Amicus Curiae Brief — United States Postal Service, et al., Applicants v. California, et al.
Supreme Court briefSep 9, 2026
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No. 26A305
______________________________________________________________________________
IN THE
Supreme Court of the United States
______________________________________________________________________________
UNITED STATES POSTAL SERVICE, et al.,
v.
STATE OF CALIFORNIA, et al.,
DONALD J. TRUMP, et al.,
Applicants,
Respondents.
Applicants,
v.
LEAGUE OF WOMEN VOTERS OF MASSACHUSETTS, et al.,
Respondents.
BRIEF OF DEMOCRATIC PARTY AMICI CURIAE IN OPPOSITION TO
THE APPLICATION FOR A STAY OF THE PRELIMINARY INJUNCTION
ISSUED BY THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
TYLER L. BISHOP
ELIAS LAW GROUP LLP
1700 Seventh Ave, Suite 2100
Seattle, Washington 98101
Tel.: (202) 948-1135
MARC E. ELIAS
Counsel of Record
LALITHA D. MADDURI
JACOB D. SHELLY
MAX ACCARDI
KEVIN R. KOWALEWSKI
ELIAS LAW GROUP LLP
250 Massachusetts Ave NW, Suite 400
Washington, D.C. 20001
Tel.: (202) 948-1135
Counsel for DSCC, DCCC, Democratic National Committee,
and Democratic Governors Association
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
INTERESTS OF AMICI CURIAE................................................................................. 1
INTRODUCTION .......................................................................................................... 3
ARGUMENT .................................................................................................................. 5
I.
II.
III.
Applicants are unlikely to succeed on the merits because the Ballot
Mail Rule exceeds any authority Congress gave the Postal Service. ............... 5
A.
The Rule violates the separation of powers. ........................................... 5
B.
The Rule exceeds the Postal Service’s statutory authority. ................... 8
1.
Ultra vires review is available where the Postal Service
acts in excess of its delegated powers. .......................................... 8
2.
Title 39 prohibits the Postal Service from implementing
the Ballot Mail Rule. ................................................................... 10
3.
Other Postal Service regulations—real and imagined—
are not analogous. ........................................................................ 13
The equities and the public interest weigh heavily against a stay................. 17
A.
Nothing in the record plausibly rebuts the evidence that the Rule
will disenfranchise entirely lawful voters. ............................................ 18
B.
The Rule is disrupting political parties and candidates competing in
the November election. ........................................................................... 21
Applicants have no interest in enforcing the Rule for the November
2026 election. ..................................................................................................... 23
A.
There is no public or governmental interest in the enforcement of
an unlawful rule. .................................................................................... 23
B.
Purcell counsels against a stay. ............................................................. 24
CONCLUSION............................................................................................................. 25
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TABLE OF AUTHORITIES
PAGE(S)
CASES
ACLU v. Ashcroft,
322 F.3d 240 (3d Cir. 2003) .............................................................................. 23
All. for Hippocratic Med. v. U.S. Food & Drug Admin.,
78 F.4th 210 (5th Cir. 2023) ............................................................................. 23
Am. C.L. Union of Ill. v. Alvarez,
679 F.3d 583 (7th Cir. 2012) ............................................................................. 23
Am. Sch. Of Magnetic Healing v. McAnnulty,
187 U.S. 94 (1902) ............................................................................................. 10
Arizona v. Inter Tribal Council of Ariz., Inc.,
570 U.S. 1 (2013) ......................................................................................... 5, 7, 8
Bd. of Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc.,
502 U.S. 32 (1991) ............................................................................................... 9
Bost v. Ill. State Bd. of Elections,
607 U.S. 71 (2026) ..................................................................................... 1, 4, 21
Conte & Co., Inc. v. Stephan,
713 F. Supp. 1382 (D. Kan. 1989)..................................................................... 12
Doe v. Kelly,
878 F.3d 710 (9th Cir. 2017) ............................................................................. 23
DSCC v. Trump,
No. 26-5193, 2026 WL 2168617 (D.C. Cir. July 28, 2026) ............. 3, 5, 7, 22, 25
EMW Women’s Surgical Ctr., P.S.C. v. Beshear,
No. 17-6151, 2017 WL 11920191 (6th Cir. Dec. 8, 2017) ................................ 23
Ex parte Siebold,
100 U.S. 371 (1879) ......................................................................................... 7, 8
Fish v. Kobach,
840 F.3d 710 (10th Cir. 2016) ........................................................................... 21
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Honeyfund.com Inc. v. Governor,
94 F.4th 1272 (11th Cir. 2024) ......................................................................... 23
Kobach v. Election Assistance Comm’n,
772 F.3d 1183 (10th Cir. 2014) ........................................................................... 8
La. Pub. Serv. Comm’n v. FCC,
476 U.S. 355 (1986) ........................................................................................... 10
Leaders of a Beautiful Struggle v. Balt. Police Dep’t,
2 F.4th 330 (4th Cir. 2021) ............................................................................... 23
League of Women Voters of N.C. v. North Carolina,
769 F.3d 224 (4th Cir. 2014) ............................................................................. 21
League of Women Voters of U.S. v. Newby,
838 F.3d 1 (2016) ......................................................................................... 21, 23
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ........................................................................................... 13
Malliotakis v. Williams,
146 S. Ct. 809 (2026) ......................................................................................... 25
Merrill v. Milligan,
142 S. Ct. 879 (2022) ......................................................................................... 24
N. Air Cargo v. U.S. Postal Service,
674 F.3d 852 (D.C. Cir. 2012) ............................................................................. 9
N.Y. Progress & Prot. PAC v. Walsh,
733 F.3d 483 (2d Cir. 2013) .............................................................................. 23
Nat’l Ass’n of Postal Supervisors v. U.S. Postal Service,
26 F.4th 960 (D.C. Cir. 2022).............................................................................. 9
New York v. Trump,
171 F.4th 1 (1st Cir. 2026) ................................................................................ 23
Nken v. Holder,
556 U.S. 418 (2009) ........................................................................................... 17
NRSC v. FEC,
146 S. Ct. 2418 (2026) ................................................................................... 2, 22
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Nuclear Regulatory Commission v. Texas,
605 U.S. 665 (2025) ............................................................................................. 9
Pryor v. Sch. Dist. No. 1,
99 F.4th 1243 (10th Cir. 2024) ......................................................................... 23
Purcell v. Gonzalez,
549 U.S. 1 (2006) ........................................................................................... 5, 25
Sears, Roebuck & Co. v. U.S. Postal Service,
844 F.3d 260 (D.C. Cir. 2016) ............................................................................. 9
Tex. Democratic Party v. Benkiser,
459 F.3d 582 (5th Cir. 2006) ......................................................................... 2, 22
Thomas More L. Ctr. v. Obama,
651 F.3d 529 (6th Cir. 2011) ............................................................................... 5
Trump v. California,
Nos. 26A124 & 26A139, 2026 WL 2473573 (U.S. Aug. 24, 2026) ................... 24
Watson v. RNC,
146 S. Ct. 2165 (2026) ..................................................................................... 5, 7
Wooley v. Maynard,
430 U.S. 705 (1977) ............................................................................................. 7
Zivotofsky ex rel. Zivotofsky v. Kerry,
576 U.S. 1 (2015) ................................................................................................. 8
US CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 4 ................................................................................................. 5, 7
U.S. Const. art. II, § 1 .................................................................................................... 7
STATUTES
18 U.S.C. § 1716 ........................................................................................................... 14
39 U.S.C. § 101 ............................................................................................................. 10
39 U.S.C. § 102 ....................................................................................................... 12, 13
39 U.S.C. § 401 ............................................................................................... 3, 8, 10, 11
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39 U.S.C. § 404 ................................................................................................. 10, 12, 13
39 U.S.C. § 410 ............................................................................................................... 8
39 U.S.C. §§ 3001–3018 ......................................................................................... 10, 12
39 U.S.C. § 3017 ........................................................................................................... 16
39 U.S.C. § 3018 ........................................................................................................... 15
REGULATIONS
Ballot Mail for Federal Elections, 39 CFR pt. 111 (Aug. 21, 2026) ............................. 2
Ballot Mail for Federal Elections,
91 Fed. Reg. 54966 (Aug. 26, 2026) .............................................. 6, 8, 16, 19, 20
Cremated Remains Packaging Requirements,
90 Fed. Reg. 9843 (Feb. 19, 2025)..................................................................... 14
Ensuring Citizenship Verification and Integrity in Federal Elections,
91 Fed. Reg. 17125 (Mar. 31, 2026) .................................................................... 6
Restricting the Mailing of Replica or Inert Explosive Devices,
75 Fed. Reg. 282 (Jan. 5, 2010)......................................................................... 14
FEDERAL RULES
S. Ct. R. 37.6 .................................................................................................................. 1
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INTERESTS OF AMICI CURIAE
Amici curiae are the Democratic Senatorial Campaign Committee (DSCC),
Democratic Congressional Campaign Committee (DCCC), Democratic National
Committee (DNC), and Democratic Governors Association (DGA) (together,
“Democratic Party Amici”). 1
DSCC’s mission is to elect Democratic candidates to the U.S. Senate; DCCC’s
mission is to elect Democratic candidates to the U.S. House of Representatives; and
the DNC is dedicated to electing Democratic candidates up and down the ballot. DGA
supports Democratic governors and works to elect Democratic gubernatorial
candidates across the United States. Collectively, Amici’s membership includes
Democratic candidates and voters in all 50 States and the District of Columbia.
With States already distributing mail ballots for the 2026 general election,
Amici are fully engaged in supporting their candidates and voters. They are helping
candidates execute campaign strategies built around each State’s election rules,
including the rules governing voter qualifications and mail voting, and they are
assisting voters who seek to register and cast ballots—by mail or otherwise.
Amici’s efforts are premised on a constitutional system of free and fair
elections. See Bost v. Ill. State Bd. of Elections, 607 U.S. 71, 77 (2026) (holding
candidates’ “interest in [political power] cannot be severed from their interest in the
electoral process—a process ‘of the most fundamental significance under our
1 Pursuant to Supreme Court Rule 37.6, Amici state that no counsel for a party
authored this brief in whole or in part, and no person other than Amici or their
counsel made a monetary contribution to fund its preparation or submission.
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constitutional structure’” (quoting Ill. Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 184 (1979)); see also NRSC v. FEC, 146 S. Ct. 2404, 2418, 2425 (2026)
(describing “unique,” “intertwined relationship of parties and their candidates”); Tex.
Democratic Party v. Benkiser, 459 F.3d 582, 586–88 (5th Cir. 2006) (holding political
parties have “both direct and associational” interests in candidates’ electoral efforts).
To achieve their missions, Amici require clear, stable rules, especially at this
late stage in the election calendar. They require postal services that leave election
regulation to the States and focus on seamless, universal ballot delivery—an issue of
urgent importance for Amici given Democratic Party voters’ disproportionate use of
mail voting. The Postal Service’s rule promulgated pursuant to Executive Order
14,399 (the “E.O.”) harms each of these interests. See Ballot Mail for Federal
Elections, 39 CFR pt. 111 (Aug. 21, 2026) (the “Ballot Mail Rule”).
Amici are now litigating the E.O. and the Ballot Mail Rule in the District of
Columbia, where their motion for a preliminary injunction remains pending. See
DSCC v. Trump, No. 26-cv-1114 (D.D.C.).
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INTRODUCTION
The Ballot Mail Rule is a “substantial and unfunded overhaul of election
procedures—including the implementation of a nationwide reform to Postal Service
mail-handling processes—on the threshold of the November election.” DSCC v.
Trump, No. 26-5193, 2026 WL 2168617, at *5 (D.C. Cir. July 28, 2026) (per curiam).
And this overhaul was undertaken by USPS expressly at the behest of “the President,
whom the Constitution vests with no express authority over the conduct of elections.”
Id. As such, the Rule is unlawful and was properly enjoined by the District of
Massachusetts.
Despite Respondents and Democratic Party Amici underscoring for months
that USPS has no authority to refuse to deliver properly postaged ballot mail,
Applicants still cannot identify any legal basis that would allow USPS to take the
actions that the Rule now dictates. The best Applicants can do is gesture at USPS’s
general authorization to make rules necessary to the exercise of its assigned statutory
“functions,” 39 U.S.C. § 401(2), but that begs the fundamental question rather than
answering it—where has Congress ever tasked USPS with protecting the integrity of
federal elections (Applicants’ framing), let alone with gatekeeping which voters may
receive their ballot by mail (a truer reading)? It has done neither.
Lacking any on-point authority, Applicants instead highlight the only two
regulations in postal history that they deem analogous: those governing cremated
human remains and replica explosives. One struggles to think of mail items that are
less like a ballot. Applicants’ remaining arguments are no better. USPS envelopedesign recommendations and ballot-prioritizing guidance that ensure ballot mail is
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timely delivered do not justify requirements that would prohibit ballot mail from
being delivered. A purely hypothetical regulation about retirement-home mail does
not justify any final rule regulating elections. And it makes no sense to defend the
Ballot Mail Rule as necessary to defend election integrity while disclaiming that the
Rule has anything to do with elections—or does anything to prevent fraudulent
voting—at all.
Equitable considerations also weigh against a stay. On one side of the scale
are the millions of voters who already are casting or imminently will cast mail ballots
in the 2026 elections. Applicants themselves warn that, if the Rule goes into effect,
“there is a grave risk that States may not have taken the necessary steps to
comply,” which will result in “potentially depriving those States’ citizens of the
ability to vote by mail.” Appl. 6–7 (emphasis added). Additionally, mail ballots may
be delayed (or not transmitted at all) if any one of several brand-new technologically
complex components of the Rule’s untested system fails. Catastrophe is sure to befall
voters if the Rule is implemented in the manner a whistleblower foreshadowed,
whereby a discrepancy on a single ballot envelope could freeze the delivery of
thousands of other ballots in the accompanying batch. Further still, parties and
candidates, like Amici, would have to reconfigure campaigns in the final stretch of
fiercely contested elections—not unlike competitors in a 100-meter dash learning
mid-sprint that the race has been extended to 105 meters. See Bost, 607 U.S. at 79.
On the other side, Applicants can claim no interest in the implementation of
an unlawful regulation, and the injunction below preserves the rules under which
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every State planned this election before federal executive overreach spawned chaos.
See DSCC, 2026 WL 2168617, at *5. Moreover, as this Court has repeatedly
emphasized, federalism principles preclude last-minute interference with State
election administration. See Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006).
The Application should be denied.
ARGUMENT
I.
Applicants are unlikely to succeed on the merits because the Ballot
Mail Rule exceeds any authority Congress gave the Postal Service.
The Ballot Mail Rule exceeds any authority afforded to the Executive Branch
by the Constitution or by Congress. Applicants fail to show otherwise.
A.
The Rule violates the separation of powers.
The Ballot Mail Rule violates separation-of-powers principles multiple times
over. To start, the Rule violates the “vertical separation of powers between the
National Government and the States.” Thomas More L. Ctr. v. Obama, 651 F.3d 529,
564 (6th Cir. 2011) (Sutton, J., concurring in part). The Constitution delegates to the
States the power to regulate the “Times, Places and Manner of holding [federal]
Elections,” absent congressional preemption. U.S. Const. art. I, § 4, cl. 1. And the
Elections Clause authorizes States alone to set voter qualifications. Arizona v. Inter
Tribal Council of Ariz., Inc. (“ITCA”), 570 U.S. 1, 16 (2013) (recognizing “the Elections
Clause empowers Congress to regulate how federal elections are held, but not who
may vote in them”). States have exercised their authority by permitting mail ballots
to be submitted by classes of voters that they select, and according to rules of their
choosing. See generally Watson v. RNC, 146 S. Ct. 2165, 2170 (2026).
-5-
The Ballot Mail Rule infringes on these State prerogatives by requiring States
to enroll their mail voters with USPS, requiring States to conform their ballot mail
envelopes to USPS’s specific design parameters, and by refusing to transmit ballots
that do not comply with these unlawful requirements. See App. 27a. Though
Applicants characterize the Rule as a mere postal regulation unconnected to election
administration, the text and stated goals of the Rule make clear that its express
purpose is to regulate elections. The Rule’s title is “Ballot Mail for Federal Elections,”
and it explicitly states “Federal election” policy aims. 91 Fed. Reg. 54966 (Aug. 26,
2026) (setting policy “regarding the transmission of mail-in or absentee ballots for
federal elections”). 2
Applicants have no real response to this vertical separation-of-powers problem.
They claim that “the Postal Service can exercise its general rule-making authority to
adopt election-specific mail-preparation rules, as it has long done.” Appl. 19–20. But
the examples Applicants cite—like the use of an “Election Mail logo” to “prioritize
delivery of ballot mail” and the rapid delivery of mail ballots, id.—are not rules that
See also 91 Fed. Reg. at 54966 (expressing purpose of “ensur[ing] the faithful
execution of federal law in connection with federal elections,” and tying effective date
to “election” calendar); id. (repeatedly referring to requirements of “election officials”);
id. at 54967 (reiterating purpose of “enhancing election security by improving the
visibility of Federal Ballot Mail”). Additionally, the Rule was promulgated pursuant
to an Executive Order titled, “Ensuring Citizenship Verification and Integrity in
Federal Elections,” with the stated goal and purpose of ensuring “only citizens receive
and cast ballots.” See 91 Fed. Reg. 17125 (“E.O.”) § 1; see also id. § 3(b) (further
reiterating purpose of “protect[ing] the integrity of the mail as a medium for
transmitting Federal election ballots”); id. § 3(b)(ii) (requiring “a list of voters eligible
to vote in a Federal election in such State”); id. § 3(b)(v) (tying policy goal to “Federal
election” calendar); id. § 3(c) (mandating “investigation of suspected unlawful use of
the mail involving Federal election materials”).
2
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regulate states or voters. Rather, the “Election Mail” logo and other “ballot-mail
envelope design elements” enshrined in existing USPS practice, id. at 20, are
voluntary—and thus do not intrude on States’ election-regulation prerogatives
because they do not require States to do or refrain from doing anything. Similarly,
USPS’s policy of prioritizing election mail over other categories of mail is an internal
mail-processing heuristic—one that, again, has not been formalized in a rulemaking
and does not impose obligations on any third parties. The difference between an
optional procedure that facilitates mail delivery and a final rule that prohibits the
delivery of noncompliant ballot mail is the difference between lawful and lawless. Cf.
Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding state could offer, but not
require, license plates displaying state motto).
The Rule also violates the horizontal separation of powers between the
executive and legislative branches. The Constitution entrusts power over federal
elections to “[S]tate legislatures ‘primarily’ and [to] Congress ‘ultimately.’” Watson,
146 S. Ct. at 2170 (citing The Federalist No. 59, at 362 (Alexander Hamilton) (C.
Rossiter ed. 1961)); see also U.S. Const. art. I, § 4, cl. 1; id. art. II, § 1, cl. 2. The
Constitution also makes clear that it “empowers [only] Congress to pre-empt state
regulations governing” federal elections, not the President. ITCA, 570 U.S. at 8;
accord DSCC, 2026 WL 2168617, at *5 (noting the Constitution affords the President
“no express authority over the conduct of elections”); Ex parte Siebold, 100 U.S. 371,
384 (1879) (recognizing only “the action of Congress,” not the President, may
“supersede[]” contrary State law). Even then, Congress’s authority goes only “so far
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as it is exercised, and no farther.” ITCA, 570 U.S. at 9 (quoting Ex parte Siebold, 100
U.S. at 371).
The Rule, which creates a system under which USPS enrolls voters, tracks
ballot mailings sent to voters, regulates state ballot envelope design, and refuses to
transmit nonconforming ballot mail, has zero congressional authorization. While the
Rule states that USPS is authorized “to adopt, amend, and repeal such rules and
regulations, not inconsistent with this title, as may be necessary in the execution of
[existing USPS] functions,” 91 Fed. Reg. at 54971 (citing 39 U.S.C. § 401(2)), that
grant of statutory authority to carry out USPS’s congressionally prescribed functions
in no way permits it to adopt election regulations that federal agencies have no
inherent or express power to proscribe, see, e.g., Kobach v. Election Assistance
Comm’n, 772 F.3d 1183, 1193–97 (10th Cir. 2014); see also, e.g., ITCA, 570 U.S. at 8;
Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015). 3
B.
The Rule exceeds the Postal Service’s statutory authority.
1.
Ultra vires review is available where the Postal Service
acts in excess of its delegated powers.
Applicants start by distorting the applicable standard of review for agency
ultra vires claims. Congress, they say, exempted the Postal Service from some forms
of ordinary APA review, 39 U.S.C. § 410(a), such that Respondents may prevail only
by identifying “a specific prohibition in a statute” that the Postal Service has violated.
3 To the extent the Court believes review of the Ballot Mail Rule is unavailable under
its precedents on ultra vires agency action, see Appl. 14, the Rule’s blatant violation
of separation-of-powers principles provides an independent reason to invalidate it.
But see infra Argument § I.B.1 (explaining why ultra vires review is available).
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Appl. 14. In their view, it seems, courts would have no authority to enjoin USPS
rulemakings that are so extreme in their unlawfulness (such as a rule permitting
USPS to euthanize obstructive pets) that Congress never contemplated the need for
an explicit proscription. That perverse reading is not the law.
Applicants rely on Nuclear Regulatory Commission v. Texas, 605 U.S. 665
(2025) (“NRC”), which analogized certain ultra vires actions to a “Hail Mary pass,” id.
at 681. But the standard described in NRC polices attempts to “end-run” a review
scheme that Congress designed to funnel challenges elsewhere. Id. It has no purchase
where, as here, Congress did not create an alternative path for review. See Bd. of
Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43–44 (1991). As the
D.C. Circuit—whose precedent Applicants invoke, Appl. 14—has held in the postal
context: “So long as a statutory provision plainly delineates the outer limits of agency
authority and Congress has not expressly precluded judicial review,” courts may set
aside Postal Service action that exceeds those limits. Nat’l Ass’n of Postal Supervisors
v. U.S. Postal Service, 26 F.4th 960, 970–71 (D.C. Cir. 2022); accord N. Air Cargo v.
U.S. Postal Service, 674 F.3d 852, 858 (D.C. Cir. 2012).
Thus, determining whether “a regulation in the [Domestic Mail] Manual was
a valid exercise of the Postal Service’s authority” is the paradigmatic case for “ultra
vires” review of USPS actions. Sears, Roebuck & Co. v. U.S. Postal Service, 844 F.3d
260, 265 (D.C. Cir. 2016). And that principle is grounded in the precedent of this
Court, which has long held that a postal official’s “right to exclude letters, or to refuse
to permit their delivery to persons addressed, must depend upon some law of
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Congress, and if no such law exists, then he cannot exclude or refuse to deliver them.”
Am. Sch. Of Magnetic Healing v. McAnnulty, 187 U.S. 94, 109 (1902).
2.
Title 39 prohibits the Postal Service from implementing
the Ballot Mail Rule.
Even if a “Hail Mary” pass were all Respondents had, Appl. 14—but see
McAnnulty, 187 U.S. at 109—it would be sure to score, as the plain text of Title 39
confirms the legal violation. Congress authorized USPS to “provide postal services,”
39 U.S.C. § 101(a), and to adopt rules “necessary” to carry out those functions, id.
§ 401(2), while forbidding USPS from providing “any nonpostal service,” id. §
404(e)(2). Congress also provided a comprehensive scheme for the categories of mail
that USPS may decline to carry, id. §§ 3001–3018. A rule that exceeds the outer limits
of Title 39 is necessarily “inconsistent with” Congress’s grant of authority, id.
§ 401(2), and a rule that offends Section 404(e) or the nonmailability scheme runs
into the very prohibitions Applicants argue must exist. Because agencies have
“literally . . . no power to act” absent congressional authorization, La. Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 374 (1986), the question under any formulation is the
same: What statute authorizes this Rule? The answer is equally straightforward:
None.
First, the Ballot Mail Rule has nothing to do with the functions that Congress
assigned to USPS. USPS’s governing statute authorizes it to “provide postal services,”
39 U.S.C. § 101(a), to “provide for the collection, handling, transportation, delivery,
forwarding, returning, and holding of mail,” id. § 404(a)(1), and to make regulations
“necessary” to carry out these functions, id. § 401(2). The Rule does not involve the
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provision of “postal services”—instead, it imposes a bevy of non-postal obligations on
third parties, including requiring States to submit to USPS (1) their envelopes for
design review and (2) lists of mail-ballot-eligible voters. The Ballot Mail Rule also
requires action by USPS that has nothing to do with providing “postal services,”
including (1) the operation of an online portal for States to submit lists of voters,
(2) the provision of such lists to the states, and (3) the implementation of an envelopeby-envelope verification process for ballot mail. There is simply no statutory support
for these directives.
In arguing otherwise, Applicants rely heavily on statutory provisions
authorizing USPS to make regulations “necessary in the execution of its functions
under this title” and to the exercise of “other powers incidental, necessary, or
appropriate to the carrying on of its functions or the exercise of its specific powers.”
Appl. 15 (quoting first 39 U.S.C. § 401(2), then id. § 401(10)). This statutory language,
however, does not assign USPS any functions at all, let alone functions related to
mail ballots—it merely allows USPS to make rules and exercise powers to execute
functions that are assigned by some other statutory provision. Applicants’ reliance on
USPS’s rulemaking powers is circular: to invoke it, they must identify a statutorily
defined function for which the Ballot Mail Rule is “necessary,” 39 U.S.C. § 401(2), and
that is precisely what they have been consistently unable to do.
Second, the Ballot Mail Rule purports to create a new category of nonmailable
matter out of whole cloth. But USPS has no freestanding authority to decide not to
transmit vast categories of mail. Title 39 provides an exhaustive list of categories of
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“nonmailable matter” that USPS may not process or transmit. See 39 U.S.C. §§ 3001–
18. Applicants respond that the federal statutory scheme for mail processing is not
comprehensive. See Appl. 22–23 (arguing statutory categories are not “exclusive”).
They are wrong. See Conte & Co., Inc. v. Stephan, 713 F. Supp. 1382, 1386 (D. Kan.
1989) (“There is little doubt that the federal statutory scheme for handling, delivering
and sorting the mails is comprehensive. The United States Postal Service may
determine whether matter is nonmailable under statutory guidelines, and may return
any nonmailable matter to the sender.” (emphasis added)).
Applicants also propose that the Ballot Mail Rule does not create a new
category of nonmailable matter because USPS may deliver mailpieces within that
category if certain conditions are satisfied. See Appl. 22. But whether a type of
mailpiece is “nonmailable” does not turn on whether the entire category of mailpieces
is fully prohibited. Title 39 defines many nonmailable categories conditionally,
providing that certain mail shall not be delivered “unless” a condition is satisfied. See
App. 31a (explaining there is “no distinction between the USPS’s refusal to accept
noncompliant mail ballots and other conditionally nonmailable materials”). What
makes a category “nonmailable” is that USPS will not ultimately carry it—not
whether the prohibition on transmission is absolute or conditional.
Third, USPS’s governing statute forbids it from performing “any nonpostal
service.” 39 U.S.C. § 404(e)(1)–(2). Yet the Rule contemplates USPS offering a
number of nonpostal services, including the maintenance of lists of mail-balloteligible voters and the provision of those lists to the states. See 39 U.S.C. § 102(5)
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(defining “postal service”); see also id. § 404(e)(1) (defining “nonpostal service” as “any
service that is not a postal service”). Applicants do not address this blatant defect in
the Rule, even though it unquestionably places the Rule in violation of a “specific
prohibition in a statute.” Appl. 14 (quoting NRC, 605 U.S. at 681). Housing state voter
lists in a custom portal and adopting rules that restrict who may receive a mail ballot,
all to advance a contentious view of election integrity, have nothing to do with the
“delivery of letters” and are not “ancillary” to mail delivery. 39 U.S.C. § 102(5). By
Applicants’ logic, USPS could require anything of users of the mail—from providing
USPS with lists of voters to installing residential solar panels—so long as it
conditioned mail delivery on compliance. There is no support for such a breathtaking
aggrandizement of USPS power.
3.
Other Postal Service regulations—real and imagined—are
not analogous.
With nothing helpful from Congress, Applicants turn to their own regulatory
history for support. But see Loper Bright Enters. v. Raimondo, 603 U.S. 369, 396
(2024) (holding courts need not defer to agency interpretations of their governing
statutes).
First, Applicants assert the authority to regulate mail “raising unique
operational considerations,” such as “cremated remains” and “replica explosives.”
Appl. 16–17. For reasons that ought to be obvious, mail ballots do not create
operational concerns that are in any way analogous to the ash of cremated human
and animal bodies or look-alike bombs.
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Cremated remains must be labeled as such and sent in secure, sift-proof
containers with cushioning to prevent breakage. See Cremated Remains Packaging
Requirements, 90 Fed. Reg. 9843 (Feb. 19, 2025). These measures ensure that postal
services are not halted for safety concerns every time a powdery substance is
identified in a mail item; that postal services are not obstructed or contaminated by
leaking ashes; and that USPS customers can expect that any cremated remains they
place in the mail will be handled respectfully. Replica explosives, in turn, must be
labeled as such in large font. See Restricting the Mailing of Replica or Inert Explosive
Devices, 75 Fed. Reg. 282 (Jan. 5, 2010). This is because, as USPS explained in its
rulemaking, “[i]n the past, postal operations have been disrupted and facilities have
been evacuated when replica or inert explosive devices have been discovered in the
mail.” Id. “Such evacuations result in unnecessary expense and loss of productivity
to the Postal Service and can jeopardize USPS service commitments.” Id.
Applicants do not suggest that mail ballots have disrupted mail operations at
all, much less in any way remotely similar to cremated remains or replica explosives.
They do not defend the Ballot Mail Rule as necessary to 1) protect the safety of USPS
employees, 2) prevent the contamination of other mail, 3) honor a voter’s expectations
of how their ballot will be handled, or 4) avoid unnecessary evacuations that result
in productivity losses. Nor do they argue that ballot mail will regularly appear
indistinguishable from materials that Congress identified as nonmailable. See 18
U.S.C. § 1716(a) (labeling “all explosives [and] hazardous materials” as “nonmailable
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matter [that] shall not be conveyed in the mails or delivered from any post office”). 4
That defeats Applicants’ regulatory-authority argument: USPS’s interest in
maintaining “an efficient system of collection, sorting, and delivery of the mail,” Appl.
15–16 (quoting USPS v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 123
(1981)), cannot support the regulation of categories of mail that admittedly do not
present “operational issues,” Appl. 17.
Applicants’ characterization of ballot mail as “sensitive,” Appl. 16, makes no
difference. They present no authority suggesting that USPS can impose arbitrary
regulations on “sensitive” mail (a subjective category not defined by statute). And the
only “sensitive” aspect of ballot mail that Applicants identify is the need to “[t]imely
deliver[]” it due to “specific state deadlines for receipt of ballots.” Appl. 17. That is a
great point, just not for Applicants. The Ballot Mail Rule, which requires a novel and
time-intensive processing step for the tens of millions of mail ballots Americans will
cast imminently, can only undermine—not serve—society’s interest in the timely
delivery of those ballots.
Second, Applicants imagine a rule “impos[ing] special design and registration
rules for envelopes used to send solicitations” to retirement communities, which
Applicants propose could mitigate elder-abuse mail scams. Appl. 18. That
Notably, Congress explicitly instructed USPS to regulate the manner in which
hazardous material is to be mailed, 39 U.S.C. § 3018(a) (USPS “shall prescribe
regulations”), and determined that hazardous materials would be nonmailable absent
compliance with those conditions, see id. § 3018(b)(2). USPS’s interpretation of
Sections 401 and 404 as giving it limitless rulemaking authority to condition mailing
would render the detailed hazardous materials statutes surplusage.
4
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hypothetical does them no good. As an initial matter, this made-up rule would need
to be justified by some statutory function, and—as with the Ballot Mail Rule—
Applicants fail to identify one. There is, however, a plausible statutory hook for the
hypothetical: The Deceptive Mail Prevention and Enforcement Act requires “skill
contest or sweepstakes” mail to include a “conspicuously displayed” statement on how
to opt out from all such future mailings. 39 U.S.C. § 3017. Congress specifically
enacted this legislation “because of the deep concern regarding the need to protect
recipients, particularly the elderly, who fall prey to the deceptive information
transmitted in the mailings,” H.R. Rep. No. 106-431, at 13 (1999). To the extent
Applicants believe this statute would not authorize the vague hypothetical they have
in mind (hence their failure to cite it), then the hypothetical rule would, like the Ballot
Mail Rule, be unlawful. And if Applicants do believe this statute provides the relevant
authority, then that distinguishes it from the Rule here, which has nothing to do with
skill contests or sweepstakes.
Even if Applicants could identify a generic anti-fraud function vested in USPS
by Congress, their attempted analogy to the retirement-home hypothetical would still
fail. The hypothetical rule would mitigate fraud, it appears, by warning retirees that
an envelope contains a commercial solicitation and perhaps by banning repeat
violators from the registry of permitted mailers. The Ballot Mail Rule, in contrast, is
entirely untethered to the supposed anti-fraud interests. See App. 45a–46a (finding
“no evidence relating to fraudulent mail voting to support the rushed implementation
of the Final Rule”); see generally 91 Fed. Reg. at 54968–69 (asserting an election
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integrity aim but never explaining if or how the rule advances it). Applicants
repeatedly insist that States retain “full control over who is permitted to vote in
federal elections in their state by U.S. mail.” E.g., Appl. 8. But if States enjoy the
same discretion to send mail ballots to voters under the Ballot Mail Rule as they
would enjoy absent the Ballot Mail Rule, then the Ballot Mail Rule is completely
ineffectual at preventing States from mailing ballots to unauthorized voters.
The anti-fraud rationale is intelligible only if Applicants intend to take action
in some future election to restrict mail voting in States that are deemed to have sent
ballots to unauthorized voters—or to facilitate criminal prosecutions of state officials.
Applicants cannot admit that is their plan, however, because such an extraordinary
action would contradict their protestations that States’ authority to administer their
own elections is entirely undisturbed. The decision to proceed by inference and
innuendo, however, severs the Rule from its only proffered justification. The Ballot
Mail Rule represents an aggressive expansion of USPS authority into entirely new
domains that Congress has never authorized.
II.
The equities and the public interest weigh heavily against a stay.
When the government is a party, the balance-of-equities and public-interest
inquiries merge. Nken v. Holder, 556 U.S. 418, 435 (2009). Here, the scales are onesided. Tens of millions of voters across the country are preparing to vote by mail—
and political parties and candidates have prepared all cycle to encourage that voting
method—but a hurricane of chaos will ensue if the Ballot Mail Rule goes into effect.
Applicants, meanwhile, will suffer no comparable injury if the stay remains in place.
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A.
Nothing in the record plausibly rebuts the evidence that the
Rule will disenfranchise entirely lawful voters.
Applicants are candid about what consequences will follow if “the rule takes
effect for this year’s elections.” Appl. 5. In that scenario, they acknowledge, “there is
a grave risk that States may not have taken the necessary steps to comply,” which
will result in “potentially depriving those States’ citizens of the ability to vote
by mail.” Id. at 5–6 (emphasis added). By their own admission, there is no such risk
of any voter being deprived of the ability to vote by mail if the Ballot Mail Rule
remains enjoined. That disaster will result only if a stay is granted and States have
insufficient time to comply with the new requirements—as is already the case, given
that North Carolina has already sent mail ballots and additional states will do so
imminently. See Appl. 29–30.
Various election officials and voters also attested—without any rebuttal—to
profound concerns that the Rule will prevent eligible voters from voting in November.
See, e.g., Brunton Decl. ¶ 10, California v. USPS, No. 1:26-cv-13917, Doc. No. 4-18
(D. Mass. Aug. 26, 2026); see also, e.g., App. 21a–24a (summarizing evidence of likely
injury to voters). Several States also explained factual realities that make compliance
impossible on this timeline, making it certain that some ballots will not reach voters.
Barber Decl. ¶ 24, California v. USPS, No. 1:26-cv-13917, Doc. No. 4-15 (D. Mass.
Aug. 26, 2026); Michalowski Decl. ¶¶ 37, 57, 59, California v. USPS, No. 1:26-cv13917, Doc. No. 4-24 (D. Mass. Aug. 26, 2026). The district court specifically found
that Applicants and Intervenors offered no reply to those facts—and they fail to do so
on appeal.
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Applicants instead attempt to recharacterize the evidence of burden as merely
a cost of compliance, Appl. 31, but those costs are too steep to overlook and are directly
attributable to the Rule itself. For example, each State must first obtain Postal
Service approval of its ballot and return-envelope designs, 91 Fed. Reg. at 54990–91,
and only then may it upload voter information to the Portal, id. at 54989. The Rule
sets no deadline for approval, and the thousands of postal workers throughout the
country who are expected to implement the new procedures have not been trained.
See Appl. 6 (conceding that training will be necessary to implement the Rule).
Applicants say that design analysts aim to respond to similar requests within two
business days, Appl. 32, but that unrealistic aspiration assumes thousands of ballot
designs will be reviewed and approved within 48 hours, App. 37a, which is no answer
when the consequence of a delay is that the Postal Service will not transmit voters’
ballots, 91 Fed. Reg. at 54979.
Under the Rule, all ballot envelopes mailed by State election officials
themselves must be approved by USPS, and failure at any point in the system can
block ballots from being delivered. See App. 36a–42a. Indeed, the very purpose of the
Rule is to condition access to USPS for ballot delivery on advance federal sign-off on
ballot mail design and the uploading of individual voter records. 91 Fed. Reg. at
54989. When a condition is unmet, the ballots do not go to voters—despite the affected
voters doing nothing wrong. See id.
Remarkably, USPS was told all of this, and yet it did nothing in response.
Hundreds of commenters (including the Democratic Party Amici) identified the risk
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that administrative errors and chaos would lead to ballot mail rejection, and the
agency suggested for months that the concerns would eventually be addressed. See
Stay Appl. 11–12, Trump v. California, No. 26A124 (U.S. July 27, 2026). They never
were. Indeed, USPS’s only response was to “decline[] to conduct, publish, or otherwise
disclose any additional analysis or information concerning the rule or Portal,”
including any anticipated rate of rejection. 91 Fed. Reg. at 54988. USPS now claims
that there is no risk at all (or that the risk is the States’ responsibility alone, see Appl.
5), but there is nothing in the record that even begins to dispute the growing
mountain of evidence that the Rule will result in the effective rejection of entirely
qualified voters’ ballots.
Recent and largely undisputed disclosures illustrate that intolerable risk. On
August 30, a federal employee submitted a whistleblower disclosure to the
Postmaster General through the Office of Senator Richard Blumenthal describing the
Portal’s development as rushed and inadequately tested, and warning of significant
operational problems. See Amicus Br. of Whistleblower Aid 1–3. Alarmingly, the
disclosure describes a batch-level failure mode: if a single record in a submitted batch
fails to match—because (for example) a voter married and changed her name or
moved, or because USPS’s technology malfunctions at any step in the process—the
Postal Service would decline to mail the rest of the batch, which could contain
thousands of ballots, and the State would be expected to take the whole batch back
to cure the one error. Id. This disclosure, while not necessary to credit in order to
deny the Application, comes from a federal government employee with direct
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knowledge, submitted under whistleblower process, and Applicants have offered no
reason to doubt it in any forum.
Finally, the public interest weighs against a stay because harms to
fundamental voting rights in the upcoming election cannot be remedied after the fact,
as courts “routinely deem” imminent injury to voting rights irreparable, League of
Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014); accord
Fish v. Kobach, 840 F.3d 710, 752 (10th Cir. 2016), and because confusion of this
magnitude, introduced during the voting period, “will create a disincentive for
citizens who would otherwise attempt” to cast a ballot, League of Women Voters of
U.S. v. Newby, 838 F.3d 1, 13 (2016).
B.
The Rule is disrupting political parties and candidates
competing in the November election.
The Respondent States and organizations aptly describe how the Ballot Mail
Rule is harming States and nonpartisan interests. Amici further describe what the
Rule does to the critical intermediaries in between—political party committees and
candidates who are spending the final days before the election mobilizing their voters
and supporters, helping them cast their ballots, and working to get themselves
elected.
These fundamental interests depend on being able to say, with reasonable
confidence, that a voter who takes the steps mandated by state law will be able to
cast a mail ballot. The Ballot Mail Rule removes that baseline predicate—and it
accordingly harms Democratic Party Amici and the public’s critical interests in a fair
and lawful electoral process. See, e.g., Bost, 607 U.S. at 77 (holding that candidates’
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“interest in [political power] cannot be severed from their interest in the electoral
process—a process ‘of the most fundamental significance under our constitutional
structure’” (quoting Socialist Workers Party, 440 U.S. at 184); see also NRSC v. FEC,
146 S. Ct. at 2418, 2425; Tex. Democratic Party, 459 F.3d at 586–88.
The D.C. Circuit has already worked through this. In July, it recognized that
a USPS regulation like the Ballot Mail Rule would inflict substantial injuries on the
Democratic Party Amici. DSCC, 2026 WL 2168617, at *4 n.8. The Democratic Party
Amici’s vote-by-mail programs, for example, are keyed to particular deadlines and
particular procedures: when a voter may request a ballot, when the ballot will be
mailed, what the ballot envelope will look like, how a voter tracks their ballot, and
what to do if the ballot does not arrive. Because of the Rule—and only because of the
Rule—every one of those inputs is now contingent on whether USPS and each State
properly executes the design approval protocols and completes all required uploads
of approved voter lists, and then whether USPS approves the ballots at entry points
to the mail.
Further still, when something goes wrong, neither voters nor Amici will have
a sufficient opportunity to ameliorate the issue. A voter whose ballot is not
transmitted or is delayed unbeknownst to them, for example, is not given any
meaningful opportunity to do anything about it—and while parties and campaign
organizations like Democratic Party Amici ordinarily might be able to help by funding
or operating mail-ballot “cure” programs, the Rule likewise offers no means for
organizations to close the gap.
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Once an election occurs, “there can be no do over and no redress.” Newby, 838
F.3d at 9 (citation omitted). That makes these nationwide electoral harms
fundamentally irreparable—and strongly militates against Applicants’ requested
stay.
III.
Applicants have no interest in enforcing the Rule for the November
2026 election.
Applicants’ Sturm und Drang rhetoric about the harm they suffer from the
district court’s injunction masks a basic reality: USPS has processed mail ballots
without the Ballot Mail Rule for decades, and no appreciable harm befell the agency
or the American public. USPS has no interest in enforcing the Rule at all, and it
certainly has no interest in enforcing it for the November 2026 election, where any
attempt to do so will result only in chaos.
A.
There is no public or governmental interest in the enforcement
of an unlawful rule.
Applicants claim that the district court’s injunction inflicts “irreparable harm
on the federal government” by preventing agencies from implementing the Ballot
Mail Rule. Appl. 29–31. But “neither the Government nor the public generally can
claim an interest in the enforcement of an unconstitutional [rule].” ACLU v. Ashcroft,
322 F.3d 240, 250, 251 n.11 (3d Cir. 2003), aff’d, 542 U.S. 656 (2004). 5 And contrary
5 See also New York v. Trump, 171 F.4th 1, 26 (1st Cir. 2026) (inability to take actions
that likely “violate the APA” was not a substantial harm to the government); N.Y.
Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013) (“[T]he Government
does not have an interest in the enforcement of an unconstitutional law.” (alteration
in original) (citation omitted)); Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 2
F.4th 330, 346 (4th Cir. 2021) (the government “is in no way harmed by [the] issuance
of a preliminary injunction which prevents [it] from enforcing restrictions likely to be
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to Applicants’ suggestion, this Court has not already determined that the equities
support a stay of the Ballot Mail Rule. Contra Appl. 29. Last month, the Court stayed
an injunction of the Executive Order because that injunction would “prevent[] the
Postal Service from so much as initiating a rulemaking that could yield a rule
applicable to these States.” Trump v. California, Nos. 26A124 & 26A139, 2026 WL
2473573, at *4 (U.S. Aug. 24, 2026). That is, it provided Applicants an opportunity to
determine whether and how USPS could adopt a lawful rulemaking—not to adopt an
unlawful ruling with impunity.
B.
Purcell counsels against a stay.
This Court has repeatedly recognized that late-breaking federal interference
in State election laws can implicate federalism principles. See Merrill v. Milligan, 142
S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of stay) (recognizing that
a State has an “extraordinarily strong interest” in “avoiding late . . . changes to its
found unconstitutional” (quotation omitted)); All. for Hippocratic Med. v. U.S. Food
& Drug Admin., 78 F.4th 210, 251 (5th Cir. 2023) (“[N]either [a government agency]
nor the public has any interest in enforcing a regulation that violates federal law.”),
rev’d on other grounds, 602 U.S. 367 (2024); EMW Women’s Surgical Ctr., P.S.C. v.
Beshear, No. 17-6151, 2017 WL 11920191, at *4 (6th Cir. Dec. 8, 2017) (“There is no
irreparable harm to a government, however, when it is enjoined from enforcing an
unconstitutional statute.”); Am. C.L. Union of Ill. v. Alvarez, 679 F.3d 583, 590 (7th
Cir. 2012) (the government has no legitimate interest in enforcing a law “that is
probably unconstitutional”); Doe v. Kelly, 878 F.3d 710, 718 (9th Cir. 2017) (“[T]he
government suffers no harm from an injunction that merely ends unconstitutional
practices and/or ensures that constitutional standards are implemented.” (internal
quotation marks and citation omitted)); Pryor v. Sch. Dist. No. 1, 99 F.4th 1243, 1254
(10th Cir. 2024) (“A governmental interest in upholding a mandate that is likely
unconstitutional does not outweigh a movant’s interest in protecting his
constitutional rights.”); Honeyfund.com Inc. v. Governor, 94 F.4th 1272, 1283 (11th
Cir. 2024) (“[T]he government has no legitimate interest in enforcing an
unconstitutional law.” (internal quotation marks and citation omitted)).
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election laws and procedures” imposed by the federal government). This concept,
sometimes referred to as the Purcell principle, protects States’ interests against
disruptive federal interference in election regimes. See Purcell, 549 U.S. 1.
Here, the Purcell principle supports the district court’s injunction—not
Applicants’ requested stay. The principle recognizes that last-minute federal
meddling with election administration can be profoundly disruptive because
“candidates, election officials, and voters have relied on the rules in place” before the
changes. Malliotakis v. Williams, 146 S. Ct. 809, 811 (2026) (Alito, J., concurring in
grant of stay). Thus, it is the States—and Amici and voters—who have a powerful
interest in maintaining the mail voting rules that are currently in place—rules that
do not include compliance with intrusive USPS regulations. By contrast, under the
federalism principles this Court has articulated, Applicants can have no legitimate
interest in eleventh-hour interference with those rules. See DSCC, 2026 WL 2168617,
at *6 (“If the federal agencies . . . were to attempt to impose [the E.O.’s] massive
changes on the States’ voting systems on the threshold of the upcoming election,” an
injunction would uphold “federalism [and] reliance interests because the injunction
would preserve the States’ existing electoral status quo.”). The Purcell principle thus
supplies an additional reason to reject Applicants’ stay request.
CONCLUSION
The Application should be denied.
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September 9, 2026
Respectfully submitted,
/s/ Marc E. Elias
MARC E. ELIAS
Counsel of Record
LALITHA D. MADDURI
JACOB D. SHELLY
MAX ACCARDI
KEVIN R. KOWALEWSKI
ELIAS LAW GROUP LLP
250 Massachusetts Ave NW, Suite 400
Washington, D.C. 20001
Tel.: (202) 948-1135
TYLER L. BISHOP
ELIAS LAW GROUP LLP
1700 Seventh Ave, Suite 2100
Seattle, Washington 98101
Tel.: (202) 948-1135
Counsel for DSCC, DCCC, Democratic National Committee,
and Democratic Governors Association
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.