Amicus Curiae Brief — United States Postal Service, et al., Applicants v. California, et al.

No. 26A305

In The Supreme Court of the United States

UNITED STATES POSTAL SERVICE, ET AL., APPLICANTS

V.

STATE OF CALIFORNIA, ET AL.

DONALD J. TRUMP, ET AL., APPLICANTS

V.

LEAGUE OF WOMEN VOTERS OF MASSACHUSETTS, ET AL.

On Application for Stay of Injunction of the Order of the

United States District Court for the District of Massachusetts

BRIEF OF PROFESSORS EDWARD B. FOLEY, RICHARD L. HASEN,

PAMELA S. KARLAN, AND DOUGLAS LAYCOCK AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS STATE OF CALIFORNIA, ET AL.

NATHANIEL L. BACH

EMILY WHITELY

Manatt, Phelps & Phillips, LLP

2049 Century Park East

Suite 1700

Los Angeles, CA 90067

RICHARD L. HASEN

Counsel of Record

SHELBY WAYMENT

Safeguarding Democracy Project

UCLA School of Law

385 Charles E. Young Drive East

Los Angeles, California 90095

(310) 206-3103

hasenr@gmail.com

Counsel for Amici Curiae Professors Foley, Hasen, Karlan, and Laycock

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................... ii

INTEREST OF AMICI CURIAE ................................................................................... 1

SUMMARY OF THE ARGUMENT .............................................................................. 2

ARGUMENT .................................................................................................................. 6

I.

This Court Has Consistently Held That an Applicant Seeking the

Extraordinary Relief of a Stay Cannot Meet Its Burden When the

Balance of the Equities Tilts Sharply Against It and When Granting a

Stay Will Disserve the Public Interest. ................................................... 6

II.

Applicant’s Claim of Irreparable Injury is Weak and Relies Upon

Speculation. ............................................................................................ 11

III.

The Balance of the Equities and Public Interest Tip Sharply Against a

Stay. The USPS Rule Would Impose an “Effectively Impossible”

Burden on Election Administrators in the Middle of the Election Period

and Risk Disenfranchising Millions of Voters....................................... 13

CONCLUSION............................................................................................................. 20

i

TABLE OF AUTHORITIES

Federal Cases

Barnes v. E-Systems, Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301

(1991) ................................................................................................................... 8

Hecht Co. v. Bowles, 321 U.S. 321 (1933) ..................................................................... 7

Hollingsworth v. Perry, 558 U.S. 183 (2010) .......................................................... 9, 10

Maryland v. King, 567 U.S. 1301 (2012) ..................................................................... 10

Mirabelli v. Bonta, 607 U.S. 492 (2026) ...................................................................... 10

National Republican Senatorial Committee v. Brown, No. 26A274 (U.S., Sept. 4,

2026) ................................................................................................................... 9

NetChoice, LLC v. Fitch, 145 S. Ct. 2658 (2025) .......................................................... 2

Nken v. Holder, 556 U.S. 418 (2009) ..................................................................... 5, 6, 8

North Carolina v. Covington, 581 U.S. 486 (2017), ...................................................... 8

Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) .................................................. 11

Starbucks Corp. v. McKinney, 602 U.S. 339 (2024) .................................................. 6, 7

Trump v. California, No. 26A139 (U.S. Aug. 24, 2026)................................................ 5

Trump v. CASA, Inc., 606 U.S. 831 (2025) ................................................................. 10

Trump v. Cook, 146 S. Ct. 2234 (2026) ......................................................................... 8

Trump v. Int’l Refugee Assistance Project, 582 U.S. 571 (2017)............................. 5, 10

Trump v. Wilcox, 145 S. Ct. 1415 (2025)................................................................ 10, 18

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .................................................... 6

Whalen v. Roe, 423 U.S. 1313 (1975) .......................................................................... 11

Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) ........ 2, 5, 6, 7, 9

Other Authorities

91 Fed. Reg. 54991 ........................................................................................... 13, 15, 16

Derek Muller, Some Thoughts on the Merits and the Equities in the USPS Absentee

Ballots Case, Election Law Blog, Aug. 30, 2026 .............................................. 19

Douglas Laycock & Richard L. Hasen, Modern American Remedies 432-35 (6th ed.

2025) ................................................................................................................... 9

Samuel L. Bray, Preliminary Injunction Realism, 44 Rev. Litig. 203 (2025) ......... 5, 6

ii

Samuel L. Bray, The Purpose of the Preliminary Injunction, 78 Vand. L. Rev. 809

(2025) ................................................................................................................... 6

Sheryl Gay Stolberg & Michael D. Shear, Inside the Race to Rescue a Health Care

Site, and Obama, N.Y. Times, Nov. 20, 2013................................................... 17

iii

INTEREST OF AMICI CURIAE1

Amici are leading professors in Remedies and Election Law, the two fields that

come together in consideration of this Application.

Edward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold

Chair in Constitutional Law and Director, Election Law at the Ohio State University

Moritz College of Law. He was Reporter for The American Law Institute’s Principles

of the Law, Election Administration: Non-Precinct Voting and Resolution of BallotCounting Disputes, and is co-author of the casebook, Election Law and Litigation:

The Judicial Regulation of Politics (2nd ed. 2021).

Richard L. Hasen is the Gary T. Schwartz Endowed Chair in Law and

Professor of Political Science at UCLA School of Law, where he directs the

Safeguarding Democracy Project. Hasen is co-author of the casebook, Lowenstein et

al., Election Law—Cases and Materials (7th ed. 2022).

Pamela S. Karlan is the Kenneth and Harle Montgomery Professor of Public

Interest Law, and co-Director of the Supreme Court Litigation Clinic at Stanford Law

School. She is co-Reporter for the American Law Institute’s Restatement of the Law—

Constitutional Torts and co-author of the casebook, The Law of Democracy: Legal

Structure of the Political Process (6th ed. 2022).

1 No party’s counsel authored this brief in whole or in part; no party, counsel for a

party, or any person other than amici curiae or their counsel made a monetary

contribution toward the preparation and submission of this brief. Amici submit this

brief in their personal capacities; organizations are listed for identification purposes

only.

Douglas Laycock is the Robert E. Scott Distinguished Professor of Law

Emeritus at the University of Virginia School of Law and Alice McKean Young

Regents Chair in Law Emeritus at the University of Texas.

Laycock and Hasen are co-authors of the casebook, Modern American Remedies

(6th edition 2025) and are co-Reporters on the American Law Institute’s,

Restatement (Third) of Torts, Remedies.

SUMMARY OF THE ARGUMENT

This is an application for emergency interim relief in which the Applicant’s

asserted irreparable injury is so speculative and weak—and the balance of the

equities and the public interest so one-sided in favor of Respondents and the public—

that the Court may deny a stay in its judicial discretion without undertaking an indepth consideration of the constitutional and statutory merits questions presented.

The Court did just that in Winter v. Nat. Resources Defense Council, Inc., 555 U.S. 7,

23-24 (2008), denying preliminary relief under the balance of the equities despite

assuming applicants could show irreparable injury and “even if [applicants] are

correct on the underlying merits.” Id. at 31 n.5; see also NetChoice, LLC v. Fitch, 145

S. Ct. 2658, 2658 (2025) (Kavanaugh, J., concurring in the denial of application to

vacate stay) (interim relief not warranted despite Applicant’s showing that it was

likely to succeed on the merits because Applicant “has not sufficiently demonstrated

that the balance of harms and equities favors it at this time”).

Applicant argues that the district court’s preliminary injunction causes

irreparable injury by denying USPS the chance to implement its rules in time for the

2

2026 midterms (Appl. 29; see Dkt. No. 156 at 23)2 to prevent the “federal mails” from

being “used to perpetuate voter fraud.” Appl. at 5. Yet, this asserted injury is slight

and speculative at best. Applicant offered no evidence in the district court showing

how or that the USPS rule would stop any appreciable amount of voter fraud or even

that voter fraud through the mails is a widespread problem that USPS should

address (assuming it has the authority to impose conditions on mailing for that

purpose, which it likely does not). Worse, the undisputed evidence presented to the

district court—and ignored by Applicant here (see Appl. 29-30)—shows that USPS is

still not prepared to implement its new rule or do so accurately and efficiently, even

as states have begun mailing out their ballots. (See Part II infra.) Whether or not the

rule ultimately could be adequately implemented for the 2028 elections, the rule is

unlikely to serve any significant governmental interests in 2026, the subject of this

application.

In contrast to Applicant’s weak and speculative injury, the harm to the states

and to voters is enormous, as the rule threatens to disenfranchise millions of elderly

voters, disabled voters, military voters and all others including the most vulnerable

who depend on mail voting, in both red and blue states.

This disenfranchisement risk is literal, not hyperbolic. Under the rule’s

envelope requirements, USPS will reject all ballots from states that, at this late date,

cannot design, get USPS approval of, and print and pay for new ballot envelopes with

2 All citations to the docket are to the district court docket in State of California v.

United States Postal Service, unless otherwise noted.

3

“Intelligent Mail barcodes” with just days to go before the mailing of ballots. Under

the rule’s portal and matching requirements, USPS officials will reject ballots mailed

from states to voters unless the relevant election jurisdiction has, ahead of time,

uploaded the name and registered mailing addresses for all the voters in question to

USPS. The portal is not operational, much less fully tested in real election conditions,

meaning that if the rule were in effect USPS could not accept any ballots from any

states. Even once the portal is ready, the undisputed evidence shows that election

administrator compliance is “effectively impossible” at this late date so close to the

election. Patrick Decl. ¶ 38; Dkt. No. 171-3. Election administrators would need to

find a way to export their voter lists and upload them to the (so far nonexistent)

portal. Even in those states that could comply under tremendous time pressures, the

rule requires USPS to reject an entire batch of ballots if there are any discrepancies

between a single submitted ballot and the state’s list of voters with their registration

addresses. Yet, discrepancies are inevitable when states mail ballots to voters who

have registered after the state uploaded its list to the portal, when states mail ballots

to voters’ temporary addresses while traveling, and when states make predictable,

inconsequential administrative mistakes (or even follow different conventions such

as using “Apt. 2” instead of “Apt. #2”).

Applicant demonstrates particular chutzpah in claiming that states should

have “started making at least some preparations to comply months ago” (Appl. 31-32)

with the expected rule after Applicant successfully convinced this Court just two

weeks ago that earlier challenges to the future rule were unripe and that states had

4

no standing because any steps they took to comply with the expected rule were based

on speculation and not concrete injury. See Trump v. California, No. 26A139, slip op.

at 4 (U.S. Aug. 24, 2026).

Amici are hard-pressed to think of another case in their decades of studying

Remedies and Election Law in which the balance of the equities and the public

interest point so strongly against this Court granting emergency relief. Applicant’s

repeated assertion that that the new USPS election rule is “modest” (Appl. 2, 7, 13,

17, 22, 23, 24, 25, 27) does not make it so. Cf. Jonathan Swift, A Modest Proposal

(1729), Project Gutenberg, https://tinyurl.com/2jmeysf6.

An applicant is not entitled to “extraordinary” relief as a matter of right.

Winter, 555 U.S. at 22 (preliminary injunctions); Nken v. Holder, 556 U.S. 418, 432

(2009) (stays). Instead, the applicant bears the burden of showing that circumstances

justify the exercise of judicial discretion, Nken, 556 U.S. at 432, something that an

applicant cannot demonstrate when the balance of the equities tip sharply against it

and when the proposed extraordinary relief disserves the public interest. See Winter,

555 U.S. at 32-34; Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017)

(per curiam) (“IRAP”).

The grant or denial of a stay is not application of a mechanical rule but the

exercise of discretion by a court sitting in equity. When courts collapse their decisions

on preliminary relief into consideration only of the merits, they miss the essence of

what it means for a court sitting in equity to exercise judicial discretion. See Samuel

L. Bray, Preliminary Injunction Realism, 44 Rev. Litig. 203 (2025); Samuel L. Bray,

5

The Purpose of the Preliminary Injunction, 78 Vand. L. Rev. 809 (2025).

Applicant is correct that this “is not remotely a close case” (Appl. 6), but its

analysis is backwards. Here, the government’s interest in a rushed mail-ballot rule

rollout that has not been shown likely to prevent any appreciable voter fraud pales

next to the mass disenfranchisement and electoral chaos that looms ahead if this

Court lifts the stay. This Court should not sanction the pointless turmoil that would

follow.

ARGUMENT

I.

This Court Has Consistently Held That an Applicant Seeking the

Extraordinary Relief of a Stay Cannot Meet Its Burden When the

Balance of the Equities Tilts Sharply Against It and When Granting a

Stay Will Disserve the Public Interest.

As this court explained in Nken, 556 U.S. at 433, “[a] stay is not a matter of

right, even if irreparable injury might otherwise result. It is instead an exercise of

judicial discretion, and [t]he propriety of its issue is dependent upon the

circumstances of the particular case” (citation modified); see also Winter, 555 U.S. at

24 (preliminary injunction “never awarded as a matter of right”); Starbucks Corp. v.

McKinney, 602 U.S. 339, 345 (2024) (same). “The party requesting a stay bears the

burden of showing that the circumstances justify an exercise of that discretion.” Nken,

at 433-34.

As Professor Bray has explained, citing cases going back to 1830 and up to the

present, balancing the equities “is a critical part of the judicial decision, and it has a

long history in equity.” Bray, Preliminary Injunction Realism, at 225 & nn.50-51; see

also Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982) (“These commonplace

6

considerations,” including balancing the equities and the public interest, “applicable

to cases in which injunctions are sought in the federal courts reflect a ‘practice with

a background of several hundred years of history.’”) (quoting Hecht Co. v. Bowles, 321

U.S. 321, 329 (1933)); Starbucks, 602 U.S. at 346.

Winter itself is an excellent example of how the equities and the public interest

can dominate a court’s consideration of interim relief in certain cases. There,

plaintiffs obtained a preliminary injunction in the lower courts to stop the United

States Navy from conducting training activities using sonar without first completing

an environmental impact statement, alleging that sonar would harm marine life and

impair “ecological, scientific, and recreational interests.” 555 U.S. at 25. This Court

held that the lower courts erred in not balancing the equities and considering the

public interest: “While we do not question the seriousness of [plaintiffs’] interests, we

conclude that the balance of equities and consideration of the overall public interest

in this case tip strongly in favor of the Navy. For the plaintiffs, the most serious

possible injury would be harm to an unknown number of the marine mammals that

they study and observe. In contrast, forcing the Navy to deploy an inadequately

trained antisubmarine force jeopardizes the safety of the fleet.” Id. at 26.3

This Court reversed the grant of a preliminary injunction in Winter even while

assuming plaintiffs could show irreparable injury and “even if [plaintiffs] are correct

on the underlying merits.” Id. at 23-24, 31 n.5 (emphasis added). Balancing the

3 Notably, in Winter the government had not created its supposedly irreparable harm

by rulemaking delay; nor did federal government action endanger federalism by

impinging upon core state powers.

7

equities was key to this Court’s exercise of judicial discretion.

Consideration of the equities is necessary for the exercise of discretion,

whether or not the likelihood of success on the merits and movant’s irreparable injury

might be the “most critical” factors in some cases. (Appl. 6, citing Nken, 556 U.S. at

434). As this Court explained just two weeks ago in Trump v. California, slip op. at

2, to “secure a stay pending appeal, the Government must show that it is likely to

succeed on the merits and that it is likely to suffer irreparable harm without a stay.

. . . It must also demonstrate that the balance of equities does not counsel against

relief” (citation omitted); see also Trump v. Cook, 146 S. Ct. 2234, 2246 (2026) (“The

standards for [a stay] are well established: The applicant must show that it is likely

to succeed on the merits of its appeal, that we would likely grant certiorari to review

any decision to the contrary, that it will likely suffer irreparable harm in the interim,

and that the balance of equities tip in its favor.”).

Moreover, as the Court wrote in IRAP, 582 U.S. at 580, before issuing a stay,

“‘[i]t is ultimately necessary . . . to balance the equities—to explore the relative harms

to applicant and respondent, as well as the interests of the public at large’” (quoting

Barnes v. E-Systems, Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1305

(1991) (Scalia, J., in chambers)). “The purpose of such interim equitable relief is not

to conclusively determine the rights of the parties, but to balance the equities as the

litigation moves forward.” Id.

Thus, in North Carolina v. Covington, 581 U.S. 486, 488 (2017), this Court

criticized the district court for “failing to meaningfully weigh any equitable

8

considerations” in deciding to order special elections to cure a likely racial

gerrymander. Rejecting the district court’s “cursory” analysis, the Court explained

that “[a] district court . . . must undertake an ‘equitable weighing process’ to select a

fitting remedy for the legal violations it has identified [] taking account of ‘what is

necessary, what is fair, and what is workable’[].” Id. (citations omitted).

Applicant in this case makes too much (Appl. 6, 30-31) of this Court’s recent

statement in National Republican Senatorial Comm. v. Brown, No. 26A274, slip op.

at 2 (U.S., Sept. 4, 2026), that “[in] close cases ‘we balance the equities and weigh the

relative harms to the applicant and to the respondent.’” (Citing Hollingsworth v.

Perry, 558 U.S. 183, 190 (2010)) (emphasis added). Applicant misreads Brown as

holding that balancing the equities and public interest factors are irrelevant to this

Court’s exercise of equitable discretion once applicant sufficiently shows a likelihood

of success on the merits and irreparable injury.4 Appl. 6, 31. This Court’s precedents

prove this reading false.

Although any time “a state is enjoined by a court from effectuating statutes

enacted by representatives of its people, it suffers a form of irreparable injury”

4 There is some disagreement over whether the Court’s four-part tests for interim

relief in Winter and Nken list separate elements each to be met or factors to consider

in an overall balancing test. See Douglas Laycock & Richard L. Hasen, Modern

American Remedies 432-35 (6th ed. 2025). But in this case, as in Winter, it does not

matter. “It is clear that the Court [in Winter] thought the Navy’s interest in training

dwarfed the plaintiffs’ interest in whale watching.” Id. at 432. So too here, where the

equities and the public interest in keeping voters enfranchised and allowing election

administrators to continue using their well-tested election administration procedures

dwarf the government’s interest in enforcing a new, untested rule where the

government has made no effort to demonstrate that it would advance the

government’s alleged interests.

9

Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers); Trump v.

CASA, Inc., 606 U.S. 831, 861 (2025), the nature and extent of that irreparable injury

must be considered as the court exercises its equitable discretion.5 Irreparable injury

is not an on/off switch that is either met or not. As Justice Barrett explained in her

concurring opinion in Mirabelli v. Bonta, 607 U.S. 492, 501 (2026), the amount of

irreparable harm matters in the equitable balancing: “If the [plaintiffs] were probably

right but would suffer little harm from the Ninth Circuit’s stay, they would not be

entitled to interim relief.” Id. at 501 (Barrett, J., joined by the Chief Justice and

Justice Kavanaugh, concurring).6

Hollingsworth v. Perry, which this Court relied upon in last week’s Brown case,

indeed says that “[i]n close cases the Circuit Justice or the Court will balance the

equities and weigh the relative harms to the applicant and to the respondent.” 588

U.S. at 190. But it is instructive that after the Hollingsworth Court held that

applicants were likely to succeed on the merits, id. at 190-95, and that applicants

would suffer irreparable injury without a stay, id at 195-96, the Court still proceeded

to balance the equities, concluding that “[t]he balance of the equities favors

applicants,” id. at 196. See also IRAP, 582 U.S. at 580 (“Here . . . we are not asked to

grant a preliminary injunction, but to stay one. In assessing the lower courts’ exercise

5 In this case, the government’s mail rules came from a potentially illegal executive

order, not from a statute “enacted by representatives of the people.”

6 This Court similarly explained in Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025),

that the purpose of “interim equitable relief is not to conclusively determine the rights

of the parties, but to balance the equities as the litigation moves forward” (quoting

IRAP, 582 U.S. at 580)).

10

of equitable discretion, we bring to bear an equitable judgment of our own. Before

issuing a stay, [i]t is ultimately necessary . . . to balance the equities—to explore the

relative harms to applicant and respondent, as well as the interests of the public at

large.”) (citations omitted).

In any event, for reasons given by Respondents, it is unlikely that Applicant is

likely to succeed on the merits, rendering it at best a “close case” for Applicant and

therefore an occasion to balance the equities and consider the public interest.

II.

Applicant’s Claim of Irreparable Injury is Weak and Relies Upon

Speculation.

Applicant’s showing of irreparable injury is remarkably thin. Here, the

government’s only identified injury is delay in implementing the USPS rule before

the November 2026 elections. Appl. 29-30. But “delay alone” of a government program

does not itself meet the demanding standard of irreparable injury. Ruckelshaus v.

Monsanto Co., 463 U.S. 1315, 1317 (1983) (Blackmun, J., in chambers) (citing Whalen

v. Roe, 423 U.S. 1313, 1317 (1975) (Marshall, J., in chambers)).

Moreover, the government’s own record demonstrates that the practical benefit

to it of the injunction is far smaller than it suggests. USPS officials have

acknowledged that the ballot portal at the heart of the rule is still being refined and

is not yet operational. Monteith Decl. ¶ 2, No. 1:26-cv-11549-IT, Dkt. No. 280-1.

Meanwhile, states have already begun mailing ballots. Appl. 5. That fact is

particularly significant because the rule would prohibit USPS from accepting ballots

from states that have not complied with the portal requirements. Yet the portal itself

11

remains unavailable. Thus, even absent the injunction, Applicant does not, and

cannot, demonstrate that the rule could be implemented in any meaningful way

before the already-underway 2026 midterm elections. Dkt. 156 at 43-44. The district

court’s order therefore does not halt an existing government program. At most, it

postpones the rollout of a system that remains in development. See Dkt. 156 at 4546; Monteith Decl. ¶ 2. Any resulting injury to the government is necessarily limited

and of its own making.

Moreover, uncertainty regarding whether and how a program will be

implemented substantially weakens claims of immediate and irreparable harm from

an injunction preserving the status quo. Applicant points to no concrete operational,

financial, or administrative harm resulting from the district court’s order. Instead, it

baldly asserts only that the new USPS rule may help combat voter fraud—offering

little more than speculation that the rule would actually produce the intended

outcome. The district court, whose factual findings deserve deference, found no

evidence that the ballot portal, even if operational, would prevent voter fraud,

increase election integrity, or otherwise achieve the objectives Applicant asserts the

injunction threatens. See Dkt. 156 at 46. The government’s theory of injury therefore

depends on multiple layers of speculation—that the portal becomes operational in

time, it works as intended, that states are able to comply with its requirements, and

implementation would meaningfully reduce voter fraud.

If Applicant ultimately prevails, it remains free to implement the rule and

deploy an operational portal for 2028 and other future elections. What it identifies is

12

therefore not the permanent loss of governmental authority, but a temporary

postponement of a program whose effectiveness, necessity, and readiness for

deployment are untested. At most, Applicant has shown an interest in accelerating

implementation of a non-operational system whose effectiveness remains entirely

unproven. That showing falls well short of the substantial and irreparable injury

required to justify the extraordinary relief it seeks.

III.

The Balance of the Equities and Public Interest Tip Sharply Against a

Stay. The USPS Rule Would Impose an “Effectively Impossible”

Burden on Election Administrators in the Middle of the Election

Period and Risk Disenfranchising Millions of Voters.

Lifting the stay and thereby allowing the USPS rule to go into effect would be

inequitable and contrary to the public interest. Applicant tries to conflate the two key

parts of the rule, the envelope requirement and the portal and matching requirement,

but they impose discrete burdens and risks of mass disenfranchisement.

The envelope requirement and its inequity for the 2026 elections. The rule

prohibits USPS from accepting and delivering ballots from states to voters—including

to valid voters with proper addresses and postage—unless the envelopes for ballot

materials mailed both from the states and from the voters meet new USPS conditions,

including the inclusion of a unique “Intelligent Mail barcode” printed on each

envelope. 91 Fed. Reg. 54991 (§§ 705.24.3.1-705.24.3.2). States must submit their

proposed envelope design to USPS for approval before ballots can be mailed. 91 Fed.

Reg. 54991 (§ 705.24.5.1). If a state does not participate in the program, USPS must

reject ballots submitted for mailing. 91 Fed. Reg. 54991 (§ 705.24.5.3).

The envelope requirement risks imposing serious irreparable injury for

13

election administrators and voters in the 2026 elections. States have already

designed and purchased ballots, envelopes, and other election materials. Wise Decl.

¶ 14 (Washington); Wise Decl. ¶ 42 (Colorado). Some states have mailed, or are about

to mail, ballots. Millis Decl. ¶ 14 (Wisconsin); Brunton Decl. ¶ 6 (North Carolina). In

other words, administration of this election has already begun, and it is too late to

implement sweeping changes. With only eight weeks until the election, there is

simply not enough time even for states that do have the technical capacity to redesign,

submit their envelopes to USPS for approval, and then reprint envelopes, all of which

requires substantial time, costs, and resources. Dkt. 156 at 43-45.

States that have already purchased and printed their ballots and envelopes do

not have compliant envelopes that contain the Intelligent Mail barcodes required

under the USPS rule. Fontes Decl. ¶ 37 (Arizona); Tassinari Decl. ¶ 45

(Massachusetts). States would need to design new envelopes and submit the design

for USPS approval, a process that process can take weeks or months. See Hanzas

Decl. ¶ 37 (in Vermont, approval took approximately three months); Brater Decl. ¶

41 (in Michigan, approval takes “weeks at minimum”); Flynn Decl. ¶¶ 37-38 (in Maine

“USPS took weeks” to approve an envelope design). States would need to print new

envelopes after receiving USPS approval, which can take significant time as largescale printing of ballots and ballot envelopes is typically scheduled months in

advance. See Holmes Decl. ¶ 42 (Washington).

Further, under state law, Rhode Island cannot put an Intelligent Mail barcode

on the return mail envelopes, so it is unclear how Rhode Island could comply with

14

both the new USPS rules and state law. Rock Decl. ¶ 18 (Rhode Island). Some

jurisdictions, especially rural ones, do not have the ability to print Intelligent Mail

barcodes. Wlaschin Decl. ¶ 23 (Nevada); Millis ¶¶ 30-31 (Wisconsin). These states

cannot currently comply with the new rules due to legal or logistical constraints.

The district court found that many election jurisdictions simply could not

change their envelope designs in time and purchase new envelopes from vendors to

comply with their mailing obligations for the 2026 election that concludes in less than

eight weeks, in which case the voters in those jurisdictions will effectively be denied

their ability to vote by mail. Dkt. 156 at 43-45. And for some voters—including the

elderly, disabled, or those traveling—denying those voters a mailed ballot effectively

denies them their ability to vote at all. Dawson Decl. ¶ 18 (Oregon); Nago Decl. ¶ 24

(Hawaii). Other jurisdictions might be able to alter their ballots before they are

required to mail them out, but only with enormous expense and diversion of

resources.

The portal and mailing matching requirement and their inequity for the 2026

elections. The USPS rule bars postal officials from mailing ballot envelopes from

states to voters—even with the new envelope designs—unless the relevant election

jurisdiction has, ahead of time, provided the name and registered mail addresses of

all of its voters to USPS for inclusion on its web-based “portal,” a portal which is not

yet operational. 91 Fed. Reg. 54991 (§§ 705.24.5.1-705.24.5.3); Monteith Decl. ¶ 3.

The rule requires USPS to reject ballots from states that have not uploaded their

voting lists to the portal. 91 Fed. Reg. 54991 (§ 705.24.5.3). And for states that do

15

comply, or attempt to comply, once the portal is actually available, the rule requires

USPS to reject an entire batch of scanned ballots if there are any discrepancies or

mismatches between the information gleaned via the intelligent bar code on each

submitted ballot and the state’s list of voters and their registration addresses. Decl.

Michael Cohen, Exhibit A.

The risks of the portal requirement to the 2026 elections are serious. The rule

bars USPS from accepting ballots from states that have not uploaded their voter lists

to the portal. 91 Fed. Reg. 54991 (§ 705.24.5.3). But, as of this filing, there is no

operational portal. A USPS official told the district court in a court-ordered affidavit

submitted last week on September 3, 2026, that USPS anticipated that that the portal

would be ready for use “sometime” the week of September 7 “on a voluntary basis.”

Monteith Decl. ¶ 3.7 If USPS cannot implement its rule because the portal is not yet

available, then it cannot accept any ballots from any states, requiring all states and

voters who depend on mail ballots to scramble in order to avoid mass

disenfranchisement. Fontes Decl. ¶ 42 (Arizona); Rudy Decl. ¶ 45 (Colorado). Many

states will be unable to find sufficient alternative means to deliver ballots or provide

in-person voting opportunities, leaving voters disenfranchised.

Even once the portal becomes operational—if not fully functional—many states

will not have the time and expertise to prepare and submit lists in time to get the

7 The delay in implementation cannot be attributed to the district court’s order, it is

USPS’s own delay to build the new system, and at this late stage, there is no time to

implement a new system in the middle of an election without causing widespread

chaos.

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ballots out to voters for the already-underway 2026 elections. Dkt. 156 at 40 (“[All

Plaintiff States] characterize uploading voter data to the Portal for the midterms as

a massive undertaking and seriously doubt their ability to do so.”). The undisputed

evidence submitted to the district court shows that, even putting aside new expenses,

state compliance is “effectively impossible” at this late date. Patrick Decl. ¶ 38.

Elections take months of preparation and cannot turn on a dime.

The inequity and risk of disenfranchisement is magnified by USPS’s draconian

requirement that it must reject an entire batch of scanned ballots if there are any

discrepancies between a single submitted ballot and the state’s list of voters and their

registration addresses. Decl. Michael Cohen, Exhibit A; Patrick Decl. ¶ 113. As states

cobble together and upload a voter list under tremendous time pressures, rejections

of ballot batches are not just foreseeable but inevitable. Patrick Decl. ¶¶ 90-92. Aside

from administrative errors, uploaded lists will not include eligible voters who register

after the upload, requiring constant adjustments to the list. Stavisky Decl. ¶ 28 (New

York). And voters who ask election administrators to mail their ballots to a temporary

address where they may be residing will be flagged as a mismatch because their

mailing address will not match their registration address. Patrick Decl. ¶ 104.

And no one should expect instant perfection from the postal service. It is likely

that USPS’s portal, and its use of the portal to decide which ballots to send to voters,

will have glitches that are inevitable in the government rollout of a new website.

Cf. Sheryl Gay Stolberg & Michael D. Shear, Inside the Race to Rescue a Health Care

Site, and Obama, N.Y. Times, Nov. 20, 2013, https://tinyurl.com/53r5vhkt. New

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voting systems take months or years to implement; they are not done in a slapdash

way once election administration has already commenced. Even if states do

everything perfectly, millions of ballots risk still being rejected by a poor rollout,

leaving states and voters scrambling again. See Stavisky Decl. ¶¶ 54-55 (New York);

Brunton Decl. ¶ 22 (North Carolina).

The serious risk of disenfranchisement. Changing mail balloting rules this close

to the election would have a “disruptive effect” on election administration and risk

disenfranchising millions of voters who depend upon mail-in voting to cast a ballot.

Wilcox, 145 S. Ct. 1417. Important state resources would be diverted from actually

administering an election, as state election administrators attempt compliance with

a new, untested system that does not exist. Albence Decl. ¶ 55 (Delaware). State

election officials are ill-suited to provide public guidance on how the new rules will

impact individual voters, as the system is untested and does not yet exist. See

Stavisky Decl. ¶¶ 40-42 (New York). A rollout of these new rules is not workable in

the middle of an election, and to allow USPS’s plan to go into effect would sanction

widespread chaos and disenfranchisement, disrupting the entire election.

The unprecedented chaos the rule would cause to election administration

harms both plaintiffs and the public; the public interest, therefore, weighs extremely

strongly against this Court’s granting of emergency relief. Denying the application

would allow states to administer their elections as planned, mailing out the alreadydesigned and purchased ballots, and avoid interjecting widespread confusion and

chaos into an active election. See Derek Muller, Some Thoughts on the Merits and the

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Equities in the USPS Absentee Ballots Case, Election Law Blog, Aug. 30, 2026,

https://tinyurl.com/ykc9m9p5. The government can try again for 2028.

Voting by mail is a method relied on by millions of eligible voters each election

cycle, and the USPS rule would risk disenfranchising these voters. The impacts would

be especially pronounced for elderly and disabled voters, who depend on voting by

mail to cast a ballot. See U.S. Election Assistance Commission, Best Practices:

Accessibility for Voting by Mail (2025), https://tinyurl.com/zweenyde; Millis Decl. ¶ 34

(Wisconsin). Particularly in rural areas, an elderly or disabled voter who cannot drive

themselves to a polling location and does not have access to reliable public transit,

has no other method to cast a ballot. See Nago Decl. ¶ 24 (Hawaii). Voters must

scramble to adjust their voting plans, but many will not have an alternate way to cast

a ballot. Voters should not have to rely on third party assistance to cast a ballot.

There is no reason to disenfranchise thousands, if not millions, of elderly and

disabled voters across the entire United States who have successfully voted by mail

in previous elections and rely on it to cast their ballot. Applicant has not offered any

evidence to show how the new rule, which would risk mass disenfranchisement,

would stop any appreciable amount of voter fraud, or that any past elections have

been marred by such fraud. Dkt. 156 at 45-46. The disruptive effect of imposing new

election administrative rules during an election cycle would cause direct harm to

states, election officials, and the public and risks mass disenfranchisement. Patrick

Decl. ¶ 123; Wise Decl. ¶ 81 (Washington). The public interest would be greatly

disserved by a stay. Applicant’s asserted speculative irreparable injury does not

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justify the extreme burdens the rule would place on states and election officials, or

the widespread harm to the public.8

CONCLUSION

For the foregoing reasons, this Court should deny Applicant’s request for a stay

of the preliminary injunction pending appeal.

Date: September 8, 2026

Respectfully Submitted,

RICHARD L. HASEN

Counsel of Record

SHELBY WAYMENT

Safeguarding Democracy Project

UCLA School of Law

385 Charles E. Young Drive East

Los Angeles, California 90095

(310) 206-3103

NATHANIEL L. BACH

EMILY WHITELY

Manatt, Phelps & Phillips, LLP

2049 Century Park East, Suite 1700

Los Angeles, CA 90048

Counsel for Amici Curiae Professors Foley,

Hasen, Karlan, and Laycock

8 USPS has said the new rules do not apply to military or overseas voters outside the

United States, but these voters may still be harmed by the widespread confusion and

chaos created from the new USPS rules. (Military voters within the United States

face the same risk of disenfranchisement described above as all other voters.) Eligible

voters, military or otherwise, temporarily outside the United States already have low

rates of voter turnout, due in part from the hurdles these voters already face when

casting a ballot. Declaration of Doris Speer, Document 75-5 ¶ 14, No. 1:26-cv-11549

(D. Mass, Apr. 23, 2026) Dkt. No. 75. Interjecting last minute chaos and incomplete

rule changes into the election cycle would cause widespread voter confusion,

including to these voters, who may be unsure whether their ballot will be delivered

under the new rules. See Declaration of Susan Dzieduszycka-Suinat, Document 75-4

¶¶ 27-30, No. 1:26-cv-11549 (D. Mass, Apr. 23, 2026) Dkt. No. 75.

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