Record · the original document behind a story
Opposition to the 26A297 administrative stay
Published by State of California on September 3, 2026.
Passages cited in the stories above
… is no sensible reason for the Court to grant an administrative stay when any appellate proceedings concerning the TRO will so soon be moot. 1. As discussed, the Rule requires States to upload information about every qualified mail voter to USPS’ as-yet-unreleased online Portal, and USPS will refuse to deliver ballot envelopes containing information that does not match the data in the Portal. See supra p. 1. The Rule also requires States to redesign their ballot envelopes and secure USPS’ approval for those new designs before they can send out a single mail ballot. See 91 Fed. Reg. at 54990- 54991, Rule § 24.3. And the Rule forbids uploading voter data to the Portal until USPS review and certification of ballot envelopes “is complete.” See 91 Fed. Reg. at 54979. Complying with these demands would be difficult under the best of circumstances. But USPS has made it “practically impossible as to the 2026 midterm elections.” App’x 10a. The agency published the Rule on …
… That preliminary injunction motion was heard this morning, and the TRO will be dissolved as soon as the district court issues its decision—which the 2 court indicated will likely be as soon as this evening or tomorrow. 1 The First Circuit has before it a motion for a stay of the TRO pending appeal on which highly expedited briefing is already complete. Meanwhile, USPS submitted a declaration to the district court today explaining that the Portal is not yet functional and will not be available until, at the earliest, “sometime next week.” D. Ct. Dkt. 150-1 ¶ 3. 2 In seeking a stay of the TRO from the First Circuit, Applicants did not request relief by any date certain—quite possibly because they knew the Portal is not yet functional, meaning no State is currently in a position to comply with the Rule even if it took effect. ARGUMENT An administrative stay is not warranted. Applicants cannot show …
… next week.” D. Ct. Dkt. 150-1 ¶ 3. And a recent disclosure from a USPS official familiar with the agency’s “sloppy and rushed” development process explained that there is an extreme risk of error due to “slapdash software development,” D. Ct. Dkt. 115 at 13, 15; “insufficient internal testing,” id. at 16; and “‘siloed’ . . . teams of developers . . . working independently without any effort towards interoperability,” id. at 17. USPS also plans to use a “batch” verification protocol—called a “zero-percent failure policy,” id. at 19—whereby thousands or tens of thousands of ballots will be processed simultaneously, and “if even one bar code on one single ballot . . . fails to properly scan,” “the entire batch is rejected and sent back to the state,” id. at 10-11. Scanning failures “are predictable—and likely,” in light of many “scanning problems” recently experienced by USPS. Id. at 20. While USPS submitted a declaration to the district court today with updates on the status of its Portal, see D. Ct. Dkt. 150- …
… Ian.Fein@doj.ca.gov September 3, 2026 *Counsel of Record 1 Respondents intend to oppose Applicants’ request for a stay pending appeal by 10 a.m. EDT on September 8, 2026, as directed by Justice Jackson, including by explaining why Applicants are unlikely to succeed on the merits and why the equities strongly disfavor a stay. In the meantime, Respondents submit this short opposition to explain why Applicants’ request for an immediate administrative stay should be denied. BACKGROUND Sixty-nine days before the upcoming federal election, and just over a week before some state laws require ballots to be mailed out, the United States Postal Service (USPS) published a rule entitled “Ballot Mail for Federal Elections.” 91 Fed. Reg. 54966 (Aug. 26, 2026) (Rule). The Rule provides, among other things, that state and local election officials must upload to USPS …
… Postal Service (USPS) published a rule entitled “Ballot Mail for Federal Elections.” 91 Fed. Reg. 54966 (Aug. 26, 2026) (Rule). The Rule provides, among other things, that state and local election officials must upload to USPS via an online portal (Portal) a list of voters eligible to receive mail ballots, together with a unique barcode identifying each such voter. See id. at 54991, Rule § 24.3. The Rule makes clear that USPS will refuse to deliver any ballot mail that does not comply with those requirements. Id., Rule § 24.5.3; see Appl. 5-6. The district court issued a temporary restraining order against key mandatory provisions of the Rule pending that court’s decision on Respondents’ motion for a preliminary injunction. That preliminary injunction motion was heard this morning, and the TRO will be dissolved as soon as the district court issues its decision—which the 2 …
… 227.10(a). Applicants suggest (Appl. 25-26) that a statement from North Carolina’s Board of Elections undermines the district court’s finding that compliance with the Rule will be impossible. As an initial matter, ballots in North Carolina are mailed out by 100 separate county boards of elections, see D. Ct. Dkt. 4-18 ¶ 6, and none of them has suggested that it would be feasible to mail compliant ballots by the end of this week. A spokesman for the state board has also since clarified that “North Carolina ha[s] no current plans to use the new Postal Service portal.” Sullivan, Postal Service Is Building Ballot Screening System Despite Ongoing Court Fight, N.Y. Times (Sept. 2, 2026), https://bit.ly/4ibZEVU. Likewise, in Wisconsin, which began mailing out ballots on September 1 and must mail all ballots by September 17, the Republican-appointed Chair of the Wisconsin Elections Commission has stated that compliance with the Rule is “virtually impossible.” D. Ct. Dkt. 100-1 ¶ 21. …
… among other things, that state and local election officials must upload to USPS via an online portal (Portal) a list of voters eligible to receive mail ballots, together with a unique barcode identifying each such voter. See id. at 54991, Rule § 24.3. The Rule makes clear that USPS will refuse to deliver any ballot mail that does not comply with those requirements. Id., Rule § 24.5.3; see Appl. 5-6. The district court issued a temporary restraining order against key mandatory provisions of the Rule pending that court’s decision on Respondents’ motion for a preliminary injunction. That preliminary injunction motion was heard this morning, and the TRO will be dissolved as soon as the district court issues its decision—which the 2 court indicated will likely be as soon as this evening or tomorrow. 1 The First Circuit has before it a motion for a stay of the TRO pending appeal on which highly expedited briefing is already complete. Meanwhile, USPS submitted a …
… together with a unique barcode identifying each such voter. See id. at 54991, Rule § 24.3. The Rule makes clear that USPS will refuse to deliver any ballot mail that does not comply with those requirements. Id., Rule § 24.5.3; see Appl. 5-6. The district court issued a temporary restraining order against key mandatory provisions of the Rule pending that court’s decision on Respondents’ motion for a preliminary injunction. That preliminary injunction motion was heard this morning, and the TRO will be dissolved as soon as the district court issues its decision—which the 2 court indicated will likely be as soon as this evening or tomorrow. 1 The First Circuit has before it a motion for a stay of the TRO pending appeal on which highly expedited briefing is already complete. Meanwhile, USPS submitted a declaration to the district court today explaining that the Portal is not yet …
… 5-6. The district court issued a temporary restraining order against key mandatory provisions of the Rule pending that court’s decision on Respondents’ motion for a preliminary injunction. That preliminary injunction motion was heard this morning, and the TRO will be dissolved as soon as the district court issues its decision—which the 2 court indicated will likely be as soon as this evening or tomorrow. 1 The First Circuit has before it a motion for a stay of the TRO pending appeal on which highly expedited briefing is already complete. Meanwhile, USPS submitted a declaration to the district court today explaining that the Portal is not yet functional and will not be available until, at the earliest, “sometime next week.” D. Ct. Dkt. 150-1 ¶ 3. 2 In seeking a stay of the TRO from the First Circuit, Applicants did not request relief by any date certain—quite possibly because they knew the Portal is not yet functional, meaning no State is …
… (Additional counsel listed 455 Golden Gate Avenue, Suite 11000 on signature pages) San Francisco, CA 94102-7004 (415) 510-3466 Ian.Fein@doj.ca.gov September 3, 2026 *Counsel of Record 1 Respondents intend to oppose Applicants’ request for a stay pending appeal by 10 a.m. EDT on September 8, 2026, as directed by Justice Jackson, including by explaining why Applicants are unlikely to succeed on the merits and why the equities strongly disfavor a stay. In the meantime, Respondents submit this short opposition to explain why Applicants’ request for an immediate administrative stay should be denied. BACKGROUND Sixty-nine days before the upcoming federal election, and just over a week before some state laws require ballots to be mailed out, the United States Postal Service (USPS) published a rule entitled “Ballot Mail for Federal …
… submit this short opposition to explain why Applicants’ request for an immediate administrative stay should be denied. BACKGROUND Sixty-nine days before the upcoming federal election, and just over a week before some state laws require ballots to be mailed out, the United States Postal Service (USPS) published a rule entitled “Ballot Mail for Federal Elections.” 91 Fed. Reg. 54966 (Aug. 26, 2026) (Rule). The Rule provides, among other things, that state and local election officials must upload to USPS via an online portal (Portal) a list of voters eligible to receive mail ballots, together with a unique barcode identifying each such voter. See id. at 54991, Rule § 24.3. The Rule makes clear that USPS will refuse to deliver any ballot mail that does not comply with those requirements. Id., Rule § 24.5.3; see Appl. 5-6. The district court issued a temporary restraining order against key mandatory provisions of the Rule pending that court’s decision on Respondents’ motion for a preliminary injunction. That preliminary injunction motion was heard this morning, and the TRO …
… D. Ct. Dkt. 4-18 ¶ 6, and none of them has suggested that it would be feasible to mail compliant ballots by the end of this week. A spokesman for the state board has also since clarified that “North Carolina ha[s] no current plans to use the new Postal Service portal.” Sullivan, Postal Service Is Building Ballot Screening System Despite Ongoing Court Fight, N.Y. Times (Sept. 2, 2026), https://bit.ly/4ibZEVU. Likewise, in Wisconsin, which began mailing out ballots on September 1 and must mail all ballots by September 17, the Republican-appointed Chair of the Wisconsin Elections Commission has stated that compliance with the Rule is “virtually impossible.” D. Ct. Dkt. 100-1 ¶ 21. That makes sense: again, by Applicants’ own admission, the Portal is not available yet—and will not be until next week at the earliest. D. Ct. Dkt. 150- 1 ¶ 3. Even if state and local officials could meet the Rule’s impossible demands, there is a high risk that errors and delay on USPS’ part will disenfranchise voters. USPS has conceded that its new Portal—the linchpin …
… every qualified mail voter to USPS’ as-yet-unreleased online Portal, and USPS will refuse to deliver ballot envelopes containing information that does not match the data in the Portal. See supra p. 1. The Rule also requires States to redesign their ballot envelopes and secure USPS’ approval for those new designs before they can send out a single mail ballot. See 91 Fed. Reg. at 54990- 54991, Rule § 24.3. And the Rule forbids uploading voter data to the Portal until USPS review and certification of ballot envelopes “is complete.” See 91 Fed. Reg. at 54979. Complying with these demands would be difficult under the best of circumstances. But USPS has made it “practically impossible as to the 2026 midterm elections.” App’x 10a. The agency published the Rule on August 26—just weeks before Election Day and only days before some States started sending out mail ballots. Respondents “have neither time nor funds to design new mail ballots, seek approval of the new designs, order production of …
… rule that TROs are not appealable applies. See, e.g., Dep’t of Educ. v. California, 604 U.S. 650, 651 (2025). That is especially true because the TRO at issue has not been extended (as it had been in Trump v. J.G.G., 604 U.S. 670, 671 (2025) and Sampson v. Murray, 415 U.S. 61, 67 n.8, 86-87 (1974)), and because it does not operate as a mandatory injunction (as it did in Northeast Ohio Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1006 (6th Cir. 3 The TRO was issued on August 27 and would expire automatically on September 10, see Fed. R. Civ. P. 65(b)(2), but the district court has indicated its intention to rule on Respondents’ preliminary-injunction motion well before that date. 7 2006)). This Court therefore lacks appellate jurisdiction over the TRO, particularly because, as explained above, Applicants cannot show any likelihood of harm from maintaining the status quo until the earlier of the TRO’s dissolution or this Court’s ruling on the stay application. It would also make little sense to enter an administrative stay when it is …
… started sending out mail ballots. Respondents “have neither time nor funds to design new mail ballots, seek approval of the new designs, order production of mail ballots, update their own election management systems, train election officials to use the USPS portal, and upload citizen data to the portal, all before 4 the midterms.” Id. at 11a. Indeed, one respondent State—North Carolina—is required by state law to begin mailing ballots tomorrow (September 4). See N.C. Gen. Stat. § 163- 227.10(a). Applicants suggest (Appl. 25-26) that a statement from North Carolina’s Board of Elections undermines the district court’s finding that compliance with the Rule will be impossible. As an initial matter, ballots in North Carolina are mailed out by 100 separate county boards of elections, see D. Ct. Dkt. 4-18 ¶ 6, and none of them has suggested that it would be feasible …
… the federal government acknowledged at this morning’s hearing in district court, issuance of a preliminary injunction ruling will moot any appeal of the TRO. See, e.g., In re Vendo Co., 435 U.S. 994 (1978) (dismissing proceeding as moot once Court had “been advised of an order . . . dissolving the injunction”). 8 CONCLUSION The request for an immediate administrative stay should be denied. Respectfully submitted, ANDREA JOY CAMPBELL ROB BONTA Attorney General Attorney General of California Commonwealth of Massachusetts SAMUEL T. HARBOURT DAVID C. KRAVITZ Solicitor General State Solicitor HELEN H. HONG GERARD J. CEDRONE Principal Deputy Solicitor General …
… 2006)). This Court therefore lacks appellate jurisdiction over the TRO, particularly because, as explained above, Applicants cannot show any likelihood of harm from maintaining the status quo until the earlier of the TRO’s dissolution or this Court’s ruling on the stay application. It would also make little sense to enter an administrative stay when it is so likely that a ruling on the preliminary injunction will issue imminently. As the federal government acknowledged at this morning’s hearing in district court, issuance of a preliminary injunction ruling will moot any appeal of the TRO. See, e.g., In re Vendo Co., 435 U.S. 994 (1978) (dismissing proceeding as moot once Court had “been advised of an order . . . dissolving the injunction”). 8 CONCLUSION The request for an immediate administrative stay should be denied. Respectfully submitted, ANDREA JOY CAMPBELL ROB BONTA …
… D. Ct. Dkt. 115 at 13, 15; “insufficient internal testing,” id. at 16; and “‘siloed’ . . . teams of developers . . . working independently without any effort towards interoperability,” id. at 17. USPS also plans to use a “batch” verification protocol—called a “zero-percent failure policy,” id. at 19—whereby thousands or tens of thousands of ballots will be processed simultaneously, and “if even one bar code on one single ballot . . . fails to properly scan,” “the entire batch is rejected and sent back to the state,” id. at 10-11. Scanning failures “are predictable—and likely,” in light of many “scanning problems” recently experienced by USPS. Id. at 20. While USPS submitted a declaration to the district court today with updates on the status of its Portal, see D. Ct. Dkt. 150- 1, it was notably silent on its plans with respect to verification and said nothing to counter these startling revelations. Given the many risks and uncertainties …
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