 (2025) (allowing pre-enforcement
challenge to county's Board of Education policy of encouraging the use of certain education
material without "specific allegations describing how the books are actually being used in
classrooms" (citation modified)). With its arguments, the Government has failed to make a strong
showing that the Plaintiff States do not face a "substantial risk" of incurring traditional pocketbook
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injuries as a result of the EO and thus must "wait and see" the exact logo or barcode that USPS
will require for mail-in ballots before filing suit. Id.
Third, the district court concluded that the EO threatens the Plaintiff States and their
officials with criminal penalties if they do not comply with its directives and that the "threat is
sufficiently imminent for Article III injury." For example, reading Section 2(a) and 2(b) of the EO
together, the court determined that the Plaintiff States faced a credible threat of criminal
prosecution if they failed to use the DHS Citizenship Lists to verify voter eligibility in upcoming
elections, even though the undisputed record demonstrated that those lists would necessarily be
underinclusive when transmitted to the states. The court also discussed that Section 2(b)'s
definition of individuals who are "eligible to vote in a Federal election" as limited to U.S. citizens
who are "18 years of age or older by the date of the upcoming election" conflicted with laws in
some states permitting certain 17-year-old residents to vote in federal primary elections. As a
result, the court highlighted that officials in those Plaintiff States credibly feared prosecution for
delivering ballots to eligible 17-year-old voters in connection with federal primary elections.
For its part, the Government has not explained why the district court's interpretation of the
EO's text as threatening the Plaintiff States with criminal prosecution if they violate its directives
is incorrect, other than to suggest that the DHS Citizenship Lists do not expressly "require the
[Plaintiff] States to do anything." In making this argument, the Government reads each section of
the EO in isolation and all but ignores Section 2(b). At the same time, it does not point to any
precedent undermining the court's determination that it was required to interpret the EO as a whole,
just as it would any statute.8 Cf. Otero-Burgos v. Inter Am. Univ., 558 F.3d 1, 8 (1st Cir. 2009)
("Instead of culling selected words from a statute's text and inspecting them in an antiseptic
laboratory setting, a court engaged in the task of statutory interpretation must examine the statute
as a whole . . . ." (citation modified)). And other precedent supports the court's conclusion that the
Plaintiff States face an imminent and credible threat of penalties if they do not use USPS-designed
envelopes or permit voters who are not on the DHS-provided Citizenship Lists to vote in any
federal election. See N.H. Lottery Comm'n v. Rosen, 986 F.3d 38, 50 (1st Cir. 2021) (explaining
that "the threatened enforcement of a law may suffice" for standing even without "an actual arrest,
prosecution, or other enforcement action" (citation modified)).
Importantly, in challenging the district court's interpretation of the EO, the Government
overlooks that the EO expressly targets state and local officials, both overall and in numerous
8
Our dissenting colleague would grant the stay as to the portions of the district court's
judgment concerning Section 2(a) and, in part, 2(b), on the ground that those specific provisions
of the EO do not inflict any injury on the Plaintiff States. The district court, however, read
Section 2(b) as enforcing Section 2(a), based on both the EO's text and the Government's
concessions. And in its stay motion to our court, the Government never argued or explained why
it would be likely to succeed in showing that the Plaintiff States could not challenge Section 2(a)
and part of 2(b) even if they had standing to challenge the rest of the EO. See American Federation
of Government Employees Local 2305 v. U.S. Dep't of Veterans Affs., 177 F.4th 1, 11 n.2 (1st
Cir. 2026) (noting that we do not rule on jurisdictional arguments that are not raised when
"considering whether to stay an order's operation" (citation modified)).
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subsections. See 91 Fed. Reg. at 17125-27 (Sections 2, 3, and 5). The EO also expressly directs
"the investigation and, as appropriate, the prosecution of State and local officials" who violate
federal law, invites referral to the Attorney General of any such violations by "State or local
election officials" or "States or localities, including any instrumentalities thereof," and threatens
the withholding of funding. Id. at 17126-27 (Sections 2(b) and 5). The Government does not
explain why the district court's reading of the EO is incorrect given these provisions.
The Government's stay arguments on this issue are further undermined by its
representations before the district court. In fact, the Government repeatedly indicated below that
the DHS Citizenship Lists could be used to "facilitate . . . post-election law-enforcement activity,"
including prosecuting violations of laws that "explicitly prohibit non-citizens from registering to
vote." (Quoting 91 Fed. Reg. at 17125.) And when the district court asked whether the
Government would have probable cause to prosecute a state official merely for sending a ballot to
someone not on the DHS Citizenship Lists, the Government's counsel equivocated, stating: "I don't
know the answer to that question, Your Honor." State and local officials are no exception to the
commonsense rule that "[p]eople do not lightly disregard public officers' thinly veiled threats to
institute criminal proceedings against them if they do not come around." Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 68 (1963); see also Dep't of Com. v. New York, 588 U.S. 752, 785 (2019)
(explaining that, in their legal rulings, courts "are 'not required to exhibit a naiveté from which
ordinary citizens are free'" (quoting United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir.
1977))). Thus, the Government has not met its burden to show that it is likely to succeed on appeal
in demonstrating that none of the injuries to the Plaintiff States credited by the district court were
sufficient to establish an Article III controversy.
Finally, the Plaintiff States oppose the Government's request for a stay by arguing that the
EO "burdens [their] sovereign interests by interfering with their ability to carry out state laws
regarding mail voting and voter eligibility." Although the district court did not address the Plaintiff
States' sovereign interests in its standing analysis, it did recognize throughout its ruling that states
have a unique and primary role in administering elections, including federal elections. See U.S.
Term Limits, Inc. v. Thornton, 514 U.S. 779, 805 (1995) (observing that the Constitution
"express[ly] delegat[es] . . . power to the [s]tates to act with respect to federal elections").
The EO directs unprecedented levels of involvement by federal officials in how states
administer elections. In doing so, the EO plainly affects the Plaintiff States' "sovereign
power . . . to create and enforce a legal code" for elections. Alfred L. Snapp & Son, Inc. v. Puerto
Rico ex rel. Barez, 458 U.S. 592, 601 (1982). Regardless of the details of how federal officials
implement the EO, at its core, the EO contemplates that states will have to coordinate with DHS
and USPS to ensure that various lists, whether maintained by the agencies or the states, reflect
current mail-voter information (which can change daily up until Election Day), or else risk
disenfranchisement for certain voters and penalties for states and their officials. The Supreme
Court has held that political candidates have standing to challenge mail-voting rules because of
their "interest in a fair process." Bost v. Ill. State Bd. of Elections, 607 U.S. 71, 77 (2026). In
Bost, it noted that the "untenable" and "undemocratic" consequences of waiting to hear "election
disputes . . . shortly before election day" weighed in favor of adjudication even before the rules'
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effects on the plaintiffs had come into full view. See id. at 79-80. We see no reason to treat the
Plaintiff States' similar interests, which the EO will impact well before Election Day, any
differently. Thus, these considerations further undermine the Government's ability to make a
strong showing that it will likely succeed on its standing arguments on appeal.
2. Prudential Ripeness
We turn next to the intervenor states' separate prudential ripeness argument. Although the
federal defendants address standing and ripeness together, focusing on the injury-in-fact
requirement, the intervenor states contend that we should grant a stay because the "prudential
ripeness doctrine[]" bars our review of the Plaintiff States' claims about the 2026 primary and
general elections. But the intervenor states fail to develop any argument why, if they are wrong
on the injury-in-fact analysis, they can nevertheless make a "strong showing" that they will succeed
on their prudential ripeness contentions on appeal. Washington, 171 F.4th at 488 (quoting Nken,
556 U.S. at 434).
The "prudential component[s]" of the ripeness doctrine are twofold: (1) "whether
resolution of the case turns on 'legal issues not likely to be significantly affected by further factual
development'" and (2) "whether the challenged action creates a 'direct and immediate' dilemma for
the parties." Algonquin Gas Transmission, LLC v. Weymouth, 919 F.3d 54, 62 (1st Cir. 2019)
(first quoting Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995);
and then quoting W.R. Grace & Co.--Conn. v. EPA, 959 F.2d 360, 364 (1st Cir. 1992)). We note
that the Supreme Court has left uncertain the doctrine's "continuing vitality." Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 167 (2014).
Turning to the contentions in the stay motion, the intervenor states make no argument that
the EO does not create a "direct and immediate dilemma for" the Plaintiff States. Algonquin Gas
Transmission, LLC, 919 F.3d at 62 (citation modified). Instead, they contend that the Plaintiff
States' "theories of injury turn on speculation about future events." They do not clarify, however,
how that argument differs, if at all, from their standing argument, which we addressed above.
Otherwise, the intervenor states point to factual uncertainties having to do with the precise contents
of USPS's final rule. But the Plaintiff States do not challenge the final (or any) rule; instead, they
challenge the EO as exceeding the President's authority under the Constitution. The intervenor
states fail to identify which of the "legal issues" comprising that decision require further factual
development. For example, they fail to explain why the President's power to issue the EO is not a
"purely legal question[]." Sidak v. U.S. Int'l Trade Comm'n, 174 F.4th 151, 158 (D.C. Cir. 2026).
And any implication that this case lacks "final agency action," which is a prerequisite for judicial
review under the Administrative Procedure Act (APA), is not dispositive when the Plaintiff States
have not brought an APA action and "rel[y] on an implied constitutional right of action in equity"
that has "no finality requirement." Id.
Thus, the intervenor states have not made a strong showing that they are likely to prevail
on their prudential ripeness arguments on appeal.
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B. Remaining Stay Factors
Because the federal defendants and the intervenor states have failed to make a strong
showing on their likelihood of success on the merits of their appeals, we briefly address the
remaining three Nken factors and conclude that they also do not favor a stay.
To start, the irreparable injury arguments offered by the federal defendants and the
intervenor states do not persuade us that a stay is warranted. For their part, the federal defendants
argue that the injunction will hinder their efforts to comply with the EO's deadlines in time for the
upcoming 2026 elections. Relatedly, the intervenor states contend that the injunction will
compromise their ability to ensure that their voters' mail-in ballots are securely delivered and
counted. But the district court's injunction does not prevent the federal defendants from
implementing the EO for the 2026 federal elections in states other than the Plaintiff States,
including in the intervenor states. And, of course, the district court's injunction does nothing to
prevent the federal defendants from taking steps today to implement the EO for federal elections
in all states after November 3, 2026. The federal defendants do maintain that a "two-tiered system"
of mail-ballot rules poses "operational confusion" for USPS, but the only statement in the record
supporting this claim is entirely conclusory. They do not explain why an online USPS portal
cannot be used by some states and not others or why, in a regional post office system, it is
impossible to direct changes to how election mail is handled in certain states. See New York, 133
F.4th at 72 (concluding that the defendants' "speculative and conclusory statements" failed to meet
their burden of showing irreparable injury); cf. Nken, 556 U.S. at 434-35 ("Simply showing some
possibility of irreparable injury fails to satisfy the second factor." (citation modified)). To be sure,
the injunction prevents the federal defendants from enforcing the EO in the Plaintiff States'
upcoming primary and general federal elections in September and November. But even assuming
that restriction will lead to irreparable harm, it does not overcome the federal defendants' failure
to meet their burden on the other Nken factors.
Turning to the substantial injury to the other interested parties, neither the federal
defendants nor the intervenor states grapple with the numerous "'immediate, predictable' harms"
that the Plaintiff States would face absent the injunction. Washington, 171 F.4th at 493 (quoting
R.I. State Council of Churches v. Rollins, 158 F.4th 304, 316 (1st Cir. 2025)). As we have detailed
above, the record reflects that the Plaintiff States would suffer multiple harms if the EO were
enforced, including diversion of staff time to comply with the EO, pocketbook injuries, potential
funding cuts and criminal prosecution of their officials, and sovereignty harms.
Finally, neither the federal defendants nor the intervenor states presented any argument on
the fourth stay factor, the public interest, thus waiving any argument on that aspect of the Nken
analysis. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In any event, eligible voters
have a "strong interest in exercising the fundamental political right to vote." Purcell v. Gonzalez,
549 U.S. 1, 4 (2006) (citation modified). The undisputed summary judgment record indicates that,
were the EO to take effect for the elections taking place in September and November, it would
sow confusion and threaten disenfranchisement of many eligible voters. And given that the
Government "make[s] no argument that [its] actions were legal on the merits," and "there is
generally no public interest in the perpetuation of unlawful [government] action," the public
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interest does not favor a stay. Rhode Island v. Trump, 155 F.4th 35, 50 (1st Cir. 2025) (citation
modified).
IV. CONCLUSION
For all these reasons, we deny the motions to stay.9
DUNLAP, Circuit Judge, concurring in part and dissenting in part. I conclude that
the Government and the Intervenor States have shown that Plaintiff States likely lack standing to
challenge certain, though not all, aspects of Executive Order 14399 (the "EO"). 91 Fed. Reg.
17125 (Mar. 31, 2026); see TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (to establish
standing, a party must demonstrate injury that is "concrete, particularized, and actual or imminent,"
that is "likely caused by the defendant," and that "would likely be redressed by judicial relief");
see also Town of Chester v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017) ("Our standing decisions
make clear that 'standing is not dispensed in gross.'") (quoting Davis v. Fed. Election Comm'n, 554
U.S. 724, 734 (2008)). For the following reasons, I would grant in part and deny in part the motions
to stay, staying the injunction insofar as it pertains to Section 2(a) and, in part, Section 2(b) of the
EO. See Nken v. Holder, 556 U.S. 418, 425-26 (2009) (describing factors for granting a stay).10
The Government and Intervenor States are likely to succeed in challenging Plaintiff States'
standing insofar as it relates to Plaintiff States' request for an injunction barring implementation of
Section 2(a). That provision directs the Secretary of Homeland Security to "compile and transmit"
to state election officials a list of United States citizens who will be eighteen years or older at the
time of an upcoming federal election and who maintain a residence in the subject State (the "State
Citizenship List"). Exec. Order § 2(a). Section 2(a) thus merely orders the provision of
information to States; it does not order States, including Plaintiffs, to take any action based on the
State Citizenship List. As one court has correctly noted, "nothing in Section 2(a) (or any other
9
There are two pending motions for leave to file amici briefs in relation to the stay motions.
We grant the motions, and the amici briefs are accepted for filing as of this date.
10
There is no bar to granting the motions in part as the majority suggests. Although the
Government and Intervenor States did not request a partial stay, they addressed the asserted
injuries to Plaintiff States from the various provisions of the EO (as they did below) and sought a
stay based on the argument that Plaintiff States failed to identify actual or imminent injury from
each provision. Cf. Am. Fed'n of Gov't Emps. Loc. 2305 v. U.S. Dep't of Veterans Affs., 177 F.4th
1, 11 n.2 (1st Cir. 2026) (declining to reach an argument not raised in a party's primary brief in
this court or below). Disagreement with some arguments raised by the parties does not mandate
rejection of the arguments in their entirety; we can grant less than the requested relief. See, e.g.,
Nat'l Insts. of Health v. Am. Pub. Health Ass'n, 145 S. Ct. 2658, 2658 (2025) (granting in part and
denying in part an application for stay, notwithstanding the government's request for a stay in
entirety).
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part of the [EO]) purports to require any State to do anything with the State Citizenship List it is
provided, let alone to remove otherwise eligible individuals on State voter registration lists."
DSCC v. Trump, 26-cv-01114, 2026 WL 1487833, at *6 (D.D.C. June 4, 2026). Provision of a
State Citizenship List for informative purposes, allowing (but not requiring) States to use the list
as a resource to check their own voter registration rolls, would cause Plaintiff States no injury.
Because any injury from the compilation and distribution of State Citizenship Lists is thus
speculative and hypothetical, Plaintiff States can show no harm stemming from that provision and
lack standing to challenge Section 2(a). See Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409
(2013) (noting that "threatened injury must be certainly impending to constitute injury in fact"
(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))); see generally Katz v. Pershing, LLC,
672 F.3d 64, 79 (1st Cir. 2012) (standing absent where harm was "purely theoretical" and "d[id]
not rise to the level of a reasonably impending threat").
My colleagues raise enforcement concerns, citing Section 2(b), as the basis for concluding
that the Government and the Intervenor States have failed to show a likelihood of success as to
their challenge to Plaintiff States' standing regarding Section 2 generally. That provision directs
the Attorney General to prioritize investigation and prosecution of State and local officials "who
issue Federal ballots to individuals not eligible to vote in a Federal election." Exec. Order § 2(b).11
"[E]ligible to vote in a Federal election" is in turn defined to include "citizen[s] of the United States,
18 years of age or older by the date of the upcoming election, and otherwise qualified" to vote
under state law. Id. I agree that imminent enforcement of a voting-age requirement (not
established by federal statute) that conflicts with certain States' laws permitting voting by certain
17-year-olds in primaries suggests that those States would have standing to challenge that aspect
of Section 2(b). See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (explaining
that the injury-in-fact component of standing exists where "threatened enforcement" of a law is
"sufficiently imminent"). But that does not mean that all Plaintiff States have standing to challenge
Section 2(b) insofar as it relates to enforcement of laws banning voting by noncitizens. There is
no question under federal law that noncitizens are not allowed to vote, see 18 U.S.C. § 611, and
States have no standing to challenge the Executive Branch's discretionary decision to prioritize
enforcement of such laws, see generally United States v. Texas, 599 U.S. 670, 678 (2023) ("[T]he
Executive Branch possesses authority to decide 'how to prioritize and how aggressively to pursue
legal actions against defendants who violate the law.'" (quoting TransUnion LLC, 594 U.S. at
429)). Nor does it mean that the potential use of State Citizenship Lists in enforcement actions
gives rise to actual or imminent injury under Section 2(a). There are no immediate deadlines that
require States to do anything in relation to the State Citizenship Lists; and the opportunity for
11
It is not clear what is meant by "Federal election." Arguably, it may be limited to general
elections. See generally Exec. Order § 2(b) (referencing "the date of the upcoming election");
2 U.S.C. § 7 (establishing the Tuesday after the first Monday in November in even numbered years
"as the day for the election"). Another reading is also possible, however; at least in the context of
campaign finance, "election" refers not only to general elections but also primaries for federal
offices. See 52 U.S.C. § 30101(1)(A). The government has not urged a narrowed definition in
response to the Plaintiff States' arguments regarding the potential scope and application of the EO
to primaries, so I will assume that Section 2(b) applies to primary elections.
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States to supplement those lists, see Exec. Order § 2(a), means that the prospect of any use of the
lists to wrongfully prosecute state or local officials for allowing eligible voters to exercise their
right to vote is purely speculative. See Clapper, 568 U.S. at 409.
The contrast between Sections 2(a) and 3 of the EO reinforces this conclusion, while also
leading to the conclusion that the Government and Intervenor States failed to establish likelihood
of success regarding Plaintiff States' standing as to Section 3. Section 3 requires the Postmaster
General to initiate rulemaking that would include provisions (1) requiring States to use specified
mail-in ballot envelopes, Exec. Order § 3(b)(i), and (2) precluding the United States Postal Service
from transmitting mail-in or absentee ballots that are not included in "State-specific Mail-In and
Absentee Participation List[s]" (which are separate and distinct from the State Citizenship Lists to
be compiled by the federal government under Section 2), id. § 3(b)(ii)-(v). In turn, the proposed
rules promulgated by the Postmaster General provide new standards for ballot envelope design,
allow States to submit State-specific Mail-In and Absentee Participation Lists, and would limit the
distribution of mail-in ballots to individuals included in such lists. 91 Fed. Reg. 32915, 32915-16.
Generally, possible future injury based on proposed rulemaking cannot establish standing. See
generally Trump v. New York, 592 U.S. 125, 129-131, 134 (2020) (holding that where President
issued a memorandum to the Secretary of Commerce that "announced a policy of excluding 'from
the apportionment base aliens who are not in a lawful immigration status'" for the 2020 census,
challenges to that memorandum were "premature" because "[a]ny prediction how the Executive
Branch might eventually implement th[at] general statement of policy [wa]s 'no more than
conjecture' at th[at] time" (quoting Los Angeles v. Lyons, 461 U.S. 95, 108 (1983))). But the
proposed changes set forth in the EO have more than speculative future effect. As explained by
my colleagues, Plaintiff States are already preparing for the impending November 2026 elections
and preceding primaries -- as they must. See generally Merrill v. Milligan, 142 S. Ct. 879, 880
(2022) (Kavanaugh, J., concurring). Because many Plaintiff States have already ordered mail-in
ballot envelopes that would have to be quickly replaced and would have to promptly provide the
federal government with State-specific Mail-In and Absentee Ballot Lists to avoid disruptions in
the mail-in balloting process for the November 2026 elections and any prior elections, the
uncontested record suggests that Plaintiff States must necessarily take initial steps to comply with
these proposed rules as framed by the EO even prior to the promulgation of the anticipated
regulations. Thus, although final regulations must normally exist before standing can arise, the
specificity of the EO's stated timelines and the inescapable legal requirements and impending
deadlines that States currently face in facilitating mail-in and absentee balloting for immediately
upcoming elections together establish sufficient concrete injury from the EO in this unusual case.
Unlike Section 2(a), therefore, the Government and Intervenor States have failed to show a
substantial likelihood of success as to their argument that Plaintiff States will not suffer actual or
imminent harm sufficient to establish standing to challenge Section 3.12 See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992).
12
Because the Government and Intervenor States mount no substantive defense of
Section 3, they have no other basis to demonstrate likelihood of success as to the injunction barring
implementation of that provision.
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The remaining stay factors -- irreparable harm, harm to interested parties, and the public
interest, Nken, 556 U.S. at 434 -- largely flow from the assessment of likelihood of success on the
merits. Where Section 2(a) of the EO does not command Plaintiff States to do anything, they have
suffered no certain harm at present, much less irreparable harm. See DSCC, 2026 WL 1487833,
at *13; see generally Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (requiring
plaintiffs to "demonstrate that irreparable injury is likely in the absence of an injunction"). The
Government, however, would be harmed absent a stay of the injunction of Section 2(a) and, in part,
Section 2(b) because it would be prevented from taking steps that may provide States with further
resources for purposes of the November 2026 election and from enforcing valid federal laws. See
League of Women Voters of U.S. v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016) (noting that there can
be "no do over" once the registration deadlines from an election have passed (quoting League of
Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014))); Dist. 4 Lodge of
the Int'l Ass'n of Machinists & Aerospace Workers Loc. Lodge 207 v. Raimondo, 18 F.4th 38, 47
(1st Cir. 2021) ("[A]ny time a [government] is enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers a form of irreparable injury." (quoting Maryland
v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers)) (alterations in original)). The
contrary is true as to Section 3, as well as Section 2(b) insofar as it affects States permitting certain
17-year-olds to vote in primaries; Plaintiff States would suffer irreparable harm, for instance, if
they were unable to timely comply with various mail-in ballot deadlines. See Merrill, 142 S. Ct.
at 880 (Kavanaugh, J., concurring). This harm outweighs the Government's countervailing
interests. The public interest factor largely reflects the same balancing of harms and does not
separately counsel a different result.
With respect, I concur in part and dissent in part.
By the Court:
Anastasia Dubrovsky, Clerk
cc: Hon. Indira Talwani, Robert Farrell, Clerk, United States District Court for the District of
Massachusetts, Ian D. Prior, Alexander Barrett Bowdre, Louis Joseph Capozzi III, Graham Miller,
John Michael Patton, Benjamin S. Gilberg, David M.S. Dewhirst, James A. Barta, James R.
Rodriguez, Kelsey L. Smith, Christian B. Corrigan, Cody S. Barnett, Garry M. Gaskins II, Joseph
David Spate, Grant Michael Flynn, Monroe David Bryant Jr., Donald Campbell Lockhart, Rayford
A. Farquhar, Abraham R. George, Laura Myron, David C. Kravitz, Michael Patrick Moore Jr.,
Jared B. Cohen, Vanessa Arslanian, Jennifer Utrecht, Heidi Parry Stern, Kiel Ireland, Ian Fein,
Thomas Patterson, Aaron Daniel Pennekamp, Anne P. Bellows, Kevin Lee Quade, Lisa Catherine
Ehrlich, Malcolm Andreas Brudigam, Michael Surren Cohen, Samuel Thomas Harbourt, Robert
William Setrakian, Jane Reilley, Nicholas W. Brown, Cristina Sepe, Syreeta Tyrell, Karen J.
Hartman-Tellez, Shannon Wells Stevenson, Peter Baumann, William M. Tong, Maura Bridget
Murphy, Vanessa L. Kassab, Ian R. Liston, Caroline S. Van Zile, Alex Hemmer, Katherine
Thompson, Virginia Anne Williamson, Neil Giovanatti, Erik Grill, Angela Behrens, Allen Barr,
Joshua Paul Bohn, Meghan Musso, Jonathan B. Mangel, James Grayson, Bailey Colfax, Barbara
D. Underwood, Rabia Muqaddam, Judith N. Vale, Daniel Paul Mosteller, Robert A. Koch, Daniel
A. Rayfield, James J. Arguin, Kyla Duffy, Ryan P. Kane, Tillman J. Breckenridge, Lynn Kristine
- 19 -
Case: 26-1774 Document: 00118481937 Page: 20 Date Filed: 07/27/2026 Entry ID: 6828856
20a
Lodahl, Michael J. Fischer, Inga S. Bernstein, Richard D. Bernstein, Jonathan Benjamin Miller,
Raphael Kalikstein, Carey Dunne, Mónica Pilar Folch, Charanya Krishnaswami, Jason J.
Muehlhoff, J. Benjamin Aguiñaga, Stephen Michael Pezzi, Esam Al-Shareffi, Jak Kundl, Robert
Bonta, Seth Goldstein, L. Nicole Allan, Aaron D. Ford, Karl D. Smith, Tera M. Heintz, Kristin K.
Mayes, Joshua M. Whitaker, Kara M. Karlson, Philip J. Weiser, Kathleen Jennings, Brian L.
Schwalb, Eliza Simon, Kwame Raoul, Holly F.B. Berlin, Jane Elinor Notz, Vikas Didwania, Aaron
M. Frey, Anthony G. Brown, Dana Nessel, Keith Ellison, Lindsey E. Middlecamp, Jennifer
Davenport, Raul Torrez, Letitia James, Colleen K. Faherty, Jeffrey N. Jackson, Laura Howard,
Thomas H. Castelli, Charity R. Clark, Jay Jones, Joshua L. Kaul, Charlotte Gibson, Jacob Boyer,
Alex Goldstein, Matthew James O'Brien, Stephen S. Cha-Kim, Andrew James Rising, Emily
Kirby, Allegra Chapman, Carlos Guevara, Inbar Pe'er, Julia Spiegel, Kevin Trowel, Zack Goldberg,
Martha Reiser
- 20 -
Case 1:26-cv-11581-IT Document 208 Filed 07/07/26 Page 1 of 7
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STATE OF CALIFORNIA, et al., *
*
Plaintiffs, *
*
v. *
*
DONALD J. TRUMP, in his official capacity *
as President of the United States, et al., * Civil Action No. 1:26-cv-11581-IT
*
Defendants, *
*
and *
*
STATE OF MISSOURI, et al., *
*
Intervenor-Defendants. *
MEMORANDUM & ORDER
July 7, 2026
TALWANI, D.J.
Before the court are motions to stay pending appeal filed by Defendants 1 and Intervenor-
Defendants. 2 On June 18, 2026, the court granted in part and denied in part Defendants’ motion
1
Defendants are Donald J. Trump, in his official capacity as President of the United States;
United States Department of Justice; Todd Blanche, in his official capacity as Acting U.S.
Attorney General; United States Department of Homeland Security; Markwayne Mullin, in his
official capacity as Secretary for the Department of Homeland Security; United States Social
Security Administration; Frank Bisignano, in his official capacity as Commissioner of the U.S.
Social Security Administration; United States Postal Service; David Steiner, in his official
capacity as Postmaster General and Chief Executive Officer of the Postal Service; Doug Tolino,
in his official capacity as Deputy Postmaster General, Chief Operating Officer and Chief Human
Resources Officer of the Postal Service and Member of the Postal Service Board of Governors;
Amber McReynolds, in her official capacity as Chair of the Postal Service Board of Governors;
Derek T. Kan, in his official capacity as Vice Chairman of the Postal Service Board of
Governors; Ronald Stroman, in his official capacity as a Member of the Postal Service Board of
Governors; and Daniel Tangherlini, in his official capacity as a Member of the Postal Service
Board of Governors.
2
Intervenor-Defendants are Alabama, Florida, Indiana, Kansas, Louisiana, Missouri, Montana,
Nebraska, Oklahoma, South Carolina, South Dakota, and Texas.
1
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to dismiss, dismissing without prejudice on prudential ripeness grounds the Amended Complaint
filed by Plaintiff States, 3 as to claims regarding Executive Order 14399, Ensuring Citizenship
Verification and Integrity in Federal Elections (the “EO”), 91 Fed. Reg. 17125 (Mar. 31, 2026),
and its implementation with regard to elections occurring after November 3, 2026, denying
Defendants’ motion to dismiss on prudential ripeness grounds as to the November 3, 2026 and
any earlier elections, and reserving on remaining arguments. Mem. & Order [Doc. No. 190]. On
June 25, 2026, the court denied the balance of the motion and granted Plaintiffs summary
judgment in part, holding that Sections 2 and 3 of the EO are unconstitutional and ultra vires, and
enjoining any implementation of those sections by Defendant agencies as to Plaintiff States with
respect to elections occurring on or before November 3, 2026. Mem. & Order [Doc. No. 191].
Defendants and Intervenor-Defendants appealed, see California v. Trump, No. 26-01774 (1st Cir.
July 2, 2026); California v. Trump, No. 26-01779 (July 6, 2026), and have moved to stay the
court’s injunction, pending appeal before the United States Court of Appeals for the First Circuit.
See Defs.’ Mot. to Stay [Doc. No. 193]; Intervenors’ Mot. to Stay [Doc. No. 202]. The court
thereafter entered Final Judgment [Doc. No. 207] and treats the motions to stay as directed to
that Final Judgment as well.
I. Standard of Review
A district court may stay an injunction while an appeal is pending. Fed. R. Civ. P. 62(d).
“A stay pending appeal is an ‘intrusion into the ordinary processes of administration and judicial
review’ and relief is not granted as ‘a matter of right.’” Rhode Island v. Trump, 155 F.4th 35, 41
3
Plaintiff States are Arizona, California, Colorado, Connecticut, Delaware, District of Columbia,
Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New
Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington,
Wisconsin, and Josh Shapiro in his official capacity as Governor of Pennsylvania.
2
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(1st Cir. 2025) (quoting New York v. Trump, 133 F.4th 51, 65 (1st Cir. 2025)). The movants
“bear the burden of demonstrating that they are entitled to the ‘extraordinary’ relief that they
seek.” Id. (quoting Somerville Pub. Schs. v. McMahon, 139 F.4th 63, 68 (1st Cir. 2025)).
The Supreme Court has explained that movants must (1) make a strong showing that they
are likely to succeed on the merits on appeal; (2) show that they will be irreparably injured
absent a stay; (3) show that a stay will not substantially injure the other parties interested in the
proceeding; and (4) show that the stay would be in the public interest. Nken v. Holder, 556 U.S.
418, 426 (2009). Likelihood of success and irreparable injury are “the most critical” factors. Id.
at 434. “It is not enough that the [movant’s] chance of success on the merits be better than
negligible.” Id. (internal quotations and citation omitted). Similarly, “simply showing some
possibility of irreparable injury fails to satisfy the second factor.” Id. at 434–35 (internal
quotations and citation omitted). Courts assess the harm to other interested parties and weigh the
public interest “[o]nce an applicant satisfies the first two factors.” Id. at 435.
II. Discussion
A. Merits
For the reasons discussed in its June 18, 2026 Memorandum and Order [Doc. No. 190]
and June 25, 2026 Memorandum and Order [Doc. No. 191], the court finds that as to the
November 3, 2026 and earlier elections, Plaintiff States’ claims are ripe, Plaintiffs have Article
III standing, and Sections 2 and 3 of the EO are unconstitutional and ultra vires. Accordingly,
Defendants and Intervenor-Defendants are unlikely to succeed on the merits of their appeal.
Defendants and Intervenor-Defendants assert that the court’s June 18, 2026 Memorandum
and Order [Doc. No. 190], dismissing Plaintiff States’ claims concerning elections after
November 3, 2026, supports their argument that Plaintiff States lack Article III standing and that
3
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their claims are not ripe for adjudication. Defs.’ Mem. ISO Mot. to Stay (“Defs.’ Mem.”) 7–15
[Doc. No. 195]; Intervenors’ Mem. ISO Mot. to Stay (“Intervenors’ Mem.”) 4–10 [Doc. No.
203].
While “originat[ing] from the same Article III limitation,” prudential ripeness is both
related to yet distinct from standing. Jensen v. R.I. Cannabis Control Comm’n, 160 F.4th 18, 24
(1st Cir. 2025) (citation omitted); see Mem. & Order 9–10 [Doc. No. 190] and cases cited
therein. In dismissing Plaintiffs’ claims on ripeness grounds only as to elections after November
3, 2026, the court acknowledged the reality with which neither Defendants nor Intervenor-
Defendants are willing to engage: while claims as to distant elections may not yet be ripe, the
claims as to the upcoming elections are ripe because States are actively planning to and currently
administering such elections. The “possibility of future judicial review” is neither practicable nor
feasible where the EO directs that specific agency action be taken in a constricted timeframe,
thereby interfering with Plaintiffs’ present efforts to administer elections. Defs.’ Mem. 10 [Doc.
No. 195]. Therefore, Plaintiffs’ claims as to elections on and before November 3, 2026, are
logically fit for judicial review and denying review on prudential ripeness grounds until some
point in the future, e.g., even closer to the midterms for which they are currently preparing,
would impose needless hardship to Plaintiffs. See Abbott Labs. v. Gardner, 387 U.S. 136, 148–49
(1967).
B. Irreparable Injury
As a threshold matter, the court’s injunction is clearly limited to Plaintiff States alone.
Final J. [Doc. No. 207]. Accordingly, nothing in the court’s order prevents Defendant agencies
from endeavoring to implement the EO with respect to non-Plaintiff States.
4
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Defendants argue that the court’s injunction causes irreparable harm because Defendant
agencies are unable to implement the directives required by the EO on the EO’s prescribed
timeline. Defs.’ Mem. 18–19 [Doc. No. 195]. A USCIS official speculates that “in the event the
Court’s order is stayed or vacated at some future date, USCIS will be required to expend
additional resources and perform work under potentially tight timelines to fully implement the
E.O. at that time.” Mayhew Supp. Decl. ¶ 10. [Doc. No. 194-1]. But the injunction does not
prevent any steps to implement the EO, on the exact timeline prescribed by the President, to
prepare for elections that will occur after November 3, 2026.
Agency officials’ concern with their ability to timely implement the EO for the November
3, 2026 election does nothing more than highlight the current ripeness of Plaintiffs’ claims. Just
as Plaintiff States are diligently working to plan for and administer elections, agency officials are
working hard to implement the EO’s directives pursuant to the EO’s short deadlines. See Exec.
Order 14399 § 4(c) (USCIS must have already established infrastructure relevant to the
Confirmed Citizen Lists). Defendants have and will continue to take action that renders
Plaintiffs’ claims ripe for future elections. That Defendants may have to work harder later, in the
event that this court’s order is reversed, does not rise to the level of irreparable injury
contemplated by the Supreme Court in Nken. 556 U.S. at 435 (even wrongful removal of a
noncitizen is not “categorically irreparable”).
A USPS official similarly explains that the court’s order prevents USPS from
implementing the EO for non-Plaintiff States because USPS would be unable to promulgate
regulations as to only certain states prior to the November 3, 2026 elections. Monteith Decl. ¶ 4
[Doc. No. 194-2] (describing feasibility limitations with respect to a “two-tiered system”). This
argument is not persuasive. First, USPS has now been enjoined from implementing the
5
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provisions in the Notice of Proposed Rulemaking as directed by the EO in any state. See NAACP
v. USPS, No. 1:20-cv-02295-EGS (D.D.C. July 1, 2026), Dkt. No. 181. Second, USPS’
acknowledgment that the anticipated final rule will apply to ballot mail received in association
with the November 3, 2026 elections only serves to demonstrate that Plaintiffs’ claims as to those
and earlier elections are ripe for judicial review. Monteith Decl. ¶ 8 [Doc. No. 194-2] (“For states
to be ready to [engage with USPS in creating the absentee and mail-in lists], [USPS] need[s]
enough time prior the November 2026 to train [their] employees . . . and to coordinate with
mailers.”). Third, the court finds that Defendants have made no showing that “delay” of the EO’s
deadlines for USPS’ implementation constitutes irreparable injury. Nken, 556 U.S. at 435.
C. Other and Public Interests
Plaintiff States oppose a stay, arguing it would require Plaintiffs to immediately
“develop[] procedures for reviewing and correcting the Confirmed Citizenship List, redesign[]
ballot envelopes to comply with the requirements, and rush-order[] the new envelopes,” all at
significant effort and cost while Plaintiffs are actively administering primaries and special
elections, as well as preparing to administer the November 3, 2026 midterms. Pls.’ Mem. in
Opp’n to Defs.’ Mot. to Stay (“Pls.’ Opp’n”) 7 [Doc. No. 200].
Intervenor-Defendants argue that they will be injured by Defendant agencies’ inability to
fully implement the EO prior to the November 3, 2026 elections and that the “security of their
elections” is “irreparably harmed by the [court’s] injunction.” Intervenors’ Mem. 10–11 [Doc.
No. 203]. However, the EO’s directives are not aligned with its stated purpose of reducing voter
fraud and enhancing election integrity. See Exec. Order 14399 § 1. Instead, the EO directs DHS
and USCIS to create incomplete lists of confirmed citizens for each state. Id. § 2. A state could
do nothing more with the list than rely upon it as additional proof of citizenship, but not as proof
6
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of noncitizenship. June 2, 2026 H’rg Tr. 24:6–17 [Doc. No. 181]. Indeed, in conceding that the
lists are necessarily incomplete, Defendants have acknowledged that a voter’s absence from the
lists required by the EO does not signify that voter’s ineligibility.
Having weighed the interests of Plaintiff and Intervenor-Defendants and the remaining
public, the court finds these factors weigh against granting a stay. See New Jersey v. Trump, 131
F.4th 27, 34 (1st Cir. 2025).
III. Conclusion
Having failed to meet their burden to show that circumstances justify a stay pending
appeal, Defendants’ and Intervenor-Defendants’ Motions [Doc. Nos. 193, 202] for a stay pending
appeal are therefore DENIED. The court permits a 7-day administrative stay to permit time for
Defendants and Intervenor-Defendants to renew their stay request before the First Circuit.
IT IS SO ORDERED.
July 7, 2026 /s/ Indira Talwani
United States District Judge
7
Case 1:26-cv-11581-IT Document 191 Filed 06/25/26 Page 1 of 37
28a
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
*
STATE OF CALIFORNIA, et al., *
*
Plaintiffs, *
*
v. *
*
DONALD J. TRUMP, in his official capacity *
as President of the United States, et al., * Civil Action No. 1:26-cv-11581-IT
*
Defendants, *
*
and *
*
STATE OF MISSOURI, et al., *
*
Intervenor-Defendants. *
MEMORANDUM & ORDER
June 25, 2026
TALWANI, D.J.
Twenty-three States 1 and the District of Columbia (collectively, “Plaintiff States”)
challenge Sections 2, 3, and 5 of Executive Order 14399, Ensuring Citizenship Verification and
Integrity in Federal Elections (the “EO”), 91 Fed. Reg. 17125 (Mar. 31, 2026), as ultra vires and
unconstitutional, arguing that the provisions violate the separation of powers, the Elections and
Electors Clauses, and the Tenth Amendment’s anti-commandeering doctrine. Am. Compl.
¶¶ 150–189 [Doc. No. 65]. Plaintiff States assert these claims against the President, and the
various agencies and agency heads listed in the EO. Id. 2
1
The Plaintiff States are Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York,
North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and Josh
Shapiro in his official capacity as Governor of Pennsylvania.
2
Count I, challenging Section 2 of the EO, is brought against President Donald J. Trump; the
U.S. Department of Justice and the Acting Attorney General (collectively, “DOJ Defendants”);
Case 1:26-cv-11581-IT Document 191 Filed 06/25/26 Page 2 of 37
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Defendants, joined by Intervenor States, 3 seek dismissal of Plaintiff States’ Amended
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs.’ Mot. to
Dismiss [Doc. No. 154]; Intervenors’ Opp’n to Pls.’ Mot. for Summ. J. (“Intervenors’ Opp’n”) 2–
7, 13–17 [Doc. No. 153]. Plaintiff States have moved for summary judgment and request that the
court declare Sections 2, 3, and 5 of the EO as unconstitutionally void and permanently enjoin
Defendant agencies and agency heads from implementing or enforcing those provisions. Pls.’
Mot. for Summ. J. [Doc. No. 97].
I. Background
A. The Executive Order
The EO asserts “an unavoidable duty under Article II of the Constitution of the United
States to enforce Federal law, which includes preventing violations of Federal criminal law and
maintaining public confidence in election outcomes.” Exec. Order 14399 § 1. The EO notes that
several executive agencies maintain records that “can assist in verifying identity and Federal
election voter eligibility” and finds that “additional measures are necessary[]” to “enhance
election integrity via the United States Mail[.]” Id.
The EO directs agency heads to take certain actions. Pls.’ Statement of Undisputed
Material Facts (“Pls.’ SUMF”) ¶ 4 [Doc. No. 105]; Defs.’ Statement of Undisputed Material
the U.S. Department of Commerce and its Secretary (collectively, “Commerce Defendants”); the
U.S. Department of Homeland Security and its Secretary; U.S. Citizenship and Immigration
Services and its Director; and the Social Security Administration and its Commissioner. Am.
Compl. ¶¶ 150–66 [Doc. No. 65]. Count II, challenging Section 3 of the EO, is brought against
the President; the Acting Attorney General; and the U.S. Postal Service, Postmaster General,
Deputy Postmaster General, U.S. Postal Service Board of Governors Chairwoman, Board of
Governors Vice Chairman, and Board of Governor Members. Id. ¶¶ 167–78. Count III,
challenging Section 5 of the EO, is brought against the President and DOJ Defendants. Id.
¶¶ 179–189.
3
The Intervenor States are Alabama, Florida, Indiana, Kansas, Louisiana, Missouri, Montana,
Nebraska, Oklahoma, South Carolina, South Dakota, and Texas.
2
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Facts (“Defs.’ SUMF”) ¶ 4 [Doc. No. 155]. Section 2 of the EO directs the Director of the U.S.
States Citizenship and Immigration Services (“USCIS”), a component within the Department of
Homeland Security (“DHS”), in coordination with the Commissioner of the Social Security
Administration (“SSA”), to compile lists of citizens eligible to vote in a specific state (the
“Confirmed Citizen Lists” 4) “[t]o the extent feasible and consistent with applicable law[.]” Exec.
Order 14399 § 2(a). The EO defines the Confirmed Citizen Lists as limited to “individuals
confirmed to be United States citizens who will be above the age of 18 at the time of an
upcoming Federal election and who maintain a residence in the subject State[.]” Id.
The EO requires DHS to “establish the infrastructure necessary to compile, maintain, and
transmit” the Confirmed Citizen Lists by June 29, 2026. Id. § 4(c) (emphasis added). Also by
June 29, 2026, DHS must designate a point of contact regarding List-related inquiries from
individuals and State election officials. Id. The EO requires that DHS update and transmit the
Confirmed Citizen List for each State to State election officials at least 60 days before each
regularly scheduled Federal election, or upon request regarding a special Federal election. Id.
§ 2(a). Accordingly, for the November 3, 2026 general election, the EO requires DHS to provide
the Confirmed Citizen Lists to State election officials by September 4, 2026.
Section 3 of the EO directs the Postmaster General of the U.S. Postal Service (“USPS”)
to initiate a proposed rulemaking to ensure the integrity of mail voting and requires that a final
rule be published by July 29, 2026. Id. § 3(a); USPS Notice of Proposed Rulemaking, Ballot
Mail for Federal Elections, 91 Fed. Reg. 32915 (June 2, 2026). The EO requires the proposed
rule to (1) include requirements regarding election mail design; and (2) specify that USPS, after
receiving State-furnished lists of voters approved to vote by mail, shall provide each State with a
4
The EO refers to these federally created lists as “State Citizenship Lists.” Exec. Order 14399
§ 2(a).
3
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list of individuals who are “enrolled with the USPS” pursuant to a process specified in the rule,
and shall not transmit the ballot of any voter unless the individual has been so “enrolled.” Exec.
Order 14399 § 3(b). The EO requires the proposed rule to specify that States may choose to
notify USPS of their intent to use mail ballots no fewer than 90 days prior to a Federal election,
and States may submit to USPS, no fewer than 60 days before the election, a list of voters to
whom the State intends to provide mail ballots. Id. § 3(b)(ii). Accordingly, for the November 3,
2026 general election, States may notify USPS by August 5, 2026, of their intent to use mail
ballots, and by September 4, 2026, of their mail-ballot voter lists. Id.
In Sections 2 and 5, the EO describes several criminal offenses, both directly and
indirectly relating to voter fraud, and requires the Attorney General to prioritize the investigation
and prosecution of State and local officials who issue ballots to individuals not eligible to vote.
Id. §§ 2(b), 5. The EO also provides that “[s]tates and localities should preserve, for a 5-year
period, all records and materials—excluding ballots cast—evidencing voter participation in any
Federal election (e.g., ballot envelopes, regardless of carrier).” Id. § 5 (emphases added).
B. Federal Election Law
1. Constitutional Framework
a. The State’s Role in Federal Elections
The U.S. Constitution empowers the States to determine voter eligibility in federal
elections.
Under the Voter Qualifications Clause, Members of the U.S. House of Representatives
must be elected by voters who “have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature.” U.S. CONST. art. I, § 2, cl. 1. The Seventeenth
Amendment likewise prescribes that voters for U.S. Senators “shall have the qualifications
requisite for electors of the most numerous branch of the State legislatures.” U.S. CONST. amend.
4
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XVII. Therefore, because the States determine who is eligible to vote for their state legislators,
the Constitution indirectly grants the States authority to determine who is eligible to vote for
federal legislators.
Article I of the Constitution also empowers the States to prescribe the “Times, Places,
and Manner of holding” congressional elections. U.S. CONST. art. I, § 4, cl. 1. “[T]hese
comprehensive words embrace authority to provide a complete code for congressional elections,
not only as to times and places, but in relation to notices, registration, supervision of voting,
protection of voters, prevention of fraud and corrupt practices, counting of votes” among other
issues. Smiley v. Holm, 285 U.S. 355, 366 (1932).
The President is elected by vote of the Electoral College. See U.S. CONST. amend. XII.
The Electors Clause empowers each State to appoint electors to the Electoral College “in such
Manner as the Legislature thereof may direct.” U.S. CONST. art. II, § 1, cl. 2. The States require
their electors be appointed by popular vote of qualified voters. See Chiafalo v. Washington, 591
U.S. 578, 584 (2020). Accordingly, the States alone determine voter-eligibility requirements,
subject only to the outer limits of the Constitution. See, e.g., U.S. CONST. amend. XIX (“The
right of citizens of the United States to vote shall not be denied or abridged . . . on account of
sex.”); U.S. CONST. amend. XXVI (“The right of citizens of the United States, who are eighteen
years of age or older, to vote, shall not be denied or abridged . . . on account of age.”). For
presidential elections, the Electors Clause gives States the primary authority to decide how
electors are chosen. U.S. CONST. art. II, § 1, cl. 2.
b. Congress’s Role in Federal Elections
The Elections Clause empowers Congress to “make or alter” State election laws “at any
time[.]” U.S. CONST. art. I, § 4, cl. 1. “In practice, the Clause functions as ‘a default provision; it
invests the States with responsibility for the mechanics of congressional elections, but only so far
5
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as Congress declines to pre-empt state legislative choices.’” Arizona v. Inter Tribal Council of
Arizona, Inc., 570 U.S. 1, 9 (2013) (quoting Foster v. Love, 522 U.S. 67, 69 (1997)).
While the Electors Clause does not explicitly reserve supervisory authority to Congress
for presidential electors, the Supreme Court has extended “the broad power given to Congress
over congressional elections . . . to presidential elections.” Voting Rts. Coal. v. Wilson, 60 F.3d
1411, 1414 (9th Cir. 1995) (citing Burroughs v. United States, 290 U.S. 534, 545 (1934)); see
Arizona, 570 U.S. at 14–15 (“Because the power the Elections Clause confers is none other than
the power to pre-empt, the reasonable assumption is that the statutory text accurately
communicates the scope of Congress’s preemptive intent . . . . Unlike the States’ historic police
powers, the States’ role in regulating congressional elections . . . has always existed subject to the
express qualification that it terminates according to federal law.”).
Accordingly, the Elections Clause “grants Congress ‘the power to override state
regulations’ by establishing uniform rules for federal elections, binding on the States.” Foster,
522 U.S. at 69 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833 (1995)).
c. President’s Limited Role in Federal Elections
The Constitution does not grant the President any specific powers over elections. 5
Broadly, the Constitution vests the President with “executive Power” and commands him to
“take Care that the Laws be faithfully executed.” U.S. CONST. art. II, §§ 1, 3. The President
“plays no direct role in the process” of appointing electors, “nor does he have authority to control
the state officials who do.” Trump v. United States, 603 U.S. 593, 627 (2024). As the Supreme
5
Regarding the allocation of election-related authority across the States and Congress, the
Framers explained: “[T]here were only three ways in which this power could have been
reasonably modified and disposed: that it must either have been lodged wholly in the national
legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the
former.” THE FEDERALIST NO. 59 (Alexander Hamilton). Notably, the Framers excluded the
Executive Branch from any allocation formulation.
6
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Court has observed, “the President’s power to see that the laws are faithfully executed refutes the
idea that he is to be a lawmaker.” Medellín v. Texas, 552 U.S. 491, 526–27 (2008) (quoting
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)).
2. Statutory Landscape
Pursuant to its Elections Clause power, see U.S. CONST. art. I, § 4, cl. 1, Congress has
enacted several laws regulating voting and elections. For example, the Voting Rights Act, Pub. L.
No. 89-110, 79 Stat. 437 (1965) (codified at 52 U.S.C. §§ 10101), prohibits discriminatory
voting or election practices. The Uniformed and Overseas Citizens Absentee Voting Act
(“UOCAVA”), Pub. L. No. 99-410, 100 Stat. 924 (1986) (codified at 52 U.S.C. §§ 20301–11)
requires States (as well as U.S. territories and the District of Columbia) to permit otherwise-
qualified voters residing or stationed overseas to vote in the last place they were domiciled prior
to leaving the United States. 52 U.S.C. §§ 20302, 20310. UOCAVA guarantees military and
overseas voters the right “to use absentee registration procedures and to vote by absentee ballot
in general, special, primary, and runoff elections for Federal office[.]” 52 U.S.C. § 20302(a)(1);
see 52 U.S.C. § 20302(a)(8)(A) (requiring States to transmit absentee ballots to UOCAVA voters
at least 45 days before an election for federal office to provide voters sufficient time to receive,
mark, and return absentee ballots).
The National Voter Registration Act of 1993 (the “NVRA”) sets forth certain voter
registration requirements with respect to elections for federal office. 52 U.S.C. §§ 20501–
20511. 6 Section 5 of the NVRA requires that States offer voter registration opportunities at State
6
Legislation has been introduced in earlier sessions and in the current session of Congress to
amend the NVRA to require individuals to provide documentary proof of citizenship when
registering to vote, see Safeguard American Voter Eligibility (SAVE) Act, H.R. 8281, 118th
Cong. (2024); Safeguard American Voter Eligibility (SAVE) Act, H.R. 22, 119th Cong. (2025),
but has not been enacted into law.
7
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motor vehicle agencies. Section 6 of the NVRA requires that States offer voter registration
opportunities by mail-in application and limits registration to using a prescribed federal form.
The Help America Vote Act of 2002 (“HAVA”), Pub. L. No. 107-252, 116 Stat. 1666, was
passed after the 2000 Presidential election and “aimed ‘to alleviate a significant problem voters
experience’—eligible voters being turned away at the polls because their names were missing
from voter registration lists.” United States v. Benson, ___ F.4th ___, 2026 WL 1815425, *3 (6th
Cir. June 24, 2026) (quoting Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 569
(6th Cir. 2004) (per curiam)). HAVA requires states to maintain an electronic statewide voter
registration list. 7 52 U.S.C. § 21083.
C. The Plaintiff States and the Administration of Federal Elections
Plaintiff States and their localities administer elections for federal office. Pls.’ SUMF ¶ 6
[Doc. No. 105]; Defs.’ SUMF ¶ 6 [Doc. No. 155]. Plaintiff States and their localities are
responsible for, inter alia, carrying out voter registration, maintaining and updating voter rolls,
issuing ballots to registered voters, tabulating votes, and certifying results in all elections for
federal office. Pls.’ SUMF ¶ 7 [Doc. No. 105]; Defs.’ SUMF ¶ 7 [Doc. No. 155].
7
In 2025, officials in DOJ’s Civil Rights Division began sending letters to the Secretaries of
various States, requesting access to State’s electronic voter registration lists, and the federal
government has sued the Secretaries of States who have denied access. The United States’
lawsuits have been consistently dismissed and the government’s requests held by courts to be
facially deficient. See, e.g., Benson, ___ F.4th ___, 2026 WL 1815425; United States v.
DeMarinis, 2026 WL 1780586, *5 (D. Md. June 18, 2026); United States v. Wis. Elections
Comm’n, __ F. Supp. 3d __ , 2026 WL 1430354 (W.D. Wis. May 21, 2026); United States v.
Bellows, ___ F. Supp. 3d ___, 2026 WL 1430481 (D. Me. May 21, 2026); United States v.
Fontes, ___ F. Supp. 3d ___, 2026 WL 1177244 (D. Ariz. Apr. 28, 2026); United States v. Amore,
___ F. Supp. 3d ___, 2026 WL 1040637 (D.R.I. Apr. 17, 2026); United States v. Galvin, ___ F.
Supp. 3d,___, 2026 WL 972129 (D. Mass. Apr. 9, 2026); United States v. Oregon, ___ F. Supp.
3d ___, 2026 WL 318402 (D. Or. Feb. 5, 2026); United States v. Weber, 816 F. Supp. 3d 1168
(C.D. Cal. 2026).
8
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Plaintiff States are currently in the process of preparing to administer the November 2026
general election, and many are also actively administering or preparing to administer federal
primaries. Pls.’ SUMF ¶ 8 [Doc. No. 105]; Defs.’ SUMF ¶ 8 [Doc. No. 155]. As part of this
process, Plaintiff States and their localities conduct programs to remove from their lists of
eligible voters those who have died and those who are no longer eligible to vote for various
reasons, including a change in residence, or other State law grounds for ineligibility. Pls.’ SUMF
¶ 9 [Doc. No. 105]; Defs.’ SUMF ¶ 9 [Doc. No. 155].
In accordance with federal law, Plaintiff States do not systematically remove voters from
voter rolls during the 90 days prior to a federal election, except as permitted by the NVRA. See
52 U.S.C. § 20507(c)(2)(A); Pls.’ SUMF ¶ 10 [Doc. No. 105]; Defs.’ SUMF ¶ 10 [Doc. No.
155]. 8 For the November 2026 general election, the NVRA 90-day quiet period begins on August
5, 2026. Pls.’ SUMF ¶ 10 [Doc. No. 105]; Defs.’ SUMF ¶ 10 [Doc. No. 155].
Plaintiff States and their localities require verification of eligibility to register voters,
including by attestation, reporting identifying information, or other means, for federal elections.
Pls.’ SUMF ¶ 11 [Doc. No. 105] (citing the statutory requirements for each Plaintiff state). 9
8
Plaintiff States’ assertion is supported by declarations from state officials. See Lean (CA) Decl.
¶ 14 [Doc. No. 100-1]; Tassinari (MA) Decl. ¶ 29 [Doc. No. 100-2]; Wlaschin (NV) Decl. ¶ 17
[Doc. No. 100-3]; Holmes (WA) Decl. ¶ 27 [Doc. No. 100-4]; Varvel (AZ) Decl. ¶ 13 [Doc. No.
100-5]; Rudy (CO) Decl. ¶ 17 [Doc. No. 100-6]; Rosenberg (CT) Decl. ¶ 16 [Doc. No. 100-7];
Albence (DE) Decl. ¶ 19 [Doc. No. 100-8]; Miller (DC) Decl. ¶ 10 [Doc. No. 100-9]; Berry
(MD) Decl. ¶ 39 [Doc. No. 100-11]; Flynn (ME) Decl. ¶ 14 [Doc. No. 100-10]; Brater (MI)
Decl. ¶ 16 [Doc. No. 100-12]; Barber (NJ) Decl. ¶ 18 [Doc. No. 100-15]; Vigil (NM) Decl. ¶ 18,
[Doc. No. 100-16]; Stavisky (NY) Decl. ¶ 16 [Doc. No. 100-17]; Brunton (NC) Decl. ¶ 9 [Doc.
No. 100-18]; Dawson (OR) Decl. ¶ 15 [Doc. No. 100-19]; Marks (PA) Decl. ¶ 14 [Doc. No. 100-
20]; Rock (RI) Decl. ¶ 19 [Doc. No. 100-21]; Koski (VA) Decl. ¶ 18 [Doc. No. 100-23]; Hanzas
(VT) Decl. ¶ 14 [Doc. No. 100-22]; Michalowski (Cook County, IL) Decl. ¶ 11 [Doc. No. 100-
24]; Wise (King County, WA) Decl. ¶ 27 [Doc. No. 100-25]. Defendants’ response that they
“lack knowledge” as to Plaintiffs’ compliance, see Defs.’ SUMF ¶ 10 [Doc. No. 155], is not
sufficient on summary judgment to rebut Plaintiffs’ showing.
9
Defendants claim that Plaintiffs’ assertion that “Plaintiff States and their localities require
verification of eligibility (by attestation, reporting identifying information, or other means) to
9
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Plaintiff States also allow individuals to register to vote up to at least 30 days before a federal
election, and in some States, individuals may register closer to or on Election Day. Pls.’ SUMF
¶ 12 [Doc. No. 105] (citing Lean (CA) Decl. ¶ 12 [Doc. No. 100-1] (registration up to 15 days
before election; conditional registration “up to and on Election Day,” citing Cal. Elec. Code
§ 2102(a)); see also Cal. Elec. Code § 2119.5; Cal. Code Regs. 2 § 20020, et seq.); Tassinari
(MA) Decl. ¶ 28, [Doc. No. 100-2] (10 days before Election Day, citing Mass. Gen. Laws ch. 51,
§ 26); Wlaschin (NV) Decl. ¶ 14 [Doc. No. 100-3] (Election Day registration, citing Nev. Rev.
Stat. § 293.5847); Holmes (WA) Decl. ¶ 15 [Doc. No. 100-4] (Election Day registration, citing
Wash. Rev. Code § 29A.08.140); Varvel (AZ) Decl. ¶ 11 [Doc. No. 100-5] (29 days before
Election Day, citing Ariz. Rev. Stat. §§ 16-101(A)(3), 16-134(C)); Rudy (CO) Decl. ¶ 15 [Doc.
No. 100-6] (8 days before election to receive a mail ballot, or up to and including Election day in
person, citing Colo. Rev. Stat. § 1-2-508); Rosenberg (CT) Decl. ¶ 14 [Doc. No. 100-7] (voters
can register by mail up to 18 days before Election Day, in person during early voting, and on
Election Day, if they satisfy applicable requirements, citing Conn. Gen. Stat. § 9-23g); Albence
(DE) Decl. ¶ 17 [Doc. No. 100-8] (registration up to the third Monday before Election Day,
citing Del. Code. Tit. 15 § 1902(c)); Miller (DC) Decl. ¶ 11 [Doc. No. 100-9] (Election Day
registration, citing D.C. Code § 1-1001.07(g)); Berry (MD) Decl. ¶ 37 [Doc. No. 100-11]
(registration up to 21 days before Election Day, at early voting centers during early voting
period, and on Election Day itself, citing Md. Elec. Law § 3-302); Flynn (ME) Decl. ¶ 12 [Doc.
No. 100-10] (Election Day Registration, citing Me. Stat. tit. 21, § 121-A); Brater (MI) Decl. ¶ 14
register voters for federal elections” does not require Defendants’ response on the grounds that
“[the assertion] is a legal conclusion[.]” Defs.’ SUMF ¶ 10 [Doc. No. 155]. The court finds
Defendants’ statement to be nonresponsive and finds Plaintiff States’ showing that they and their
localities require eligibility verification to register voters for federal elections undisputed for
purposes of the pending motions.
10
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38a
[Doc. No. 100-12] (registration up to and including Election Day if certain requirements are met,
citing Mich. Comp. Laws § 168.497); Linnell (MN) Decl. ¶ 13 [Doc. No. 100-14] (registration
up to 20 days before an election, citing Minn. Stat. § 201.061); Barber (NJ) Decl. ¶ 16 [Doc. No.
100-15] (registration up to 21 days before an election, citing N.J. Rev. Stat. § 19:31-6); Vigil
(NM) Decl. ¶ 16 [Doc. No. 100-16] (New Mexico allows qualified individuals to register in
person on Election Day, citing N.M. Stat. § 1-4-5.7); Stavisky (NY) Decl. ¶ 14 [Doc. No. 100-
17] (qualified individuals permitted to register up to ten days before election day, citing N.Y.
Elec. Law § 5-210(3)); Brunton (NC) Decl. ¶ 7 [Doc. No. 100-18] (25 days before election and
during early voting, citing N.C. Gen. Stat. §§ 163-82.6(d), 163-82.6B); Dawson (OR) Decl. ¶ 11
[Doc. No. 100-19] (21 days before election, citing Or. Rev. Stat. § 247.025); Marks (PA) Decl.
¶ 12 [Doc. No. 100-20] (15 days before election, citing Pa. Cons. Stat. § 3071); Rock (RI) Decl.
¶¶ 15–17 [Doc. No. 100-21] (30 days before Election Day; registration on Election Day to vote
for president and vice–president, citing R.I. Gen. Laws § 17-9.1-1); Koski (VA) Decl. ¶ 17 [Doc.
No. 100-23] (electronic and mail applications to register up to 11 days before Election day, citing
VA. Code 24.2–416; 24.2–416.4); Hanzas (VT) Decl. ¶ 12 [Doc. No. 100-22] (registration up to
and including election day, citing Vt. Stat. tit. 17, § 2144a); Michalowski (Cook County, IL)
Decl. ¶ 9 [Doc. No. 100-24] (16 days before election and in person during early voting and on
Election Day, citing 10 Ill. Comp. Stat. 5/5-50); Wise (King County, WA) Decl. ¶¶ 24, 26 [Doc.
No. 100-25] (Election Day registration, citing Wash. Rev. Code § 29A.08.140); Hilby (Sun
Prairie, WI) Decl. ¶ 8 [Doc. No. 100-26] (Election Day registration, see Wisc. Stat. § 6.15)). 10
10
Defendants do not rebut Plaintiffs’ assertion that Plaintiff States also allow individuals to
register to vote up to at least 30 days before a federal election, and in some States, individuals
may register closer to or on Election Day, contending instead that Plaintiffs’ assertion “is a legal
conclusion” that does not require a response. Defs.’ SUMF ¶ 10 [Doc. No. 155]. The court finds
Defendants’ statement to be nonresponsive and finds the assertion that Plaintiff States and their
11
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39a
In some of the Plaintiff States, 17-year-old citizens who will be 18 years old by the next
federal general election are eligible to register to vote in federal primary elections. Pl. SUMF
¶ 14 [Doc. No. 105] (citing Holmes (WA) Decl. ¶ 48 [Doc. No. 100-4] (citing Wash. Rev. Code
§§ 29A.04.061, 29A.08.170); Rosenberg (CT) Decl. ¶ 36 [Doc. No. 100-7] (citing Conn. Gen.
Stat. § 9-12(b)); Albence (DE) Decl. ¶ 41 [Doc. No. 100-8] (citing 15 Del. Code § 1701(a));
Miller (DC) Decl. ¶ 22 [Doc. No. 100-9] (citing D.C. Code § 1-1001.07(a-2)); Berry (MD) Decl.
¶ 61 [Doc. No. 100-11] (citing Md. Elec. Law § 3-102(a)(2)(i)); Flynn (ME) Decl. ¶ 33 [Doc.
No. 100-10] (citing Me. Rev. Stat. tit. 21-A,§ 111-A); Barber (NJ) Decl. ¶ 41 [Doc. No. 100-15]
(citing N.J. Stat. §§ 19:31-5, 19:4-1.2); Vigil (NM) Decl. ¶ 37 [Doc. No. 100-16] (citing N.M.
Stat. § 1-4-2(B)(3)); Brunton (NC) Decl. ¶ 8 [Doc. No. 100-18] (citing N.C. Gen. Stat. § 163-
59); Rock (RI) Decl. ¶ 38 [Doc. No. 100-21] (citing R.I. Gen. Laws § 17-1-3(b)); Koski (VA)
Decl. ¶ 34 [Doc. No. 100-23] (citing Va. Code § 24.2-403); Hanzas (VT) Decl. ¶ 33 [Doc. No.
100-22] (citing Vt. Stat. tit. 17, § 2121); Michalowski (Cook County, IL) Decl. ¶ 28 [Doc. No.
100-24] (citing 10 Ill. Comp. Stat. 5/3-6); Wise (King County, WA) Decl. ¶ 44 [Doc. No. 100-25]
(citing Wash. Rev. Code § 29A.08.170)); see Minn. Stat. § 201.071 (allowing voter registration,
but not voting, for 16-year-olds). 11
localities require eligibility to register voters for federal elections undisputed for purposes of the
pending motions.
11
Defendants do not rebut Plaintiffs’ assertion that in some Plaintiff States, 17-year-old citizens
who will be 18 years old by the next federal general election are eligible to register to vote in
federal primary elections, contending instead that Plaintiffs’ statement does not require a
response on the grounds that “[it] is a legal conclusion[.]” Defs.’ SUMF ¶ 10 [Doc. No. 155].
The court finds Defendants’ statement to be nonresponsive and finds the assertion that some
Plaintiff States and their localities allow 17-year-old citizens who will be 18 years old by the
next federal general election to register to vote in federal primary elections undisputed for
purposes of the pending motions.
12
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II. Defendants’ Motion to Dismiss for Lack of Subject-Matter Jurisdiction
A. Ripeness
Defendants and Intervenor States contend that judicial review will be appropriate later,
after implementation actions have been taken, because Defendant agencies are still considering
and deliberating future action. Defs.’ Mem. ISO Mot. to Dismiss and Opp’n (“Defs.’ Mem.”) 9
[Doc. No. 157]; Intervenors’ Opp’n 7, 15 [Doc. No. 153]. The court has accepted this argument
in part and dismissed without prejudice Plaintiffs States’ amended complaint pursuant to Federal
Rule of Civil Procedure 12(b)(1) on prudential ripeness grounds as to their claims regarding the
EO and its implementation with regard to elections occurring after November 3, 2026. Mem. &
Order [Doc. No. 190]. The court denied dismissal pursuant to Federal Rule of Civil Procedure
12(b)(1) on prudential ripeness grounds with regard to the November 3, 2026 election, and all
earlier elections. Id.
B. Standing
Defendants and Intervenor States contest this court’s subject matter jurisdiction in this
case, arguing that Plaintiff States lack standing to challenge the EO. See Defs.’ Mem. 7–12 [Doc.
No. 157]; Intervenors’ Opp’n 2, 13 [Doc. No. 153]. “Article III confines the federal judicial
power to the resolution of ‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 594 U.S.
413, 423 (2021). “Such a case or controversy exists only when the plaintiff demonstrates such a
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends.” Gustavsen v. Alcon
Labs., Inc., 903 F.3d 1, 6–7 (1st Cir. 2018) (citations omitted). “For there to be a case or
controversy under Article III, the plaintiff must have a ‘personal stake’ in the case – in other
words, standing.” Ramirez, 594 U.S. at 423 (citation omitted). To establish standing, “a plaintiff
must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or
13
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imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would
likely be redressed by judicial relief.” Id. “If the plaintiff does not claim to have suffered an
injury . . . there is no case or controversy for the federal court to resolve.” Id. (citation and
internal quotation marks omitted).
Defendants characterize the EO as an “intra-Executive Branch directive” that “of its own
force[] does not change anything at all about elections in any State.” Defs.’ Mem. 8 [Doc. No.
157]. They argue that the EO merely directs possible future agency action that is insufficiently
imminent for an Article III injury. Id. at 9–11. Intervenor States similarly contend that the EO, on
its face, does not require any action of Plaintiff States and that any injury claimed by Plaintiff
States will be too speculative for this court’s review until the EO is implemented. Intervenors’
Opp’n 2–7 [Doc. No. 153].
Plaintiff States assert that the EO’s directives require them to immediately prepare to
comply with the EO and respond to federal implementation of the EO in anticipation of the
November 2026 general election. Pls.’ Opp’n to Defs.’ Mot. to Dismiss and Reply (“Pls.’ Reply”)
2–9 [Doc. No. 163]. Many Plaintiff States “are actively administering or preparing to administer
federal primaries” and all Plaintiff States are presently preparing to administer the November
2026 general election. Pls.’ SUMF ¶ 4 [Doc. No. 105]; see, e.g., Tassinari Decl. ¶ 36 [Doc. No.
100-2] (Massachusetts has already “begun preparing training materials, guidance documents and
communications to local election officials for the upcoming election cycle and have planned
training sessions already scheduled.”); Rosenberg Decl. ¶ 26 [Doc. No. 100-7] (Connecticut
election officials are busy with endorsements and primary preparations in May and June,
conducting primaries in September, processing absentee ballots in late September and October,
and conducting the general election in November 2026). Defendants do not dispute these
presently ongoing efforts. Defs.’ SUMF ¶ 8 [Doc. No. 155].
14
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Plaintiff States’ statutory obligations—undisputed by Defendants, see Defs.’ SUMF ¶ 43
[Doc. No. 155]—require immediate action from Plaintiffs. For example, Connecticut has already
had to pull elections staff from critical projects required by statute, e.g., translating election
materials, as required by the Voting Rights Act, to analyze and develop a compliance plan for the
EO. See Rosenberg Decl. ¶ 12 [Doc. No. 100-7].
Additionally, because state law requires Plaintiff States to provide mail ballots to voters
entitled to vote by mail, 12 Plaintiff States must plan to comply with the EO’s directives on mail
ballots. Nearly half of Plaintiff States have already purchased mail ballot envelopes for the 2026
federal election cycle that will not be in compliance with the requirements the EO has directed
USPS to adopt by rulemaking. Pls.’ SUMF ¶ 62 [Doc. No. 105]; see also USPS Notice of
Proposed Rulemaking, Ballot Mail for Federal Elections, 91 Fed. Reg. 32915 (June 2, 2026)
(requiring new envelope and design standards, including Intelligent Mail Barcodes, for election
mail). For example, Massachusetts has already spent approximately $3 million on its mail ballot
envelopes, see Tassarini Decl. ¶ 81 [Doc. No. 100-2], and both Maine and Rhode Island have
already spent over $50,000 on ballot envelopes and return envelopes that lack Intelligent Mail
barcodes. Flynn (ME) Decl. ¶¶ 67–68 [Doc. No. 100-10]; Rock (RI) Decl. ¶¶ 72–73 [Doc. No.
100-21]. And Delaware has already purchased envelopes, received approval from USPS on the
design, and “does not have funds budgeted” for purchasing new envelopes that would be
compliant with the proposed rule. Albence Decl. ¶¶ 75–76 [Doc. No. 100-8].
Defendants and Intervenors dispute that these monetary expenditures qualify as Article
III injury, because the EO does not force Plaintiff States to redesign their ballots, but rather
12
See, e.g., Ariz. Rev. Stat. § 16-541; Cal. Elec. Code § 3000.5; Con. Gen. Stat. Ch. 145, § 9;
Me. Stat. tit. 21-A, ch. 9, § 753-B; Mass. Gen. Laws ch. 54, §§ 25B(a)(2), 89; Nev. Rev. Stat.
§ 293.269911; Or. Rev. Stat. § 254.470.
15
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merely directs USPS to issue an NPRM that requires Plaintiff States to redesign their ballots. See
Defs.’ SUMF ¶ 62 [Doc. No. 155]. Accordingly, they argue that any fiscal injury incurred by
Plaintiff States is insufficiently traceable to the EO. See Intervenors’ Opp’n 13–14 [Doc. No.
153]. Further, Defendants dispute that the EO threatens Plaintiff States’ election officials with
criminal enforcement, sufficient to comprise an imminent Article III injury-in-fact. See Defs.’
Mem. 11–12 [Doc. No. 157] (citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157–58
(2014)).
Defendants and Intervenors are incorrect. Plaintiff States are actively working to conduct
primary, special, and general elections. The EO has ordered administrative agencies to take
action in the coming months that has already required Plaintiff States to respond given the
practical nature of an election cycle. A list of several federal criminal offenses relating to voter
fraud appears multiple times in the EO: first as supporting the purpose of the EO, i.e., to reduce
voter fraud, see Exec. Order 14399 § 1, and then again in describing an enforcement plan as to
both Section 2 specifically, see id. § 2(b), and the EO as a whole, see id. § 5. The EO’s
prescriptive and proscriptive language, in conjunction with multiple references to criminal
penalties, implicitly threatens enforcement of those enumerated laws against election officials
who furnish ballots to voters excluded from the Confirmed Citizen Lists or the USPS Lists, and
that threat is sufficiently imminent for Article III injury. See N.H. Lottery Comm’n v. Rosen, 986
F.3d 38, 49–51 (1st Cir. 2021) (Courts “do not require a plaintiff to expose [themselves] to
liability before bringing suit to challenge the basis for the threat.”) (quotation omitted).
Moreover, not only are Plaintiff States experiencing injury now with respect to planning,
but it is undisputed that, should the EO’s directives go into effect, Plaintiff States will incur
compliance costs. Defs.’ SUMF ¶ 63 [Doc. No. 155]. An order declaring the EO as unlawful and
enjoining its implementation for the November 2026 or earlier elections would redress Plaintiff
16
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States’ immediate injuries because they would no longer have to plan to comply or actually
comply with the EO prior to those elections, and Plaintiff States’ election officials would no
longer be threatened with criminal prosecution. Accordingly, Plaintiff States have standing to
challenge the EO as unconstitutional. See California v. Trump, 786 F. Supp. 3d 359, 377 (D.
Mass. 2025) (states have standing to challenge Executive Order No. 14248, Preserving and
Protecting the Integrity of American Elections); Washington v. Trump, 814 F. Supp. 1173, 1198–
98 (W.D. Wash. 2026) (same).
Therefore, the court DENIES Defendants’ motion, joined by the Intervenor States, to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing with regard to
the November 3, 2026 (and all earlier) elections.
III. Defendants’ Motion to Dismiss for Failure to State a Claim
A. Standard of Review
In assessing a complaint under Federal Rule of Civil Procedure 12(b)(6), the court
assumes “the truth of all well-pleaded facts” and draws “all reasonable inferences in the
plaintiff’s favor.” Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006). To survive dismissal, a
complaint must contain sufficient factual material to “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . [f]actual
allegations must be enough to raise a right to relief above the speculative level[.]” Id. at 555
(citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
17
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B. Cause of Action
Defendants argue that Plaintiff States lack a statutory cause of action to challenge the EO
and that ultra vires review is unavailable because Plaintiffs fail to plead a specific statutory
violation. Defs.’ Mem. 23–25 [Doc. No. 157]. Defendants argue that Plaintiffs must wait until the
EO is implemented and then sue the implementing agencies under the Administrative Procedure
Act (“APA”). Id.; see also Intervenors’ Opp’n 16 [Doc. No. 153].
A claim in federal court requires a valid cause of action. See Davis v. Passman, 442 U.S.
228, 236–41 (1979). While a party challenging executive action typically brings suit under the
APA, the APA is unavailable to challenge an executive order because “the President is not an
agency within the meaning of” the APA, and the issuance of an executive order is not a final
agency action. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992).
In the absence of a statute authorizing suit, parties “are entitled to bring a non-statutory
cause of action questioning the legality of [an] Executive Order.’” Chamber of Commerce v.
Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996)); see New York v. McMahon, 784 F. Supp. 3d 311,
352 (D. Mass. 2025) (noting that “[a] claim alleging that the President acted in excess of his
statutory authority is judicially reviewable even absent an applicable statutory review provision”)
(quoting Am. Forest Res. Council v. United States, 77 F.4th 787, 796 (D.C. Cir. 2023)); New
Hampshire Indonesian Cmty. Support, 765 F. Supp. 3d 102, 112 (D.N.H. 2025) (vacated on other
grounds) (“[T]he plaintiffs have a cause of action to seek injunctive relief to redress certain
governmental actions that contravene the Constitution or a federal statute.”) (citing Youngstown,
343 U.S. at 582). “To act ultra vires a government official is either acting in a way that is
impermissible under the Constitution or acting outside of the confines of his statutory authority.”
New York, 784 F. Supp. 3d 311, 352 (D. Mass. 2025) (quotation omitted). “The nonstatutory
review action finds its jurisdictional toehold in the general grant of federal-question jurisdiction
18
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46a
of 28 U.S.C. § 1331.” Rhode Island Dep’t of Env’t Mgmt. v. United States, 304 F.3d 31, 42 (1st
Cir. 2002) (citation omitted).
This cause of action is subject to certain limitations, however. Judicial review is available
only if the Executive Branch has “taken action entirely ‘in excess of its delegated powers and
contrary to a specific prohibition’ in a statute.” Nuclear Regul. Comm’n v. Texas, 605 U.S. 665,
681 (2025) (quoting Ry. Clerks v. Ass’n for Benefit of Non-contract Emps., 380 U.S. 650, 660
(1965)). Further, judicial review is unavailable if an existing “statutory review scheme [1]
provides aggrieved persons ‘with a meaningful and adequate opportunity for judicial review[;]’”
or “[2] forecloses all other forms of judicial review.” Id. (quoting Bd. of Governors, FRS v.
MCorp Fin., Inc., 502 U.S. 32, 43–44 (1991)).
Here, Plaintiffs have a cause of action, sounding in equity, to seek injunctive and
declaratory relief to redress governmental action that allegedly contravenes the Constitution. See
Youngstown, 343 U.S. at 585. Defendants admit that no statutory review scheme would provide
Plaintiffs with a “meaningful and adequate opportunity for judicial review” at this time. Nuclear
Regul. Comm’n, 605 U.S. at 681. Having found Plaintiffs sufficiently injured due to the short
timeframe required by the EO’s directives prior to the November 3, 2026, and earlier elections,
the court will review Plaintiffs’ facial challenge to the constitutionality of the EO, sounding in
equity, and Defendants’ Motion to Dismiss [Doc. No. 154] based on a failure to plead a cause of
action is DENIED.
C. Dismissal of President Trump
Defendants argue next that President Trump should be dismissed as a defendant because
the court lacks jurisdiction to issue injunctive or declaratory relief as to the President in the
performance of his official duties. See Defs.’ Mem. 30–31 [Doc. No. 157], id. at 46–47 (citing
Mississippi v. Johnson, 71 U.S. 475 (1866) and Franklin, 505 U.S. at 827 (Scalia, J.,
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concurring)). Plaintiff States seek a declaration that the EO is unlawful but do not seek an
injunction against the President. Am. Compl. at ECF 44 [Doc. No. 65].
Contrary to Defendants’ assertions, Presidential action is not inherently unreviewable.
Franklin, 505 U.S. at 828 (Scalia, J., concurring) (citing Youngstown, 343 U.S. 579); Nixon v.
Fitzgerald, 457 U.S. 731, 753–54 (1982) (“separation-of-powers doctrine does not bar every
exercise of jurisdiction over the President of the United States”). Rather, “the President is subject
to judicial process in appropriate circumstances[,]” Clinton v. Jones, 520 U.S. 681, 703 (1997),
and the Supreme Court has expressly rejected the notion of “an absolute, unqualified Presidential
privilege of immunity from judicial process under all circumstances,” id. at 704 (quoting United
States v. Nixon, 418 U.S. 683, 706 (1974)).
Defendants primarily rely on Justice Scalia’s concurrence in Franklin, in which he stated,
“I think we cannot issue a declaratory judgment against the President. It is incompatible with his
constitutional position that he be compelled personally to defend his executive actions before a
court.” Franklin, 505 U.S. at 827 (Scalia, J., concurring). However, six years after Franklin, the
Supreme Court expressly stated in Clinton v. City of New York, 524 U.S. 417, 433 n.22 (1998),
that a declaratory judgment against the President could redress the plaintiff’s injuries. Ultimately,
the case law does not support a firm prohibition on a declaratory judgment against the President.
See Kingdom v. Trump, No. 25-cv-691-RCL, 2025 WL 1568238, at *16 (D.D.C. June 3, 2025)
(declining to dismiss declaratory judgment claim against President); Missouri v. Biden, 662 F.
Supp. 3d 626, 682 (W.D. La. 2023) (same); Stone v. Trump, 400 F. Supp. 3d 317, 359 (D. Md.
2019) (same). Therefore, where Plaintiffs seek only declaratory and not injunctive relief as to the
President, the court DENIES Defendants’ Motion [Doc. No. 154] to dismiss the President from
this action.
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D. Dismissal of Commerce Defendants
Defendants argue that the Department of Commerce and Commerce Secretary Lutnick
should be dismissed as Defendants because the EO includes no express role for the Commerce
Defendants, only minimal “coordinat[ion]” regarding implementation. See Defs.’ Mem. 30–31
[Doc. No. 157]. Plaintiffs assert only Count I of the Amended Complaint [Doc. No. 65] against
the Commerce Defendants, id. ¶¶ 150–66. Plaintiff States argue that both the President and
Commerce Defendants “play a critical role in the EO’s issuance and implementation[.]” See Pls.’
Reply 30 [Doc. No. 163].
The EO features the Commerce Secretary minimally in its directives. The Commerce
Secretary is mentioned only in Section 4 of the EO, which requires that “[t]he Secretary of
Homeland Security, the Commissioner of SSA, and the Postmaster General shall coordinate with
the Secretary of Commerce in effectuating all relevant aspects of the implementation of this
order.” Exec. Order 14399 § 4(a). But while the specifics of the Commerce Secretary’s role are
not yet clear, where the court is considering a facial attack against the EO, and the EO explicitly
charges the Commerce Secretary with implementation of the EO, the court DENIES Defendants’
Motion [Doc. No. 154] to dismiss the Department of Commerce and the Secretary of Commerce.
IV. Plaintiffs’ Motion for Summary Judgment
Plaintiffs ask the court to declare Sections 2, 3, and 5 of the EO facially unconstitutional
and enjoin all agency heads from implementing the EO’s directives. See Pls.’ Proposed Order
[Doc. No. 97-1].
A. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate
when “the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material when, under
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the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Baker v. St. Paul Travelers Ins. Co., 670 F.3d 119, 125
(1st Cir. 2012). A dispute is genuine if a reasonable jury could return a verdict for the non-
moving party. Anderson, 477 U.S. at 248.
The moving party bears the initial burden of establishing the absence of a genuine dispute
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once established, the burden
shifts to the non-moving party to set forth facts demonstrating that a genuine dispute of material
fact remains. Id. at 322. The non-moving party cannot oppose a properly supported summary
judgment motion by “rest[ing] upon mere allegations or denials of [the] pleadings.” Anderson,
477 U.S. at 256. Rather, the non-moving party must “go beyond the pleadings and by [his or] her
own affidavits, or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S.
at 324 (quotations omitted). Disputes over facts “that are irrelevant or unnecessary” will not
preclude summary judgment. Anderson, 477 U.S. at 248.
Generally, such a motion is brought after the parties have completed discovery. See
Celotex Corp., 477 U.S. at 322. Nonetheless, unless a local rule or court order provides
otherwise, the movant may file a summary judgment motion before discovery is complete or
before it has even commenced. See Fed. R. Civ. P. 56(b) (“[A] party may file a motion for
summary judgment at any time until 30 days after the close of all discovery.”). However, “the
party opposing the motion for summary judgment bears the burden of responding only after the
moving party has met its burden of coming forward with proof of the absence of any genuine
issues of material fact.” Celotex Corp., 477 U.S. at 322 (citation omitted).
When reviewing a motion for summary judgment, the court must take all properly
supported evidence in the light most favorable to the non-movant and draw all reasonable
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inferences in the non-movant’s favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for
summary judgment[.]” Anderson, 477 U.S. at 255.
Here, as set forth above, see supra Section I, there is no genuine dispute of material facts
for purposes of the pending motion.
B. Saving Language
As a threshold issue, much of Defendants’ opposition is based on the EO’s qualifying
language, directing executive agencies to act “[t]o the extent feasible and consistent with
applicable law[.]” Exec. Order 14399 § 2(a). Defendants argue that the EO cannot be facially
unlawful, because the EO explicitly requires that its directives comply with the law. Defs.’ Mem.
44 [Doc. No. 157]; see also Intervenors’ Opp’n 7 [Doc. No. 153].
“The mere possibility that some agency might make a legally suspect decision” and
disregard a saving clause’s command to follow the law when implementing an executive order
“does not justify an injunction against enforcement” of that order. Bldg. and Constr. Trades
Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002). Accordingly, if an executive
order containing a saving clause directs a subordinate to achieve a goal that could be achieved in
multiple—both legal and illegal—ways, a reviewing court will interpret the order in light of the
saving clause to direct only permissible action. Common Cause v. Trump, 506 F. Supp. 3d 39,
49–50, 53 n.8 (D.D.C. 2020); see also Trump v. New York, 592 U.S. 125, 131 (2020).
“If ‘consistent with law’ precludes a court from examining whether the Executive Order
is consistent with law,” however, “judicial review is a meaningless exercise, precluding
resolution of the critical legal issues.” City & Cnty. of San Francisco v. Trump, 897 F.3d 1225,
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1240 (9th Cir. 2018). Accordingly, where, as here, the parties’ dispute whether certain action
required by an order is permissible, review is not precluded by a saving clause.
Moreover, executive orders, “cannot be held to destroy themselves through saving
clauses.” Common Cause, 506 F. Supp. 3d at 53 n.8 (quoting FTC v. Credit Bureau Ctr., LLC,
937 F.3d 765, 755 (7th Cir. 2019)). If an executive order unambiguously “command[s] . . . action
that a saving[ ] clause purports to negate,” a reviewing court must interpret the order’s operative
provision as written, even if that requires disregard of the saving language. Id. Where a plaintiff
argues that an executive order is invalid in all possible applications, the saving clause itself
cannot preclude review. See Allbaugh, 295 F.3d at 33 (citing Reno v. Flores, 507 U.S. 292, 301
(1993)). If implementation consistent with applicable law is impossible, an executive order’s
saving clause or otherwise qualifying language “is meaningless.” League of United Latin Am.
Citizens v. Exec. Off. of President, 780 F. Supp. 3d 135, 176 (D.D.C. 2025). Therefore, the court
declines to interpret the EO as nullifying its meaning through saving language and considers
whether the President has the authority to issue the EO regardless of the qualifying language. Id.
C. Section 2 of the EO
Section 2 directs the USCIS director to compile a Confirmed Citizen List for each State,
including individuals who could be eligible to vote in an upcoming election based on citizenship,
age, and State residency. Exec. Order 14399 § 2(a). The EO requires USCIS to compile these
Lists, “[t]o the extent feasible and consistent with applicable law,” from various federal
records/databases (including DHS naturalization and citizenship records, SSA records, and the
SAVE database) and to send the Lists to State election officials 60 days before a federal election,
after which the State will have an opportunity to review and send in suggested
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corrections/modifications. Id. Section 2 then identifies several federal criminal offenses 13 and,
citing those offenses, directs DOJ to prioritize the investigation and prosecution of federal
election officials or administrators “who issue Federal ballots to individuals not eligible to vote
in a Federal election[.]” Id. § 2(b).
1. Section 2(a): Establishment of Confirmed Citizen Lists
Plaintiff States argue the President lacks authority to establish Confirmed Citizen Lists.
Pls.’ Mem. 8–12 [Doc. No. 106]. Consistent with Constitutional principles of State control over
elections, all States already maintain registered voter databases, subject to some general
structural requirements imposed by Congress. HAVA requires each State to implement a “single,
uniform, official, centralized, interactive computerized statewide voter registration list,” 52
U.S.C. § 21083(a)(1), and to maintain that list regularly by adding newly eligible voters and
removing ineligible voters. Id. §§ 21083(a)(2)(A)(iii), (a)(2)(B). HAVA provides only a
minimum set of requirements for categories of information included on voter registration lists. 52
U.S.C. § 21083(a)(1)(A)(ii)–(iii) (requiring that voters’ name and registration information be
included in the list and that each voter be assigned a unique identifier). Further, state election
officials retain discretion under HAVA to determine the appropriate method for creating, storing,
and maintaining their State’s voter registration list as well as to establish procedures for
registering to vote. Id. § 21085 (“The specific choices on the methods of complying with the
requirements of this subchapter shall be left to the discretion of the State.”); id. § 20503 (“[E]ach
State shall establish procedures to register to vote in elections for Federal office[.]”).
13
Namely, 18 U.S.C. § 2(a) (Aiding and Abetting Liability); 18 U.S.C. § 241 (Conspiracy
Against Rights); 18 U.S.C. § 371 (Conspiracy or Offense to Defraud the United States); 18
U.S.C. § 611(a) (Voting by Aliens); 18 U.S.C. § 1001 (Criminalizing False Statements); 18
U.S.C. 1015 (Criminalizing False Statements re: Citizenship); 52 U.S.C. § 10307 (False
Information in Voting); and 52 U.S.C. § 20511 (Criminal Penalties for Election Officials who,
inter alia, procure false ballots).
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Defendants do not defend the establishment of the Lists directly, arguing that “it is not
even clear whether or when these [Confirmed Citizen L]ists will be created—much less in what
form, based on what data, or how they might be used.” Defs.’ Mem. 18 [Doc. No. 157]; but see
Defs.’ Notice [Doc. No. 188] (notifying the court that, on June 8, 2026, DHS Secretary approved
USCIS’ plan to build infrastructure necessary to establish the Confirmed Citizen Lists).
Intervenor States do defend the Lists, characterizing Section 2 as “organiz[ing] information
already within the Executive Branch’s possession” and asserting that the compilation of the
Confirmed Citizen Lists supports “the President’s duty to ‘take Care that the Laws be faithfully
executed[.]’” Intervenors’ Opp’n at 8–9 [Doc. No. 153] (citing U.S. CONST. art. II, § 3).
It is clear that the federal agencies charged with compiling Confirmed Citizen Lists lack
the ability to create complete and accurate lists of the U.S. citizens residing in every State. The
EO provides that the Confirmed Citizen Lists “shall be derived from Federal citizenship and
naturalization records, SSA records, SAVE [Systematic Alien Verification for Entitlements]
data,[14] and other relevant Federal databases.” Exec. Order 14399, § 2(a); see also id. § 4(c) (the
SSA Commissioner must “provide all . . . citizenship and identity data [necessary]” to compile
the Confirmed Citizen Lists for the DHS secretary, “consistent with applicable law[.]”). 15 But
14
SAVE is a system administered by DHS that is “designed to help federal, state, tribal, and local
government agencies confirm citizenship and immigration status prior to granting benefits and
licenses, as well as for other lawful purposes.” DHS, Privacy Impact Assessment for the
Systematic Alien Verification for Entitlements Program, DHS Ref. No. DHS/USCIS/PIA-006(c),
at 2 (2020), https://perma.cc/HU2M-NTL8 (2020 PIA). SAVE users “formalize the purpose and
use in which they use SAVE through a Memorandum of Agreement (MOA) or Computer
Matching Agreement” establishing “the terms and conditions for the user agency’s participation
in SAVE.” Id. at 2–3. One purpose for which States can enter into an agreement to use SAVE is
to verify the citizenship of registered voters. Privacy Act of 1974, 5 U.S.C. § 552a; Notice of
Modified System of Records, 90 Fed. Reg. 48948, 48952 (Oct. 31, 2025) (2025 SORN). DHS
does not dispute that the SAVE system has erroneously flagged citizens as noncitizens. See Pls.’
SUMF ¶¶ 15–16 [Doc. No. 105]; Defs.’ SUMF ¶¶ 15–16 [Doc. No. 155].
15
Defendants deny that USCIS has made “any final decisions about what, if any, information
will be included in any [Confirmed Citizenship Lists] that may ultimately be created” and, in
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where a list of citizens will only be created “[t]o the extent feasible and consistent with
applicable law,” individual information may only be shared within the limitations of the Privacy
Act. 16 More than that, while the EO provides that the Confirmed Citizen Lists “shall be derived
from” certain federal records, id. § 2(a), those records do not necessarily track name changes
(such as when a woman changes her name at marriage) or residence changes when citizens move
from State to State. Accordingly, these Confirmed Citizen Lists will necessarily be incomplete.
Further, while Section 2 labels these Lists as “Citizenship Lists,” the EO does not order
the creation of a national database comprised exclusively of U.S. citizenship information.
Instead, Section 2 directs the compilation of “Lists” for each State limited to “individuals
confirmed to be United States citizens who will be above the age of 18 at the time of an
upcoming Federal election and who maintain a residence in the subject State[.]” Id. § 2(a)
(emphasis added). However, the EO includes no relevant statutory or constitutional authority for
the compilation of “Lists” that include individuals who meet the States’ additional and particular
criteria for residence. Similarly, the EO points to no authority to limit voting eligibility in
primary elections to citizens above the age of 18. Neither Defendants nor Intervenors maintain
that any such authority exists. The Constitution provides that only the States determine voter-
eligibility requirements, subject, of course, to Constitutional restraints. U.S. CONST. art. I, § 2,
cl. 1; art. II, § 1, cl. 2; amend. XVII; amend. XXVI. Both Congress and the President lack any
role regarding voter eligibility.
response to Plaintiffs’ showing that the SAVE system has erroneously flagged citizens as
noncitizens, contend that EO § 2(a) “lists ‘SAVE data’ as a potential source of data[.]” Defs.’
SUMF ¶ 15 [Doc. No. 155] (citing Mayhew Decl. ¶¶ 5–10 [Doc. No. 156-1]). As of June 8,
2026, DHS has not confirmed whether or in what capacity SAVE data will be used. See Defs.’
Notice 2 [Doc. No. 188].
16
The Privacy Act strictly limits government agencies from disclosing records about an
individual. See 5 U.S.C. § 552a(a)(4) (defining “record”); id. § 552a(b) (limiting disclosure).
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Notably, nowhere in HAVA does Congress prescribe who should be included on State
voter lists. Further, neither in HAVA nor any other federal statute does Congress authorize the
federal government to create their own voting database. Instead, Congress, consistent with the
Constitution, has left that authority to the States alone. Accordingly, the creation of the
Confirmed Citizen Lists is ultra vires because the President lacks any authority to compile voter
lists for each State. See Youngstown, 343 U.S. at 582.
2. Section 2(b): List Enforcement
After describing the requirements surrounding the compilation and transmission of the
Confirmed Citizens Lists, Section 2 then requires that DOJ prioritize the investigation and
prosecution of election officials and administrators “who issue Federal ballots to individuals not
eligible to vote in a Federal election,” including specific criminal offenses, largely relating to
voter-fraud. Exec. Order 14399 § 2(b). Plaintiffs argue that Section 2 threatens criminal
investigation and prosecution “on a legally baseless theory” to “improperly conscript Plaintiff
States and their elections officials to carry out a presidential policy.” Pls.’ Reply at 16 [Doc. No.
163]. Defendants characterize Section 2(b) as a matter of prosecutorial discretion, exempt from
judicial review. Defs.’ Reply at 23 [Doc. No. 167]. Intervenor States also dispute that the EO
does anything more than direct DOJ to enforce existing federal election laws. Intervenors’ Opp’n
11 [Doc. No. 153].
Certainly, the President may direct DOJ to prioritize the investigation and prosecution of
certain criminal offenses. See Trump v. United States, 603 U.S. 593, 620 (2024) (“[T]he
Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to
investigate and prosecute, including with respect to allegations of election crime.”) (citing United
States v. Nixon, 418 U.S. 683, 693 (1974)). And, the Constitution empowers the President to
“take care that [18 U.S.C. §§ 2(a), 241, 371, 611(a), 1001, 1015; 52 U.S.C. §§ 10307, and 20511
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are] faithfully executed” and prioritize the enforcement of violators accordingly. U.S. CONST. art.
II, § 3. However, criminal offenses are defined by Congress and neither the Take Care nor
Guarantee Clause empowers the President to create a new criminal offense. See U.S. CONST. art.
I, § 8 (“Congress shall have the power . . . [t]o define and punish Piracies and Felonies
committed on the high Seas, and Offences against the Law of Nations.”).
Congress may explicitly delegate the power to define a criminal offense to the President.
See United States v. Grimaud, 220 U.S. 506, 517 (1911) (“[W]hen Congress had legislated and
indicated its will, it could give to those who were to act under such general provisions ‘power to
fill up the details’ by the establishment of administrative rules and regulations, the violation of
which could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by
Congress, or measured by the injury done.”). But neither the EO, nor the parties’ briefing
references a statute that delegates such authority from Congress to the President in this voting-
related context. Cf. Touby v. United States, 500 U.S. 160 (1991) (upholding a delegation of
power to the Attorney General to bypass (for a limited time) several of the requirements for
permanent drug scheduling and expedite the designation of a substance as “controlled”).
Defendants argue that no legal significance, criminal or otherwise, attaches to a State’s
decision to utilize or disregard DHS’ Confirmed Citizens List. Defs.’ Mem. at 36 [Doc. No. 157].
Defendants describe the Lists as “optional resource[s] that states can use or ignore[.]” Id.
(citation omitted). Intervenor States also assert that the “use of the Lists by the States is
optional[,]” Intervenors’ Opp’n 5 [Doc. No. 153] (emphasis in original), but then point to the law
enforcement implications of the EO, see id. at 9 (citing U.S. CONST. art. II, § 3 and arguing that
the compilation of the Lists supports “the President’s duty to ‘take Care that the Laws be
faithfully executed[.]’”). Where the President seeks to have the Attorney General and DOJ rely
on the Confirmed Citizens Lists to support the President’s stated mission to reduce voter fraud,
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see Exec. Order 14399 § 1 (“Purpose and Policy”), the Lists are being used as an enforcement
mechanism that has some type of legal consequence, or at minimum, as a threatened enforcement
mechanism that will chill local election officials from complying with legal obligations to ensure
that all eligible citizens may vote. Accordingly, to the extent the EO attempts to intimidate local
election officials to use the necessarily incomplete Confirmed Citizenship Lists as a resource,
lest they face criminal prosecution, such efforts fall outside the Presidents’ Article II and
otherwise-delegated authority.
D. Section 3 of the EO
Plaintiff States argue that Section 3 of the EO, which directs USPS to engage in
rulemaking regarding regulating absentee and mail-in ballots, unconstitutionally interferes with
“States’ and Congress’s authority to regulate elections and Congress’s power to regulate USPS.”
Pls.’ Mem. 14 [Doc. No. 106]. Defendants argue that the merits are impossible to argue because
the ultimate agency action that USPS will take is still unknown. Defs.’ Mem. 31–37 (Doc. No.
157]. Intervenor States assert that the President, vested with all the power of the Executive
Branch, inherently has the authority to direct USPS. Intervenors’ Opp’n 17–20 [Doc. No. 153].
Section 3 of the EO directs USPS to compile its own Lists of individuals eligible to vote
by mail and prohibits the transmission of a mail-in ballot completed by anyone not on USPS’
Lists. See Exec. Order 14399 § 3(b); see also USPS Notice of Proposed Rulemaking, Ballot Mail
for Federal Elections, 91 Fed. Reg. 32915, 32918 (June 2, 2026) (Mail ballots “that do not
comply with [standards required by the EO] will not be accepted and will be returned to the
authorized ballot mailer.”). But the Constitution reserves the power to determine voter eligibility
to the States alone. U.S. CONST. art. I, § 2, cl. 1; amend. XII; amend. XVII. Neither the Executive
Branch nor Congress may interfere with this power.
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Additionally, Congress has empowered USPS to “adopt, amend, and repeal such rules
and regulations, not inconsistent with this title, as may be necessary in the execution of its
functions[.]” 39 U.S.C.§ 401(2). However, no law enacted by Congress delegates authority to
control mail-in voting to USPS. The voting-related guidance currently issued by USPS is not
binding on the States, merely recommended. See USPS Pub. 631, Official Election Mail –
Graphic Guidelines and Logos (https://about.usps.com/publications/pub631.pdf) (Feb. 2026);
USPS Kit 600, Official Election Mail Guide (https://about.usps.com/kits/kit600.pdf) (Feb.
2026). 17 Accordingly, USPS lacks statutory authorization to promulgate any binding regulations
on mail-in voting.
Finally, the EO’s directive that USPS require all States to use a specific mail-in ballot is
inconsistent with USPS rulemaking procedure. If seeking to make a “change in the nature of
postal services which will generally affect service on a nationwide or substantially nationwide
basis,” USPS must submit a proposal to the Postal Regulatory Commission (“PRC”), for an
advisory opinion. 39 U.S.C. § 3661(b). The PRC then has 90 days to issue its advisory opinion.
39 C.F.R. § 3020.102(a). The EO requires USPS to issue an NPRM by May 30, 2026, and then a
final rule by July 29, 2026. This timeframe provides no allowance for Congress’ mandated
procedure regarding USPS rulemaking. 39 U.S.C. § 3661(b). Therefore, USPS lacks authority to
17
USPS created and published these election mail guidance documents pursuant to a 2021
settlement agreement between USPS and the NAACP, arising out of litigation regarding USPS’
announcement and implementation of policy changes to reduce mail pick-up in advance of the
2020 general election. See Stip. of Settlement, Ex. A at 2, NAACP v. USPS, No. 1:20-cv-02295-
EGS (D.D.C. Dec. 17, 2021), Dkt. No. 170. The 2021 settlement agreement required USPS, inter
alia, to prioritize the timely delivery of election mail for every national election through 2028. Id.
The NAACP has filed a motion to enforce that settlement agreement, arguing that the EO directs
USPS to violate the settlement agreement. See Pls.’ Mot. to Enforce Compliance, NAACP v.
USPS, No. 1:20-cv-02295-EGS (D.D.C. June 3, 2021), Dkt. No. 171.
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promulgate regulations on voting and the EO’s directive that USPS do so constitutes ultra vires
executive action.
E. Section 5 of the EO
Section 5 requires DOJ and all other executive agencies “with relevant authority” to “take
all lawful steps to deter and address noncompliance with Federal law.” Exec. Order 14399 § 5.
Section 5 also states that “[e]vidence of violations of existing Federal laws by State or local
election officials . . . may be referred to [DOJ] for consideration of investigation or charges
under,” 18 U.S.C. §§ 2(a), 241, 371, 611(a), 1001, 1015, as well as under 52 U.S.C. §§ 10307
and 20511 (the same criminal provisions listed in Sections 1, 2(b), and 3(a) of the EO). Id.
(emphasis added). Finally, Section 5 provides that “States and localities should preserve, for a 5-
year-period, all records and materials–excluding ballots cast–evidencing participation in any
Federal election (e.g., ballot envelopes, regardless of carriers).” Id. (emphasis added).
Plaintiff States argue that Section 5 is unconstitutional because it regulates States’
election record retention processes without authority to do so. Pls.’ Mem. at 19–20 [Doc. No.
106]. Defendants argue that Section 5 merely sets out the President’s view on record retention
policies and that the EO does not establish any “legal consequences” for State and local officials
who decline to retain all election materials for five years. Defs.’ Mem. at 11–12 [Doc. No. 157].
In response, Plaintiff States request the court to “expressly find that [Section 5] does not impose
any requirements on Plaintiff States” if the court agrees with Defendants’ characterization of
Section 5 as strictly precatory. Pls.’ Reply at 27 [Doc. No. 163]. Intervenor States make no
argument regarding Section 5. Intervenors’ Opp’n [Doc. No. 153].
The Civil Rights Act of 1960 establishes record retention rules on election materials. Title
III provides that “[e]very officer of election shall retain and preserve, for a period of twenty-two
months from the date of any [federal] election . . . all records and papers which come into his
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possession relating to any application, registration, payment of poll tax, or other act requisite to
voting in such election,” and makes the failure to do so punishable by up to one year of
imprisonment. 52 U.S.C. § 20701. Title III also provides that “[a]ny record or paper” subject to
that preservation requirement “shall, upon demand in writing by the Attorney General or his
representative directed to the person having custody, possession, or control of such record or
paper, be made available for inspection, reproduction, and copying[.]” Id. § 20703. 18
Congress, pursuant to its Elections Clause power, has set a maximum record retention
period of twenty-two months for election materials. U.S. CONST. art. I, § 4, cl. 1.; 52 U.S.C.
§ 20701. Congress has also expressly provided a role for the Executive Branch, permitting DOJ
to investigate and execute the law by obtaining access to those papers pursuant to a specific
process. 52 U.S.C. § 20703. Nowhere in Title III of the Civil Rights Act, or any other federal
law, does Congress delegate to the President the power to set additional record retention
requirements. Accordingly, the EO’s 5-year record retention statement must be precatory,
because the President lacks any authority to impose such a requirement. Cf. Libertarian Party of
Ind. v. Packard, 741 F.2d 981, 988 (7th Cir. 1984) (Where the government lacks the authority to
“compel [action], it should not be able to coerce.”).
In interpreting the gloss of “should” in other contexts, courts have found that “use of the
terms ‘should’ . . . indicate[s] that the statute is merely precatory.” Monahan v. Dorchester
Counseling Ctr., Inc., 961 F.2d 987, 994–95 (1st Cir. 1992) (analyzing 42 U.S.C. § 10841, titled
the “Restatement of Bill of Rights for Mental Health Patients”). The verb “should” is precatory
rather than mandatory because it “neither requires nor prohibits any action on the part of the
18
It is upon this statutory basis that DOJ has recently claimed authority to demand access to
States’ electronic voter registration lists, a claim routinely dismissed by courts across the country.
See supra Note 6.
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states or any other party.” Id. at 995 (quoting Brooks v. Johnson & Johnson, Inc., 685 F. Supp.
107, 108 (E.D. Pa. 1988)).
Therefore, in light of the President’s lack of constitutional or statutory authority to
impose an election materials record retention requirement, already expressly limited role in the
Civil Rights Act record retention scheme, and a plain-meaning interpretation of the EO’s
language, Section 5 does not and cannot require the States to retain records of all election
materials for five years.
V. Conclusion
The court has previously dismissed without prejudice Plaintiffs States’ amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) on prudential ripeness grounds
with regard to elections occurring after November 3, 2026. Mem. & Order [Doc. No. 190]. For
the foregoing reasons, as to the November 3, 2026 election, and all earlier elections, Defendants’
Motion to Dismiss [Doc. No. 154] pursuant to Federal Rules of Procedure 12(b)(1) and 12(b)(6)
is DENIED and Plaintiffs’ Motion for Summary Judgment [Doc. No. 97] pursuant to Rule 56 is
GRANTED.
Accordingly, it is hereby ORDERED and DECLARED that Sections 2 and 3 of the EO
are legally void as they are ultra vires and unconstitutionally violate the separation of powers,
and that Section 5 of the EO is merely precatory.
In addition, other than the President, Defendants and their officers, agents, servants, and
employees are hereby ENJOINED from implementing or giving effect to Sections 2 and 3 of the
EO with respect to the November 3, 2026 or any earlier federal election in the Plaintiff States as
follows:
a. Defendants United States Department of Justice, Acting Attorney General Todd Blanche,
United States Department of Homeland Security, Secretary Markwayne Mullin, United
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States Citizenship and Immigration Services, Director Joseph B. Edlow, United States
Social Security Administration, Commissioner Frank Bisignano, United States
Department of Commerce, and Secretary Howard Lutnick, including their officers,
agents, servants, and employees, are enjoined from implementing, giving effect to, or
enforcing Section 2 of the EO as to Plaintiff States with respect to the November 3, 2026
or any earlier federal election, including taking any steps to create a new federal program
to superintend and control Plaintiff States’ maintenance of their voter rolls; or initiating
any investigation or prosecution of Plaintiff States, their officials, local officials, or
agents of such state or local officials involved in the administration of federal elections
within Plaintiff States, stemming from the unconstitutional provisions in Section 2 of the
EO. This injunction does not bar the federal government from providing assistance with
verifying the citizenship or eligibility of any voter if the assistance is provided at the
request of any State and within the framework provided by Congress.
b. Defendants United States Department of Justice, Acting Attorney General Todd Blanche,
United States Postal Service, Postmaster General David Steiner, Deputy Postmaster
General Doug Tolino, Chair Amber McReynolds, Vice Chair Derek T. Kan, and Members
Ronald Stroman and Daniel Tangherlini, including their officers, agents, servants, and
employees, are enjoined from implementing, giving effect to, or enforcing Section
3(b)(i)–(v) or (d) of the EO as to elections mail for elections administered by Plaintiff
States and ballot envelopes used by Plaintiff States with respect to the November 3, 2026
or any earlier federal election, including refusing to transmit mail-in or absentee ballots
from voters registered in Plaintiff States to elections officials in Plaintiff States,
regardless of the voters’ location; or otherwise initiating or completing rulemaking to
promulgate the specific regulations outlined in Section 3(b)(i)–(v) or (d) of the EO as to
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elections mail for elections administered by Plaintiff States and ballot envelopes used by
Plaintiff States for the November 3, 2026 election, or any earlier election. This injunction
does not bar the federal government from providing non-binding USPS guidance on
ballot mail envelopes or from providing assistance with verifying citizenship or eligibility
of any voter if the assistance is provided at the request of any Plaintiff State and within
the framework provided by Congress.
c. Defendants United States Department of Justice and Acting Attorney General Todd
Blanche, including their officers, agents, servants, and employees, are enjoined from
initiating any investigation or prosecution of Plaintiff States, their officials, local officials,
or agents of such state or local officials involved in the administration of federal elections
within Plaintiff States, with respect to the November 3, 2026 or any earlier federal
election, stemming from the unconstitutional provisions in Sections 2 and 3 of the EO.
d. Defendants, other than the President, are hereby ORDERED that they must, in good faith,
take such steps as are necessary to prevent explicit or implicit implementation of Sections
2, 3 and 5 of the EO, and to cease and reverse any implementation of those provisions, as
to Plaintiff States, with respect to the November 3, 2026 or any earlier federal election.
Further, Defendants, other than the President, are hereby ORDERED to:
(a) Within seven (7) calendar days of entry of this Order, provide written notice of this
Order to all Defendants and their employees, and to further notify them that Sections 2
and 3 of the EO are unlawful, null, and void and Section 5 is merely precatory, as to
Plaintiff States with respect to the November 3, 2026 or any earlier federal election;
(b) Notify all recipients that they are required to comply with this Order, under penalty of
contempt; and
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(c) Provide counsel for Plaintiff States with a copy of the notice and/or communications
referred to in (a)–(b) on the docket, within seven (7) days of issuance of such notice
and/or communications.
Defendants are hereby ORDERED to file a status report with the court within seven (7)
days of entry of this Order describing steps taken to ensure compliance with it. The court retains
jurisdiction to enforce the injunction and judgment and to award other such relief as may be
appropriate.
Plaintiff States are directed to file a proposed Judgment for entry in this matter within
seven (7) days of entry of this Order.
IT IS SO ORDERED.
June 25, 2026 /s/ Indira Talwani
United States District Judge
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LEAGUE OF WOMEN VOTERS *
OF MASSACHUSETTS, et al., *
*
Plaintiffs, *
*
v. *
*
DONALD J. TRUMP, in his official capacity *
as President of the United States, et al., *
* Civil Action No. 1:26-cv-11549-IT
Defendants, *
*
and *
*
STATE OF MISSOURI, et al., *
*
Intervenor-Defendants. *
______________________________________ *
*
STATE OF CALIFORNIA, et al., *
*
Plaintiffs, *
*
v. *
*
DONALD J. TRUMP, in his official capacity *
as President of the United States, et al., *
* Civil Action No. 1:26-cv-11581-IT
Defendants, *
*
and *
*
STATE OF MISSOURI, et al., *
*
Intervenor-Defendants. *
_____________________________________ *
MEMORANDUM & ORDER
June 18, 2026
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TALWANI, D.J.
Following the publication of President Donald J. Trump’s Executive Order 14399,
Ensuring Citizenship Verification and Integrity in Federal Elections, 91 Fed. Reg. 17125 (Mar.
31, 2026) (the “EO”), two groups of plaintiffs challenged the EO in the United States District
Court for the District of Massachusetts. In the first action, eight non-profit organizations
involved with voter education (collectively, “Plaintiff Organizations”), 1 assert that their U.S.
citizen members will be excluded from voting if the EO is implemented. 2 In the second action,
23 states and the District of Columbia (collectively, “Plaintiff States”), 3 challenge the EO “to
safeguard their constitutional authority to administer state and federal elections.”4 A group of
twelve states 5 moved to intervene in each case, asserting their “concrete interest in receiving the
1
The Plaintiff Organizations are the League of Women Voters of Massachusetts, League of
Women Voters Lotte E. Scharfman Memorial Education Fund, League of Women Voters of the
United States, League of Women Voters Education Fund, Association of Americans Resident
Overseas, U.S. Vote Foundation, OCA-Asian Pacific American Advocates, and Delta Sigma
Theta Sorority.
2
See League of Women Voters of Massachusetts, et al. v. Trump, et al. (“LWVM”), No. 1:26-cv-
11549, Compl. ¶ 1 [Doc. No. 1].
3
The Plaintiff States are Arizona, California, Colorado, Connecticut, Delaware, District of
Columbia, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey,
New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington,
Wisconsin, and Josh Shapiro in his official capacity as Governor of Pennsylvania.
4
State of California, et al. v. Trump, et al. (“California”), No. 1:26-cv-11581, Am. Compl. ¶ 1
[Doc. No. 65].
5
The Intervening States are Alabama, Florida, Indiana, Kansas, Louisiana, Missouri, Montana,
Nebraska, Oklahoma, South Carolina, South Dakota, and Texas.
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resources ordered in [the EO] and in seeing increased security for mail ballots cast in their
elections[,]” 6 and the court has granted permissive intervention in both cases. 7
Defendants, joined by Intervenors, seek dismissal of both suits under Federal Rules of
Civil Procedure 12(b)(1) and (6). 8 The court consolidated the two cases for a hearing on these
and other pending motions. 9
In this consolidated Order, the court addresses Defendants’ and Intervenor States’
ripeness challenge, which raises issues common to both actions, and GRANTS dismissal without
prejudice as to claims regarding the EO and its implementation for elections occurring after
November 3, 2026, otherwise DENIES the ripeness challenge, and reserves on other issues
raised in the motions to dismiss.
I. BACKGROUND
A. The Executive Order
The EO asserts “an unavoidable duty under Article II of the Constitution of the United
States to enforce Federal law, which includes preventing violations of Federal criminal law and
6
California, No. 1:26-cv-11581, Mot. to Intervene 2 [Doc. No. 73]; LWVM, No. 1:26-cv-11549,
Mot. to Intervene 2 [Doc. No. 44].
7
See California, No. 1:26-cv-11581, Elec. Order [Doc. No. 179]; LWVM, No. 1:26-cv-11549,
Elec. Order [Doc. No. 106].
8
See LWVM, No. 1:26-cv-11549, Defs.’ Mot. to Dismiss [Doc. No. 126], Intervenors’ Mot. to
Dismiss [Doc. No. 124]; California, No. 1:26-cv-11581, Defs.’ Mot. to Dismiss [Doc. No. 154],
Intervenors’ Brief [Doc. No. 153] (opposing Plaintiff States’ dispositive motion on ripeness
grounds).
9
See California, No. 1:26-cv-11581, Order [Doc. No. 88]; LWVM, No. 1:26-cv-11549, Order
[Doc. No. 57]. The other motions are Plaintiff Organizations’ motion to preliminarily enjoin
implementation of Section 3 of the EO, see LWVM, No. 1:26-cv-11549, Mot. for Prelim. Inj.
[Doc. No. 73], and Plaintiff States’ motion for summary judgment on their claims, see California,
No. 1:26-cv-11581, Mot. for Summ. J. [Doc. No. 97].
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maintaining public confidence in election outcomes.” Exec. Order 14399 § 1. The EO notes that
several executive agencies maintain records that “can assist in verifying identity and Federal
election voter eligibility” and finds that “additional measures are necessary[]” to “enhance
election integrity via the United States Mail[.]” Id.
Section 2 of the EO directs the Director of the United States Citizenship and Immigration
Services (“USCIS”), a component within the Department of Homeland Security (“DHS”), in
coordination with the Commissioner of the Social Security Administration (“SSA”), “[t]o the
extent feasible and consistent with applicable law,” to compile lists of citizens eligible to vote in
a specific state (the “Confirmed Citizen Lists” 10). Id. § 2(a). The EO provides that the Confirmed
Citizen Lists “shall be derived from Federal citizenship and naturalization records, SSA records,
SAVE [Systematic Alien Verification for Entitlements] data,[11] and other relevant Federal
databases.” Id.; see also id. § 4(c) (the SSA Commissioner must “provide all . . . citizenship and
identity data [necessary]” to compile the Confirmed Citizen Lists for the DHS secretary,
“consistent with applicable law[.]”). 12 The EO defines the Confirmed Citizen Lists as limited to
10
The EO refers to these federally created lists as “State Citizenship Lists.” Id. § 2(a)
11
SAVE is a system administered by DHS that is “designed to help federal, state, tribal, and local
government agencies confirm citizenship and immigration status prior to granting benefits and
licenses, as well as for other lawful purposes.” DHS, Privacy Impact Assessment for the
Systematic Alien Verification for Entitlements Program, DHS Ref. No. DHS/USCIS/PIA-006(c),
at 2 (2020), https://perma.cc/HU2M-NTL8 (2020 PIA). SAVE users “formalize the purpose and
use in which they use SAVE through a Memorandum of Agreement (MOA) or Computer
Matching Agreement” establishing “the terms and conditions for the user agency’s participation
in SAVE.” Id. at 2–3. One purpose for which states can enter into an agreement to use SAVE is
to verify the citizenship of registered voters. Privacy Act of 1974, 5 U.S.C. § 552a; Notice of
Modified System of Records, 90 Fed. Reg. 48948, 48952 (Oct. 31, 2025) (2025 SORN). DHS
does not dispute that the SAVE system has erroneously flagged citizens as noncitizens. See
California, No. 1:26-cv-11581, Pls.’ Statement of Material Facts ¶¶ 15–16 [Doc. No. 105]; Defs.’
Statement of Material Facts ¶¶ 15–16 [Doc. No. 155].
12
Defendants deny that USCIS has made “any final decision about what, if any, information will
be included in any [Confirmed Citizenship Lists] that may ultimately be created,” and contend
that EO § 2(a) “lists ‘SAVE data’ as a potential source of data[.]” See California, No. 1:26-cv-
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“individuals confirmed to be United States citizens who will be above the age of 18 at the time of
an upcoming Federal election and who maintain a residence in the subject State[.]” Id. § 2(a).
The EO requires DHS to “establish the infrastructure necessary to compile, maintain, and
transmit” the Confirmed Citizen Lists by June 29, 2026. Id. § 4(c) (emphasis added). Also by
June 29, 2026, DHS must designate a point of contact regarding List-related inquiries from
individuals and State election officials. Id. The EO requires that DHS update and transmit the
Confirmed Citizen List for each State to State election officials at least 60 days before each
regularly scheduled Federal election, or upon request regarding a special Federal election. Id.
§ 2(a). Accordingly, for the November 3, 2026 general election, the EO requires DHS to provide
the Confirmed Citizen Lists to State election officials by September 4, 2026.
Section 3 of the EO directs the Postmaster General of the United States Postal Service
(“USPS”) to initiate a proposed rulemaking to ensure the integrity of mail voting, see id. § 3(a);
Notice of Proposed Rulemaking, 91 Fed. Reg. 32915 (June 2, 2026), and requires that a final rule
be published by July 29, 2026. The EO requires that the proposed rule (1) include requirements
regarding election mail design; and (2) specify that USPS, after receiving State-furnished lists of
voters approved to vote by mail, shall provide each State with a list of individuals who are
“enrolled with the USPS” pursuant to a process specified in the rule, and shall not transmit the
ballot of any voter unless the individual has been so “enrolled.” Exec. Order 14399 § 3(b). The
EO requires that the proposed rule specify that States may choose to notify USPS of their intent
to use mail ballots no fewer than 90 days prior to a Federal election, and may submit to the
11581, Defs.’ Statement of Material Facts ¶ 15 [Doc. No. 155] (citing Mayhew Decl. ¶¶ 5–10
[Doc. No. 156-1]). As of June 8, 2026, DHS has not confirmed whether or in what capacity
SAVE data will be used. See California, No. 1:26-cv-11581, Defs.’ Notice 2 [Doc. No. 188];
LVWM, No. 1:26-cv-11549, Defs.’ Notice 2 [Doc. No. 164].
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USPS, no fewer than 60 days before the election, a list of voters to whom the State intends to
provide mail ballots. Id. § 3(b)(ii). Accordingly, for the November 3, 2026 general election,
States may notify USPS by August 5, 2026, of their intent to use mail ballots, and by September
4, 2026, of their voter lists. Id.
In Sections 2 and 5, the EO describes several criminal offenses, both directly and
indirectly relating to election fraud, and requires the Attorney General to prioritize the
investigation and prosecution of State and local officials who issue ballots to non-eligible voters.
Id. §§ 2(b), 5. The EO also provides that “[s]tates and localities should preserve, for a 5-year
period, all records and materials – excluding ballots cast – evidencing voter participation in any
Federal election (e.g., ballot envelopes, regardless of carrier).” Id. § 5 (emphasis added).
B. Overview of the Causes of Action in the two Complaints
Plaintiff Organizations assert six counts in their Complaint [Doc. No. 1], with four of
these brought against the President and USPS Defendants. 13 Plaintiff Organizations assert that
Section 3 of the EO violates the Separation of Powers doctrine (Count I), is ultra vires (Count II),
violates principles of Federalism (Count III), and violates their member’s right to vote (Count
IV). LWVM, No. 1:26-cv-11549, Compl. ¶¶ 120–168 [Doc. No. 1]. Plaintiff Organizations also
assert a violation of the Voting Rights Act by the USPS Defendants (Count V), id. ¶¶ 181–184,
13
The USPS Defendants in both cases are the USPS, the Postmaster General, the Deputy
Postmaster General, and the Chairwoman, Vice Chairman, and other members of the USPS
Board of Governors. LWVM, No. 1:26-cv-11549, Compl. ¶¶ 41–48 [Doc. No. 1]; California, No.
1:26-cv-11581, Am. Compl. ¶¶ 47–54 [Doc. No. 65].
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and violations of the Privacy Act and Administrative Procedure Act by DHS Defendants 14 and
SSA Defendants 15 (Count VI), id. ¶¶ 185–205.
Plaintiff States bring three counts in their Amended Complaint. Plaintiff States assert that
Section 2 of the EO is unconstitutional, bringing a claim against the President, the Department of
Justice (“DOJ”), and the acting Attorney General, 16 the DHS Defendants, the SSA Defendants,
and the Department of Commerce (“DOC”) Defendants. 17 California, No. 1:26-cv-11581, Am.
Compl. ¶¶ 150–166 [Doc. No. 65]. Against the President, acting Attorney General, and USPS
Defendants, Plaintiff States assert that Section 3 of the EO is unconstitutional. Id. ¶¶ 167–178.
Finally, Plaintiff States allege, against the President, Department of Justice, and acting Attorney
General, that Section 5 is unconstitutional. Id. ¶¶ 179–189.
II. PRUDENTIAL RIPENESS
Defendants maintain that the EO is merely an “intra-Executive Branch directive” that
directs future agency action and that “of its own force[] does not change anything at all about
elections in any State.” 18 They assert that judicial review will be appropriate later, after
implementation actions have been taken, because Defendant agencies are still considering and
14
The DHS Defendants in both cases are DHS, the Secretary of DHS, USCIS, and the Director
of USCIS. LWVM, No. 1:26-cv-11549, Compl. ¶¶ 50–51, 54–55 [Doc. No. 1]; California, No.
1:26-cv-11581, Am. Compl. ¶¶ 41–44 [Doc. No. 65].
15
The SSA Defendants in both cases are SSA and the Commissioner of SSA. LWVM, No. 1:26-
cv-11549, Compl ¶¶ 52–53 [Doc. No. 1]; California, No. 1:26-cv-11549, Am. Compl. ¶¶ 52-53
[Doc. No. 65].
16
California, No. 1:26-cv-11581, Am. Compl. ¶¶ 39–40 [Doc. No. 65].
17
The DOC Defendants are DOC and the Commerce Secretary. California, No. 1:26-cv-11581,
Am. Compl. ¶¶ 55–56 [Doc. No. 65].
18
California, No. 1:26-cv-11581, Defs.’ Mem. 8 [Doc. No. 157]; LWVM, No. 1:26-cv-11549,
Defs.’ Mem. 8 [Doc. No. 128].
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deliberating future action. 19 They argue further that no active case or controversy will exist until
the agencies implement the EO, particularly given the EO’s saving clause and express limitations
that agencies shall only act pursuant to their legal authority. California, No. 1:26-cv-11581,
Defs.’ Mem. 12–16 [Doc. No. 157]. Similarly, Intervenor States argue that “[t]he prudential
ripeness doctrine . . . strongly counsels against considering Plaintiffs’ constitutional arguments
before final agency actions exist.” LWVM, No. 1:26-cv-11549, Intervenors’ Mem. 1 [Doc. No.
125].
Plaintiffs assert that their claims are ripe for judicial review because the 2026 federal
elections are imminent and the EO has caused significant uncertainty and confusion regarding
planning. Plaintiff States have asserted, and Defendants do not dispute, that preparation for the
election is currently underway. See California, No. 1:26-cv-11581, Pls.’ Statement of Material
Facts ¶ 8 [Doc. No. 105]; id., Defs.’ Statement of Material Facts ¶ 8 [Doc. No. 155]. Plaintiff
States have further asserted that their election officials fear criminal prosecution if they issue
ballots to voters who are not on the Confirmed Citizen List or if they issue ballots to eligible 17-
year-old voters in connection with federal primary elections. See id. Pls.’ Statement of Material
19
California, No. 1:26-cv-11581, Defs.’ Mem. 9 [Doc. No. 157] (citing Monteith Decl. ¶ 3 [Doc.
No. 156-3]; Mayhew Decl. ¶ 5 [Doc. No. 156-1]; MacBride Decl. ¶ 5 [Doc. No. 156-2]);
LWVM, No. 1:26-cv-11549, Defs.’ Mem. 9 [Doc. No. 128] (citing Monteith Decl. ¶ 3 [Doc. No.
127-3]; Mayhew Decl. ¶ 5 [Doc. No. 127-1]; MacBride Decl. ¶ 5 [Doc. No. 127-2]). But see
California, No. 1:26-cv-11581, Defs.’ Notice [Doc. No. 188-1] (On June 8, 2026, DHS Secretary
approved a “technological approach” toward implementing the infrastructure, where “USCIS, in
coordination with SSA and [the Department of State (‘DOS’)], would deliver by June 30, 2026, a
mechanism for State use that provides . . . access to citizenship-related information from each
agency[,]” “endors[ed] a phase plan under which citizen-facing portal capabilities would be
developed and implemented later in 2026[,]” and approved DHS “continu[ing] preliminary
conversations with USPS concerning potential data-sharing arrangements[.]”); LWVM, No.
1:26-cv-11549, Defs.’ Notice [Doc. No. 164-1].
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Facts ¶¶ 36–37 [Doc. No. 105]. 20 Similarly, Plaintiff Organizations have alleged that they are
currently wrestling with the impact of the EO on their members and on their voter education
programming. See, e.g., LWVM, No. 1:26-cv-11549, Canavan Decl. ¶ 28 [Doc. No. 75-2]
(“LWVMA has stopped actively disseminating any new voter-education materials about mail
voting because of [the EO].”). All Plaintiffs assert substantial confusion regarding the EO’s
impact on the 2026 elections and on elections in general. See California, No. 1:26-cv-11581,
Pls.’ Statement of Material Facts ¶¶ 37, 39 [Doc. No. 105]; LWVM, No. 1:26-cv-11549, Pls.’
Mem. 22 [Doc. No. 74].
A. Relevant Law
“Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance
of premature adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way by the
challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003)
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967)). “[T]he question of ripeness
turns on ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of
withholding court consideration.’” Pac. Gas & Elec. Co. v. State Energy Res. Conservation &
Dev. Comm’n, 461 U.S. 190, 201 (1983) (quoting Abbott Labs., 387 U.S. at 149). As to the
20
Defendants contend that Plaintiff States’ assertions “assume[] without basis that it is ‘feasible’
and ‘consistent with applicable law’ to compile and transmit a [Confirmed Citizen List] and
further assume[] without basis that states will be required to use any such list.” California, No.
1:26-cv-11581, Defs.’ Statement of Material Facts ¶¶ 36–37 [Doc. No. 155]. Defendants further
deny that failure to comply with the EO in and of itself is a criminal offense. See California, No.
1:26-cv-11581, Defs.’ Reply 24 [Doc. No. 167] (“[Plaintiff States’] assertion that the Order
imposes both duties, under the threat of criminal prosecution no less, is without basis in the text
of the Order.”); LVWM, No. 1:26-cv-11549, Defs.’ Reply 24 [Doc. No. 147]. Defendants do not
address election officials’ fear of such prosecution.
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former, “[a] claim is not ripe for adjudication if it rests upon ‘contingent future events that may
not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S. 296,
299 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–01 (1985)).
The fitness for review prong is more easily satisfied when it “presents an issue that is ‘purely
legal, and will not be clarified by further factual development.’” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 167 (2014) (quoting Thomas, 473 U.S. at 581). On the second prong, “it
is necessary to evaluate the extent to which withholding judgment will impose hardship—an
inquiry that typically ‘turns upon whether the challenged action creates a ‘direct and immediate’
dilemma for the parties.” Stern v. U.S. Dist. Court for Dist. of Mass., 214 F.3d 4, 10 (1st Cir.
2000) (internal citations omitted). Hardship to the plaintiffs may be “easily satisfied” where the
challenged actions “forc[es] them to choose between [constitutionally protected activity] on the
one hand, or engaging in [that activity] and risking costly . . . proceedings and criminal
prosecution on the other.” Susan B. Anthony List, 573 U.S. at 167–68. “Both prongs of the test
ordinarily must be satisfied, although a very strong showing on one axis may compensate for a
relatively weak showing on the other.” Stern, 214 F.3d at 10.
B. Analysis
1. Future Elections (after the November 3, 2026 Midterm Election)
There are clearly many uncertainties as to how the agencies will ultimately implement the
EO, including the source and accuracy of DHS’ Confirmed Citizen Lists, and what final rule, if
any, will be adopted by the USPS. The implementation of the EO may well result in the evolving
and dynamic process described by Defendants, in which Plaintiffs may participate in a comment
period that could result in their concerns being incorporated in agency decision making. See
California, No. 1:26-cv-11581, Defs.’ Mem. 18–19 [Doc. No. 157]; see also DSCC v. Trump, __
F.Supp.3 ___, 2026 WL 1487833, *1 (D.D.C. May 28, 2026) (“[T]he issuance of a notice of
10
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proposed rulemaking, or other preliminary proceedings undertaken to promote a proposed rule,
often will not be ripe for review because the rule may or may not be adopted or enforced.’”
(quoting Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 710 F.2d 842, 846 (D.C.
Cir. 1983))). And where some issues may be addressed in part or narrowed well before more
distant elections, withholding court consideration of the EO as it relates to distant elections will
pose little hardship where there will be sufficient time for legal challenges to the EO after
implementation.
Accordingly, the challenge to the EO’s implementation as it impacts elections after the
November 3, 2026 election is dismissed without prejudice on prudential ripeness grounds.
2. The November 3, 2026 Midterm Election (and Earlier Elections)
Plaintiffs’ challenge to the EO as it impacts the November 3, 2026 election itself and the
multiple primaries and special elections that are scheduled to occur prior to that date, however, is
different. The November 3, 2026 election will occur in less than five months and the EO
explicitly requires that certain actions be taken before then. See Exec. Order 14399 § 3(b)
(requiring that USPS issue a Notice of Proposed Rule Making regarding new election integrity
requirements within 60 days of the EO–i.e., by May 31, 2026); id. § 4(c) (requiring DHS to
establish the infrastructure necessary to compile Confirmed Citizen Lists within 90 days of the
EO–i.e., by June 29, 2026); id. § 3(d) (requiring that USPS issue a final rule no later than 120
days from the date of the EO–i.e., by July 29, 2026); id. § 3(b)(ii) (requiring the Notice of
Proposed Rulemaking to include provisions specifying that 90 days prior to a federal election–
i.e., by August 5, 2026, for the November 3, 2026 election, a State may choose to notify the
USPS if it intends to allow ballots to be transmitted by the USPS, and advising the States to
notify the USPS if the State intends to allow Mail Ballots and to submit a list of voters to whom
ballots will be sent by sixty days before a federal election–i.e., by September 4, 2026, for the
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November 3, 2026); id. § 2(a) (requiring DHS, in coordination with SSA, to compile and
transmit to State officials, to the extent feasible and consistent with applicable law, including the
Privacy Act, Confirmed Citizen Lists to the States no later than 60 days before each regularly
scheduled Federal election–i.e., by September 4, 2026, for the November 3, 2026 election).
In light of the EO’s specific deadlines over the next three months, and the reality that
elections will be occurring throughout this period with the November 3, 2026 midterm occurring
in just five months, postponing judicial review is impracticable and may inflict significant
hardship on Plaintiffs. The EO has “create[d] a ‘direct and immediate’ dilemma for” Plaintiffs,
Stern, 214 F.3d at 10 (quoting W.R. Grace & Co. v. EPA, 959 F.2d 360, 364 (1st Cir. 1992)),
because the EO requires State elections officials and voters to reckon today with both the
likelihood that the executive branch agencies will follow the EO’s multiple directed actions and
simultaneously with the uncertainty that exists as the details are slowly rolled out over the next
few months. Both sets of Plaintiffs have offered unrebutted evidentiary support for their
allegations that significant preparation and planning underpin and facilitate elections and that
such efforts are already underway. See California, No. 1:26-cv-11581, Rosenberg Decl. ¶ 26
[Doc. No. 100-7] (Connecticut election official explaining that “major changes to the election
process . . . are typically planned for a year or more preceding an election[.]”); Linnell Decl. ¶ 11
[Doc. No. 100-14] (“Preparation for the 2026 midterm elections already consumes all of
[Minnesota election official’s] team’s time.”); LVWM, No. 1:26-cv-11549, Canavan Decl. ¶¶ 28–
29 [Doc. No. 75-2] (describing presently ongoing voter education efforts of LVWM); Nguyen
Decl. ¶¶ 15–21 [Doc. No. 75-7] (describing efforts to translate election materials into other
languages by Plaintiff Organization OCA-Asian Pacific American Advocates).
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For example, Plaintiff State of California mails every registered voter a ballot, as required
by state law. See California, No. 1:26-cv-11581, Lean Decl. ¶¶ 28, 37 [Doc. No. 100-1]; Cal.
Elec. Code § 3000.5 (“[F]or each election, the elections official shall, no later than 29 days
before the day of the election, begin mailing [ballots and return mail] to every registered voter.”).
Even without a USPS Final Rule on mail ballot procedures, California election officials “must
prepare now for how to align California’s administration of mail voting with the EO.” California,
No. 1:26-cv-11581, Lean Decl. ¶ 40 [Doc. No. 100-1]. The Plaintiff States cannot wait for the
Final Rule where the practical realities of running an election require Plaintiffs to take actions for
the upcoming election now. See Abbott Labs., 387 U.S. at 149 (in analyzing ripeness, courts
must assess the hardship that would result from delaying review); see also LWVM, No. 1:26-cv-
11549, Amicus Br. of. State and Loc. Elections Offs. 12 [Doc. No. 136] (explaining that “[A]s a
purely practical matter, implementing this EO—particularly with so little time remaining before
the rapidly approaching November 2026 midterm elections—would wreak havoc on electoral
processes nationwide.”).
The compilation of a Confirmed Citizen List also vividly illustrates the problem. During
the June 2, 2026 hearing, the government admitted that compliance with federal privacy law
would necessarily render any Confirmed Citizen List underinclusive. 21 Moreover, the list will
also be underinclusive as a result of feasibility issues, where the federal government may be
unaware of name changes (such as when a woman changes her name at marriage) or residence
changes (where a citizen moves from state to state). But the EO does not require feasibility of an
accurate, complete list of United States citizens. Instead, it orders preparation and delivery to the
21
See California, No. 1:26-cv-11581, June 2, 2026 H’rg Tr. 24:6–17 [Doc. No. 181]; LVWM,
No. 1:26-cv-11549, June 2, 2026 H’rg Tr. 24:6–17 [Doc. No. 155].
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states of a list of individuals confirmed as citizens “to the extent feasible and consistent with
applicable law”—in other words, the EO orders preparation and delivery of a list of United
States citizens residing in each state that will necessarily be incomplete. Exec. Order 14399
§ 2(a). Accordingly, even assuming that implementing agencies will comply with all legal
requirements set out in the EO and will only create lists to the extent feasible, incomplete
Confirmed Citizen Lists will still be compiled, thereby creating a “direct and immediate dilemma
for Plaintiffs.” Stern, 214 F.3d at 10 (citation omitted).
Further, despite Defendants’ assertions that agencies are merely “deliberating” as to plans
to implement the EO, Defendants have recently updated the court that, on June 8, 2026, the DHS
Secretary approved a plan to comply with § 4(a) of the EO, requiring that DHS implement
necessary infrastructure by June 29, 2026. 22
With an ever-narrowing window of time in which review is appropriate and practicable,
and where that review may well require timely involvement by the Court of Appeals or Supreme
Court prior to the November 3, 2026 election in order to “maintain[] public confidence in
election outcomes[,]” see Exec. Order 14399 § 1, the court finds that the legality of the EO as to
the November 3, 2026 election (and earlier elections) is both ripe and fit for review. See Abbott
Labs., 387 U.S. at 149.
22
See California, No. 1:26-cv-11581, Defs.’ Notice [Doc. No. 188]; LWVM, No. 1:26-cv-11549,
Defs.’ Notice [Doc. No. 164]; see also id., Pls.’ Sur-Reply 1 [Doc. No. 160] (Defendants’ Notice
“demonstrate[s] that agency implementation of the [EO’s] directives is underway [and] that
agency action follows directly from the [EO].”). Defendants’ Notice also indicated that DHS and
USPS are continuing to consider data-sharing across agencies, including with the USPS, in
implementing the EO. California, No. 1:26-cv-11581, Defs.’ Notice [Doc. No. 188] (On June 8,
2026, DHS Secretary authorized “DHS [to] continue preliminary conversations with USPS
concerning potential data-sharing arrangements,” but stating further that “allow[ing] DHS to
leverage USPS data related to mail-in and absentee ballot participation lists . . . is neither
contemplated nor required by EO 14399.”); LWVM, No. 1:26-cv-11549, Defs.’ Notice [Doc. No.
164].
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Defendants and Intervenor States’ reliance on a recent Supreme Court decision merits
additional discussion. In Trump v. New York, a coalition of States and non-profit organizations
challenged a Presidential memorandum announcing a policy of excluding noncitizens from the
decennial census for the purposes of congressional apportionment and then directing the
Secretary of Commerce to advise the President on how to implement that policy “to the
maximum extent feasible and consistent with the discretion delegated to the executive branch.”
592 U.S. 125, 129–30 (2020) (quoting 85 Fed. Reg. 44680 (2020)). The impact of any
apportionment policy change would not be experienced until the States first received an
apportionment report from Congress and then subsequently both implemented redistricting and
held elections, potentially years after the Commerce Secretary’s report pursuant 13 U.S.C.
§ 141(b). See 2 U.S.C. § 2a. The Supreme Court found that the plaintiffs lacked standing to
challenge the memorandum and that the challenge was not ripe because the “case [was] riddled
with contingencies and speculation that impede judicial review. . . . Any prediction how the
Executive Branch might eventually implement this general statement of policy is ‘no more than
conjecture’ at this time.” Trump, 592 U.S. at 131 (quoting Los Angeles v. Lyons, 461 U.S. 95,
108 (1983)). The Court based its decision on the uncertainty regarding implementation of the
memorandum and the President’s qualifying language regarding feasibility and legality
requirements. Id. 23
23
Defendants also point to Justice Sotomayor’s concurrence in Trump v. Am. Fed’n of Gov’t
Emps., 606 U.S. _, 145 S.Ct. 2635 (2025). In a two-paragraph unsigned opinion, the Supreme
Court granted an application for a stay of a district court’s preliminary injunction order while the
Ninth Circuit considered the government’s appeal. The Court granted the stay “because the
Government is likely to succeed on its [merits] argument,” without making any findings as to
justiciability. Id. In her concurrence in the grant of the stay, Justice Sotomayor noted that the
Executive Order “direct[ed] agencies to plan reorganizations and reductions in force ‘consistent
with applicable law[,’ and t]he plans themselves are not before this Court, at this stage, and [the
Court] thus ha[s] no occasion to consider whether they can and will be carried out consistent
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Unlike the President’s request for the Commerce Secretary to implement a policy
statement in Trump v. New York, the EO here both includes multiple specific directives as to
certain actions that federal agencies must take at specified times and requires that definite
“substantive outcomes” be implemented that will affect the upcoming election. League of United
Latin American Citizens (“LULAC”) v. Executive Office of the President (LULAC II), 818 F.
Supp. 3d 34, 78 (D.D.C. 2026) (citing Trump v. New York, 592 U.S. 125 (2020)). And, unlike in
Trump v. New York, it is neither speculation nor “conjecture” that DHS will compile Confirmed
Citizen Lists where directed to compile those lists by the President, that States will have to
grapple with preparing for mail ballots for the November 3, 2026 election, while USPS is
simultaneously engaged in rulemaking, and that elections officials will have to respond to the
impact of both the Confirmed Citizen Lists and to whatever USPS rule may be enacted before
the November 3, 2026 election.
Where Plaintiffs have raised constitutional challenges that may be addressed without
further development of the Confirmed Citizen Lists or the Proposed Rule and in light of
imminently impending elections, prudential considerations do not warrant deferring
consideration of Plaintiffs’ challenges with respect to the 2026 elections. See Wesberry v.
Sanders, 376 U.S. 1, 17 (1964) (“No right is more precious in a free country than that of having a
voice in the election of those who make the laws under which, as good citizens, we must live.
Other rights, even the most basic, are illusory if the right to vote is undermined.”).
with the constraints of law.” Id. (Sotomayor, J., concurring). Here, in contrast, the limitation that
the Confirmed Citizen List will be created “to the extent feasible and consistent with applicable
law,” does not mean a list will not be created, but only that it will by definition be incomplete.
Exec. Order 14399 § 2(a).
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III. CONCLUSION
For all of the above reasons, the court GRANTS Defendants’ and Intervenor States’
motions to dismiss Plaintiff Organizations’ complaint and Plaintiff States’ amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) on prudential ripeness grounds as to their
claims regarding the EO and its implementation with regard to elections occurring after
November 3, 2026, and dismisses such claims without prejudice. The court DENIES Defendants’
and Intervenor States’ motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
on prudential ripeness grounds as to Plaintiff Organizations’ complaint and Plaintiff States’
amended complaint with regard to the November 3, 2026 election, and all earlier elections. 24
IT IS SO ORDERED.
June 18, 2026 /s/ Indira Talwani
United States District Judge
24
Defendants’ and Defendant Intervenors’ Article III challenges pose different issues as to the
two different groups of Plaintiffs. These challenges will be addressed in case specific orders,
together with the Plaintiffs’ pending motion in each case.
17