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Amicus brief of bipartisan current and former members of Congress
Published by Bipartisan current and former members of Congress on September 8, 2026.
Passages cited in the stories above
… The Order’s preamble refers to both HAVA and the NVRA to justify its assertion of authority. But far from justifying the Order or the Final Rule, those statutes only confirm their unlawfulness. Begin with HAVA. In that statute, Congress directed States to create a database of registered voters and identified standards for applicants to verify their identity upon registration. See 52 U.S.C. § 21083(a)(1), (5). HAVA thus assigns voter-roll maintenance to the States, not the Executive Branch, requiring “each State” to “implement” and “maintain[]” its own centralized voter-registration list, see 52 U.S.C. § 21083(a)(1)–(2), and expressly reserving to the States discretion over methods of implementation and compliance, id. § 21085. HAVA does not delegate any authority to USPS to require States to transmit voter-eligibility lists to the federal government as a precondition for mail balloting. The Final Rule is also in tension with provisions of the NVRA. The NVRA directs state agencies to handle the “registration of voters in elections for Federal office,” as well …
… Rule. The Guarantee Clause, which the Order invokes, confers authority on Congress rather than the Executive, and the Take Care Clause imposes on the Executive a duty rather than an affirmative grant of authority. Applicants seek to sidestep these principles by emphasizing that the Final Rule issued from USPS rather than from the President. That argument is unconvincing for two reasons. First, USPS issued the Rule only after directed to do so by the President. See Order § 3(b), (d). The Order and the Final Rule must be read together. USPS itself acknowledges that the Order began the deliberative process that yielded the Rule. 91 Fed. Reg. at 54977. The Order remains relevant as the source and the stated justification of the Rule’s requirements. Second, Congress did not delegate its authority over federal elections to USPS through a general statute that nowhere mentions elections. Cf. 39 …
… not voter-eligibility determinations), id. § 102(5); barred USPS from making “unreasonable” distinctions among mail users, id. § 403(c); and required that any proposed nationwide change to postal services be submitted to the Postal Regulatory Commission for a 90-day advisory opinion before any rule may issue, id. § 3661(b); 39 C.F.R. §§ 3020.110–3020.112. The Final Rule overrides each of these constraints. The Final Rule attempts to impose a nationwide mail ballot administration program that puts USPS in charge of lists of voters enrolled to vote by mail, and gives USPS the authority to reject and return ballots associated with voters not appearing on its lists—even if the voter is eligible and registered to vote. These are functions for which Congress has granted USPS no authority. Here again, the Final Rule reveals an Executive acting alone, without any statutory basis. *** The integrity of our constitutional system depends on each branch keeping to its assigned role. The Framers set up a two-part system that gave States default authority 21 …
… And Madison, urging the House not to delay the amendments already agreed upon, concluded that he was “inclined to think the constitution stands very well as it is.” Id. at 798. No Member suggested that the Executive had, or should have, any role in regulating federal elections. Subsequent practice further confirms that the Executive Branch lacks the unilateral authority to regulate the manner of federal elections. Cf. Noel Canning, 573 U.S. at 525. For two centuries, every federal regulation relating to federal elections has originated with Congress, confirming that when Congress seeks to regulate elections, it does so explicitly. Congress’s first substantive exercise of its Elections Clause authority came with the Apportionment Act of 1842, which required that Representatives be elected from single-member districts. See Act of June 25, 1842, ch. 47, § 2, 5 Stat. 491, 491. Congress followed that effort with subsequent Apportionment and Reapportionment Acts—in 1872, 1901, 1911, 1929, 1941, and 1967. See Act of Feb. 2, 1872, …
… mail in federal elections. 52 U.S.C. § 20302. President Clinton signed the NVRA, which mandates that every State accept a federal form from voters who register by mail for federal elections. Id. § 20505. President George W. Bush signed HAVA, requiring that first-time voters who register by mail show identification when they register or vote. Id. § 21083(b). And President Obama signed the Military and Overseas Empowerment Act, which amended UOCAVA and mandated that States give absentee ballots to covered voters at least 45 days before a federal election. Id. § 20302(a)(8). In each of these statutes, Congress overrode state prerogatives only through narrow, targeted commands. As amici can personally attest, each of these statutes passed both chambers with bipartisan majorities. HAVA, for example, was adopted by the House 357-to-48 and the Senate 92-to-2 with sweeping bipartisan majorities. H.R. 3295, Record Vote No. 462, 18 …
… § 21083(b). And President Obama signed the Military and Overseas Empowerment Act, which amended UOCAVA and mandated that States give absentee ballots to covered voters at least 45 days before a federal election. Id. § 20302(a)(8). In each of these statutes, Congress overrode state prerogatives only through narrow, targeted commands. As amici can personally attest, each of these statutes passed both chambers with bipartisan majorities. HAVA, for example, was adopted by the House 357-to-48 and the Senate 92-to-2 with sweeping bipartisan majorities. H.R. 3295, Record Vote No. 462, 18 107th Cong. (Oct. 10, 2002); H.R. 3295, Record Vote No. 238, 107th Cong. (Oct. 16, 2002). UOCAVA likewise cleared both the House and the Senate by voice vote, without recorded opposition. 132 Cong. Rec. 20979 (1986) (House); id. at 21894–95 (Senate). And …
… Pursuant to Rule 37.6, counsel for amici curiae state that no counsel for a party authored this brief in whole or in part, and no person or entity other than amici or their counsel has made a monetary contribution to the preparation or submission of this brief. the Final Rule unconstitutionally bars non-compliant State and local election officials from using USPS to mail ballots at all. First, the Executive Branch’s directives to regulate mail-in and absentee ballots are unconstitutional because they encroach on the States’ primary and Congress’s paramount authority under the Constitution’s Elections Clause. U.S. Const. art. I, § 4, cl. 1. The text and history of the Elections Clause categorically bar the Executive Branch from asserting unilateral authority over federal-election administration. And because the Order and Final Rule purport to involve USPS in States’ administration of mail-in voting, the Order also intrudes on the Postal Clause, a second grant of legislative power that Article I commits to Congress with no mention of any role for the Executive. No …
… assigned role. The Framers set up a two-part system that gave States default authority 21 to regulate federal elections subject to Congress’s authority to override the States. The Framers did not provide the President with any authority to interfere in that system, nor has Congress imbued the Executive Branch with any such authority by statute. Because the Final Rule ignores those limits on executive authority, the district court correctly enjoined the Final Rule’s mandatory implementation. CONCLUSION For the foregoing reasons, the Court should deny emergency relief. Respectfully submitted, /s/ Jessica Ring Amunson Jessica Ring Amunson Counsel of Record …
… federal elections are products of the same legislative process. See, e.g., Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 52 U.S.C. § 10301 et seq.); UOCAVA, Pub. L. No. 99-410, 100 Stat. 924 (1986) (codified as amended at 52 U.S.C. § 20301 et seq.); NVRA, Pub. L. No. 103-31, 107 Stat. 77 (1993) (codified as amended at 52 U.S.C. § 20501 et seq.); HAVA, Pub. L. No. 107-252, 116 Stat. 1666 (2002) (codified at 52 U.S.C. § 20901 et seq.). Across more than 200 years, the President has never acted unilaterally to regulate the manner of federal elections, and Congress has never implicitly delegated the power to displace state regulations. These facts alone provide a powerful reason to hold the Order and Final Rule unconstitutional. C. The Order and Final Rule Also Violate the Postal Clause. The Postal Clause also forecloses the Executive Branch from enlisting USPS to implement a comprehensive program to monitor and screen mail ballots. The Final Rule’s assertion of authority reaches a subject that Article I assigns to Congress: the power …
… significance under our constitutional structure,” Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Yet here the Final Rule cannot be justified under any congressional statute, and in fact violates several statutes with respect to federal voting requirements. Over the years, Congress has worked on a bipartisan basis with Presidents of both parties to address various federal election issues. President Reagan signed UOCAVA, which requires the States to allow military and overseas voters to register and vote by mail in federal elections. 52 U.S.C. § 20302. President Clinton signed the NVRA, which mandates that every State accept a federal form from voters who register by mail for federal elections. Id. § 20505. President George W. Bush signed HAVA, requiring that first-time voters who register by mail show identification when they register or vote. Id. § 21083(b). And President Obama signed the Military and Overseas Empowerment Act, …
… rather than the Executive, and the Take Care Clause imposes on the Executive a duty rather than an affirmative grant of authority. Applicants seek to sidestep these principles by emphasizing that the Final Rule issued from USPS rather than from the President. That argument is unconvincing for two reasons. First, USPS issued the Rule only after directed to do so by the President. See Order § 3(b), (d). The Order and the Final Rule must be read together. USPS itself acknowledges that the Order began the deliberative process that yielded the Rule. 91 Fed. Reg. at 54977. The Order remains relevant as the source and the stated justification of the Rule’s requirements. Second, Congress did not delegate its authority over federal elections to USPS through a general statute that nowhere mentions elections. Cf. 39 U.S.C. § 401(2). Both standard principles of statutory interpretation and history confirm that when Congress displaces state electoral regulations, it must—and does—do so …
… to regulate federal elections subject to Congress’s authority to override the States. The Framers did not provide the President with any authority to interfere in that system, nor has Congress imbued the Executive Branch with any such authority by statute. Because the Final Rule ignores those limits on executive authority, the district court correctly enjoined the Final Rule’s mandatory implementation. CONCLUSION For the foregoing reasons, the Court should deny emergency relief. Respectfully submitted, /s/ Jessica Ring Amunson Jessica Ring Amunson Counsel of Record Sam Hirsch Zachary C. Schauf …
… which amended UOCAVA and mandated that States give absentee ballots to covered voters at least 45 days before a federal election. Id. § 20302(a)(8). In each of these statutes, Congress overrode state prerogatives only through narrow, targeted commands. As amici can personally attest, each of these statutes passed both chambers with bipartisan majorities. HAVA, for example, was adopted by the House 357-to-48 and the Senate 92-to-2 with sweeping bipartisan majorities. H.R. 3295, Record Vote No. 462, 18 107th Cong. (Oct. 10, 2002); H.R. 3295, Record Vote No. 238, 107th Cong. (Oct. 16, 2002). UOCAVA likewise cleared both the House and the Senate by voice vote, without recorded opposition. 132 Cong. Rec. 20979 (1986) (House); id. at 21894–95 (Senate). And each was signed by a President in cooperation with congressional leaders of both parties. …
… The Federalist No. 59 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) ....................10, 11 2 Records of the Federal Convention of 1787 (Max Farrand ed., 1911) ..................................................................................................................9, 10, 11, 12 v STATEMENT OF INTEREST OF AMICI CURIAE1 Amici curiae are current and former Members of the United States Senate and House of Representatives who are members of both the Democratic and Republican parties. See Appendix (listing amici). Amici submit this brief to offer their unique perspective on why Executive Order 14399, Ensuring Citizenship Verification and Integrity in Federal Elections, 91 Fed. Reg. 17,125 (Mar. 31, 2026) (the “Order”), and the United States Postal Service (“USPS”) final rule, Ballot Mail for Federal Elections, 91 Fed. Reg. 54966 (Aug. 26, 2026) (the “Final Rule”), unconstitutionally and unlawfully …
… 1911) ..................................................................................................................9, 10, 11, 12 v STATEMENT OF INTEREST OF AMICI CURIAE1 Amici curiae are current and former Members of the United States Senate and House of Representatives who are members of both the Democratic and Republican parties. See Appendix (listing amici). Amici submit this brief to offer their unique perspective on why Executive Order 14399, Ensuring Citizenship Verification and Integrity in Federal Elections, 91 Fed. Reg. 17,125 (Mar. 31, 2026) (the “Order”), and the United States Postal Service (“USPS”) final rule, Ballot Mail for Federal Elections, 91 Fed. Reg. 54966 (Aug. 26, 2026) (the “Final Rule”), unconstitutionally and unlawfully usurp for the Executive Branch the authority over federal elections that the Framers granted exclusively to the States and to Congress. As current and former legislators, amici took an oath to uphold and defend the Constitution of the United States—including its guarantee of the separation of powers. Amici have a particular interest in defending the institutional role of the Legislative Branch under Article I of the Constitution and in vindicating the long-settled principle that the Constitution commits ultimate regulatory authority over federal elections to …
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