Amicus Curiae Brief — Department of Homeland Security, et al., Applicants v. League of Women Voters, et al.

No. 26A308

______________________________________________________________________________

IN THE

Supreme Court of the United States

______________________________________________________________________________

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

Applicants,

v.

LEAGUE OF WOMEN VOTERS, et al.,

Respondents.

BRIEF OF AMICI CURIAE DSCC AND CURRENT U.S. SENATORS AND

SENATE CANDIDATES IN OPPOSITION TO THE APPLICATION FOR A

STAY OF THE FINAL JUDGMENT BY THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA

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

CHRISTOPHER D. DODGE

MAX C. ACCARDI

ELIAS LAW GROUP LLP

250 Massachusetts Ave NW, Suite 400

Washington, D.C. 20001

Tel.: (202) 948-1135

Counsel for DSCC and U.S. Senators Charles “Chuck” Schumer, Angela Alsobrooks,

Tammy Baldwin, Michael Bennet, Richard Blumenthal, Lisa Blunt Rochester, Cory

Booker, Christopher Coons, Catherine Cortez Masto, Tammy Duckworth, Richard

Durbin, John Fetterman, Kirsten Gillibrand, Margaret Hassan, Martin Heinrich,

Mazie Hirono, Tim Kaine, Mark Kelly, Amy Klobuchar, Ben Ray Luján, Edward

Markey, Jeff Merkley, Patty Murray, Alex Padilla, Gary Peters, Jack Reed, Jacky

Rosen, Brian Schatz, Adam Schiff, Jeanne Shaheen, Tina Smith, Chris Van Hollen,

Mark Warner, Elizabeth Warren, Peter Welch, Sheldon Whitehouse, and Ron Wyden

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE................................................................................. 1

INTRODUCTION .......................................................................................................... 3

ARGUMENT .................................................................................................................. 5

I.

The Application asserts “unheralded” executive power over elections

that Congress has deliberately declined to grant the President. ...................... 5

II.

The merits lopsidedly favor Respondents. ....................................................... 10

III.

A.

Section 1373 is not a get-out-of-jail-free card for DHS. ........................ 11

B.

Modified SAVE violates the nation’s privacy laws. .............................. 15

1.

The SAVE overhaul violated the confidentiality

provisions of the Social Security Act........................................... 15

2.

The SAVE overhaul violated substantive and procedural

protections of the Privacy Act. .................................................... 17

The equities and public interest cut strongly against the Applicants. ........... 23

CONCLUSION............................................................................................................. 25

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TABLE OF AUTHORITIES

Page(s)

CASES

AFGE v. OPM,

786 F. Supp. 3d 647 (S.D.N.Y. 2025) ..................................................................... 24

Ames v. DHS,

861 F.3d 238 (D.C. Cir. 2017) ................................................................................ 20

Arcia v. Fla. Sec’y of State,

772 F.3d 1335 (11th Cir. 2014) .............................................................................. 25

Arizona v. Inter Tribal Council of Ariz., Inc.,

570 U.S. 1 (2013) ...................................................................................................... 2

Bartel v. FAA,

725 F.2d 1403 (D.C. Cir. 1984)............................................................................... 19

Bell v. Marinko,

367 F.3d 588 (6th Cir. 2004) .................................................................................. 25

Biden v. Nebraska,

600 U.S. 477 (2023) .................................................................................................. 8

Bost v. Ill. State Bd. of Elections,

607 U.S. 71 (2026) .................................................................................................... 1

Bowen v. Massachusetts,

487 U.S. 879 (1988) ................................................................................................ 18

Bowen v. Mich. Acad. of Fam. Physicians,

476 U.S. 667 (1986) ................................................................................................ 17

Branch v. Smith,

538 U.S. 254 (2003) ................................................................................................ 11

Britt v. Naval Investigative Serv.,

886 F.2d 544 (3d Cir. 1989) .................................................................................... 20

City & County of San Francisco v. Barr,

965 F.3d 753 (9th Cir. 2020) .................................................................................. 13

City of Chicago v. Barr,

961 F.3d 882 (7th Cir. 2020) .................................................................................. 13

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City of Philadelphia v. Sessions,

309 F. Supp. 3d 289 (E.D. Pa. 2018) ...................................................................... 12

Ctr. for Taxpayer Rts. v. IRS,

No. 26-5006, 2026 WL 2635380 (D.C. Cir. Sep. 8, 2026) ...................................... 24

Doe v. Chao,

540 U.S. 614 (2004) .......................................................................................... 17, 23

Doe v. Stephens,

851 F.2d 1457 (D.C. Cir. 1988)......................................................................... 19, 21

DSCC v. Trump,

2026 WL 2168617 (D.C. Cir. July 28, 2026) ............................................................ 2

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) .......................................................................................... 11, 14

FAA v. Cooper,

566 U.S. 284 (2012) .................................................................................... 17, 18, 23

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .................................................................................................. 7

Gadelhak v. AT&T Servs.,

950 F.3d 458 (7th Cir. 2020) .................................................................................. 23

Ill. Bd. of Elections v. Socialist Workers Party,

440 U.S. 173 (1979) .................................................................................................. 1

Learning Res., Inc. v. Trump,

607 U.S. 229 (2026) .............................................................................................. 7, 8

LULAC v. Exec. Off. of the President,

818 F. Supp. 3d 34 (D.D.C. 2026) .................................................................... 19, 22

LULAC v. Exec. Off. of the President,

780 F. Supp. 3d 135 (D.D.C. 2025) ........................................................................ 10

Mach Mining, LLC v. EEOC,

575 U.S. 480 (2015) ................................................................................................ 17

Maracich v. Spears,

570 U.S. 48 (2013) .................................................................................................. 21

Medina v. Planned Parenthood S. Atl.,

606 U.S. 357 (2025) ................................................................................................ 14

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Mi Familia Vota v. Fontes,

129 F.4th 691 (9th Cir. 2025) ................................................................................. 25

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................................................................ 14

NLRB v. SW Gen., Inc.,

580 U.S. 288 (2017) ................................................................................................ 13

NRSC v. FEC,

146 S. Ct. 2404 (2026) .............................................................................................. 1

Ohio v. EPA,

603 U.S. 279 (2024) ................................................................................................ 15

Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.,

324 U.S. 806 (1945) ................................................................................................ 22

Rodriguez v. SSA,

118 F.4th 1302 (11th Cir. 2024) ....................................................................... 16, 17

Swenson v. USPS,

890 F.2d 1075 (9th Cir. 1989) ................................................................................ 20

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ................................................................................................ 23

United States v. California,

921 F.3d 865 (9th Cir. 2019) .................................................................................. 12

United States v. Novak,

476 F.3d 1041 (9th Cir. 2007) ................................................................................ 13

United States v. Sukhtipyaroge,

1 F.4th 603 (8th Cir. 2021) ..................................................................................... 25

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .................................................................................................. 3

Watson v. Republican Nat’l Comm.,

146 S. Ct. 2165 (2026) .............................................................................................. 6

West Virginia v. EPA,

597 U.S. 697 (2022) .................................................................................. 2, 4, 7, 8, 9

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CONSTITUTION

U.S. Const. art. II, § 3 .................................................................................................... 6

STATUTES

5 U.S.C. § 552a ....................................................................................... 9, 18, 19, 21, 22

5 U.S.C. § 706 ............................................................................................................... 23

8 U.S.C. § 1324a ..................................................................................................... 13, 14

8 U.S.C. § 1373 ................................................................................................... 4, 11, 15

18 U.S.C. §§ 1030, 1702 ............................................................................................... 14

42 U.S.C. § 1306 ........................................................................................................... 10

42 U.S.C. § 1320b-7.................................................................................................. 4, 10

42 U.S.C. § 405 ................................................................................. 5, 10, 15, 16, 20, 21

52 U.S.C. § 20507 ......................................................................................................... 25

Food, Agriculture, Conservation, and Trade Act of 1990,

Pub. L. No. 101-624, 04 Stat. 3359 ............................................................................. 10

Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896................................................ 9

Computer Matching and Privacy Protection Act of 1988, Pub. L. No. 100-503, 102

Stat. 2507 ..................................................................................................................... 19

REGULATIONS

Exec. Order No. 14248: Preserving and Protecting the Integrity of American

Elections, 90 Fed. Reg. 14005 (Mar. 28, 2025) ............................................................. 6

Exec. Order No. 14399: Ensuring Citizenship Verification and Integrity

in Federal Elections, 91 Fed. Reg. 17125 (Apr. 3, 2026) .............................................. 7

Privacy Act of 1974; System of Records, 90 Fed. Reg. 50879 (Nov. 12, 2025) ........... 20

OTHER AUTHORITIES

2 J. Story, Commentaries on the Constitution of the United States (1833) ............... 8

H.R. 22, 119th Cong. (2025) .......................................................................................... 7

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H.R. 7300, 119th Cong. (2026) ...................................................................................... 7

H.R. 8281, 118th Cong. (2024) ...................................................................................... 7

H.R. 9494, 118th Cong. (2024) ...................................................................................... 7

S. 128, 119th Cong. (2025)............................................................................................. 7

S. 1383, 119th Cong. (2026)........................................................................................... 7

S. 3752, 119th Cong. (2026)........................................................................................... 7

S. 4292, 118th Cong. (2024)........................................................................................... 7

S. Amdt. 5414 to S. Con. Res. 33, 119th Cong. (2026).................................................. 7

S. Comm. on Gov’t Operations & H.R. Comm. on Gov’t Operations, 94th Cong.,

Legislative History of the Privacy Act of 1974: Source Book on Privacy 884 (Comm.

Print 1976) ..................................................................................................................... 5

The Federalist No. 59 (Alexander Hamilton)................................................................ 8

U.S. Department of Justice, Overview of the Privacy Act of 1974 (2020),

https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/introduction ... 9

W. Olson, “We Should Take Over the Voting,” Cato Inst. (Feb. 3, 2026),

https://www.cato.org/blog/we-should-take-over-voting-nationalize-voting ................. 4

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INTERESTS OF AMICI CURIAE

Amici curiae are the Democratic Senatorial Campaign Committee (“DSCC”)

and current U.S. Senators and candidates for U.S. Senate. See Appendix (identifying

Amici). 1 DSCC’s mission is to elect Democratic candidates to the U.S. Senate. DSCC’s

members include Democratic Senators and candidates for U.S. Senate across the

country. Beyond its formal membership, DSCC’s constituency includes voters

throughout the nation. Collectively, Amici and their constituents include Democratic

Senators, candidates for U.S. Senate, and voters in all 50 States.

With voting already underway in the 2026 federal elections, Amici are fully

engaged in supporting their candidates, running their campaigns, and mobilizing

voters. They are executing campaign strategies built around each State’s unique

election and voter registration rules, including the rules governing voter

qualifications, and they are assisting voters who seek to register and cast ballots.

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 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 “intertwined

relationship of parties and their candidates”).

1 Pursuant to 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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To achieve their missions, Amici require clear, stable election rules, especially

at this late stage in the election calendar. That includes with respect to the role played

by federal agencies in determining who may vote. Over the past 18 months, the

Executive Branch has claimed to have discovered a vast trove of previously

“unheralded” powers in the realm of election administration, West Virginia v. EPA,

597 U.S. 697, 722–23 (2022), a domain in which the Constitution assigns authority to

States in the first instance and to Congress in the last, see Arizona v. Inter Tribal

Council of Ariz., Inc., 570 U.S. 1, 8 (2013), and no authority to the Executive Branch,

see DSCC v. Trump, 2026 WL 2168617, at *5 (D.C. Cir. July 28, 2026). Some Amici

currently have related issues on appeal before the D.C. Circuit, see DNC v. Trump,

No. 25-5476 (D.C. Cir.) (consolidated), and are presently litigating the President’s

most recent election-related Executive Order—E.O. 14399—in the District of

Columbia before Judge Nichols, see DSCC v. Trump, No. 1:26-cv-1114 (D.D.C.).

These unprecedented assertions of executive power in the election sphere have

included novel uses for personal information of millions of Americans—including

Amici’s members and voters—in ways never authorized by Congress, as well as

efforts to force the production of similar data held by the States. In this case,

Applicants say that a decades-old immigration statute silently eviscerated several

core federal privacy protections for American citizens, authorizing the Department of

Homeland Security to funnel the Social Security Administration’s entire Social

Security database into DHS’s Systematic Alien Verification for Entitlements system

(“SAVE”) to offer a brand new “voter verification” system covering U.S.-born citizens.

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Congress has never authorized the creation of such a national “voter verification”

database, and SSA itself has warned its records are outdated and not suitable for

such a purpose. The consequences of haphazardly mashing together a longstanding

system for determining an immigrant’s legal status (SAVE) and SSA’s database with

personal information on millions of Americans (Numident) were predictable: SSA’s

dispersion of unreliable citizenship data led election officials to “revoke[] or threaten[]

to revoke voter registrations based on . . . unauthorized and inaccurate disclosures,”

causing significant harm and disruption to impacted voters. App. 27a. The record

below “abounds” with undisputed evidence of such harm, id., which naturally

includes voters who plan to support Amici in the forthcoming elections.

Amici have therefore increasingly been compelled to seek judicial relief on

behalf of their members, constituents, and voters. In this case, if the Application is

granted, Amici are likely to suffer irreparable harm over the coming weeks and

months, as their members and supporters are subject to unreliable SAVE checks.

INTRODUCTION

This Application concerns the latest in a series of “unheralded power[s]” over

election administration that the Executive Branch “claims to [have] discover[ed] in a

long-extant statute.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).

Applicants assert that Congress has authorized the creation of “a centralized federal

database that contains the private information of United States citizens, including

Social Security numbers.” App. 1a. But Applicants do not point to any recent

enactment of Congress authorizing the creation of such a novel and far-ranging

database. To the contrary, Congress has steadfastly refused to advance such

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measures, notwithstanding the President’s consternation. Applicants thus point to a

40-year-old enactment requiring federal agencies to implement a system that permits

state officials to verify an immigrant’s legal status for purposes of determining

eligibility for certain benefits programs, see 42 U.S.C. § 1320b-7(d), and a 30-year-old

rule that DHS respond to inquiries about a person’s “citizenship or immigration

status.” 8 U.S.C. § 1373(c). Neither of these longstanding enactments “conveniently

enable[]” Applicants to erect a national voter verification database that Congress has

refused to create “multiple times.” West Virginia, 597 U.S. at 731. Instead, DHS’s

SAVE overhaul reflects an unlawful effort to implement the President’s command to

“nationalize the voting” and “take over the voting” at the federal level. 2

Amici submit this brief to foreground two points (among many) that support

denying the Application. First, this Court’s major questions precedent requires

exercising caution before endorsing Applicants’ claim that “vague language” in “longextant” statutes grants the Executive newfound powers. West Virginia, 597 U.S. at

721. That caution is particularly warranted here because: (1) the Constitution assigns

the President no power over elections; (2) Congress has steadfastly refused to grant

the very power he now claims; (3) the expansion of SAVE is a question of political

significance; and (4) that expansion comes in the context of the emerging (and

disturbing) trend of executive overreach in the realm of election administration.

Second, and relatedly, DHS’s effort to construct an unauthorized and shoddy national

voter-verification database raises the precise fears that led Congress to enact the

W. Olson, “We Should Take Over the Voting,” Cato Inst. (Feb. 3, 2026),

https://www.cato.org/blog/we-should-take-over-voting-nationalize-voting.

2

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privacy laws at issue, reinforcing the need for strict adherence to their requirements.

The Application also suffers from terminal infirmities on the merits. The SAVE

overhaul violates the Social Security Act, which requires SSA to keep Americans’

social security numbers “confidential.” 42 U.S.C. § 405(c)(2)(C)(viii)(I). It also violates

the Privacy Act many times over. Indeed, that Act was enacted to make it “legally

impossible for the Federal Government . . . to put together anything resembling a

‘1984’ personal dossier on a citizen.” S. Comm. on Gov’t Operations & H.R. Comm. on

Gov’t Operations, 94th Cong., Legislative History of the Privacy Act of 1974: Source

Book on Privacy 884 (Comm. Print 1976) (hereinafter “Source Book on Privacy”).

The equities likewise foreclose relief. Applicants concede that two circuits (plus

the motions panel) have held that the NVRA’s quiet period forbids using SAVE for

systematic voter removals at this point in the election calendar. And the prior version

of SAVE, which has been relied on for nearly 40 years without issue, remains

operative. Accordingly, Applicants present no need for urgent or extraordinary relief.

In contrast, uncontested record evidence reveals the harm that the unlawful,

modified version of SAVE will inflict on Respondents, the public, and Amici. The

equities therefore support denying the Application too.

ARGUMENT

I.

The Application asserts “unheralded” executive power over elections

that Congress has deliberately declined to grant the President.

To start, Amici address two threshold matters. First, federalism principles and

this Court’s major questions doctrine decisions compel denial of the Application,

which asks—in an extraordinary posture—for this Court to bless an unprecedented

-5-

assertion of executive authority over the country’s elections. This power grab does not

occur in a vacuum; it is part of the President’s broader attempt to, in his own words,

“nationalize the voting” and “take over the voting” at the federal level. Supra n.2.

Second, caution toward the Executive Branch’s assertion of authority is further

necessitated by the laws Congress did enact in this field, namely privacy laws

animated by the precise issue here: the unsanctioned construction of a nationalized

database with information on millions of Americans.

A. In our federal system, “the Constitution lodges power over congressional

elections in state legislatures ‘primarily’ and in Congress ‘ultimately.’” Watson v.

Republican Nat’l Comm., 146 S. Ct. 2165, 2170 (2026) (quoting The Federalist No. 59,

at 362 (Alexander Hamilton) (C. Rossiter ed., 1961)). Thus, when it comes to election

administration, the President has no prescribed constitutional role beyond faithfully

carrying out the enactments of Congress. See U.S. Const. art. II, § 3.

Since President Trump resumed office, Congress has passed no significant new

election laws. Even so, the Trump Administration has announced a host of new

intrusions into the nation’s election machinery, including attempting to: mandate

changes to a federal registration form without required input from state officials;

place new requirements on ballots for military and overseas voters; enforce a federal

election day ballot receipt deadline this Court found was, in fact, non-existent; use

the Postal Service as a sieve for determining who may vote by mail; and require DHS

create state-by-state citizenship lists. See Exec. Order No. 14248: Preserving and

Protecting the Integrity of American Elections, 90 Fed. Reg. 14005 (Mar. 28, 2025);

-6-

Exec. Order No. 14399: Ensuring Citizenship Verification and Integrity in Federal

Elections, 91 Fed. Reg. 17125 (Apr. 3, 2026).

Each of these attempts to alter the nation’s election architecture at the federal

level comes “unheralded” by any act of Congress. West Virginia, 597 U.S. at 724.

When it comes to the present issue—the Executive’s effort to construct a national

voter verification database—“Congress ha[s] conspicuously and repeatedly declined

to enact” similar measures. Id. That is not for want of opportunity: Congress has

serially declined to enact legislation that would require the “heads of Federal

departments and agencies”—like DHS and SSA—to “share information with each

other with respect to an individual” subject to a mandatory SAVE check. S. 1383,

119th Cong. § 2 (2026). 3 “Given these circumstances, there is every reason to ‘hesitate

before concluding that Congress’ meant to confer” on Applicants “the authority [they]

claim[]” in the present case—namely, to require the inter-agency data-sharing that

failed bills like S. 1383 were meant to authorize. West Virginia, 597 U.S. at 725

(quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)).

While the Court most often deploys the major-questions doctrine in areas of

regulatory overreach, it has recognized that it applies with equal force where an

agency claims newfound power of significant “political consequence[].” Learning Res.,

Inc. v. Trump, 607 U.S. 229, 246 (2026) (plurality op.). Justice Gorsuch has explained,

3 See also S. Amdt. 5414 to S. Con. Res. 33, 119th Cong. (2026) (similar); S. 3752,

119th Cong. (2026) (similar); S. 128, 119th Cong. (2025) (similar); H.R. 7300, 119th

Cong. (2026) (similar); H.R. 22, 119th Cong. § 2 (2025) (similar); see also H.R. 8281,

118th Cong. (2024) (similar); S. 4292, 118th Cong. § 2(f) (2024) (similar); H.R. 9494,

118th Cong. (2024) (similar).

-7-

for example, the principle applies whenever “an agency claims the power to resolve a

matter of great ‘political significance,’” to “end an ‘earnest and profound debate across

the country,’” as well as “when an agency seeks to ‘intrude into an area that is the

particular domain of state law.’” West Virginia, 597 U.S. at 743–45 (Gorsuch, J.,

concurring) (citation modified). This case reflects all three of these “triggers.” Id.

Caution against crediting novel assertions of power based on old statutory

authority is especially warranted in the election realm. Not only does “the President

enjoy[] no inherent authority” to administer elections, Learning Res., 607 U.S. at 241,

but the Founders intentionally diffused “the regulation of elections” between the

States and Congress to avoid centralized control, The Federalist No. 59 (Alexander

Hamilton); accord 2 J. Story, Commentaries on the Constitution of the United States

§§ 814–26 (1833). The Application thus reflects an instance where “one branch of

government [is] arrogating to itself power belonging to another.” Biden v. Nebraska,

600 U.S. 477, 503 (2023). This Court should thus apply the same rigorous lens it has

deployed in recent cases involving self-aggrandizing claims of Executive power.

B. The Application also implicates the very fears Congress sought to address

when it began passing federal privacy protection laws in the 1970s. Congress enacted

the Privacy Act of 1974 in the wake of the Watergate scandal, in response to nearly a

decade of proposals from the Executive Branch seeking Congress’s authorization to

consolidate different agencies’ records systems into a single, searchable system. See

Source Book on Privacy 163–64. Watergate, other records abuses, and the growing

power of computers showed Congress the “dangers” of this kind of “centralized” effort

-8-

absent authorization by law and adherence to procedure, and it therefore took

measures to prohibit any sort of centralized data source that could serve as a “‘1984’

personal dossier on [every] citizen.” Id. at 884; see id. at 806–84. The Department of

Justice’s own handbook on the Act explains that Congress viewed the creation of such

a database as an “existential threat to American democracy.” 4

The Privacy Act passed with overwhelming majorities in Congress and codified

“strict” commands that information held or created by the federal government about

individual Americans for one purpose cannot be used for another purpose just out of

expedience. Source Book on Privacy 858–68, 987–94 (reprinting Analysis of House

and Senate Compromise Amendments to the Federal Privacy Act, 120 Cong. Rec.

40,405–09, 40,881–83 (1974)); see 5 U.S.C. § 552a(b) (barring disclosure to another

agency absent consent or specific exception); id. § 552a(e) (specifying duties of

agencies with respect to systems of records). That is the precise issue here.

The text and history of the Act show that Congress understood Social Security

numbers to be a matter of particular concern. See Privacy Act of 1974, Pub. L. No. 93579, § 5(c)(1)(C), 88 Stat. 1896, 1906 (directing study of the use of Social Security

numbers “to gain access to, integrate, or centralize information systems and files”).

When it later amended the Social Security Act, Congress put into place

confidentiality protections that track the Privacy Act and embody its commitment to

protecting individual privacy. Indeed, each time Congress has authorized a use of the

Social Security number, it has paired the authorization with a confidentiality

U.S. Department of Justice, Overview of the Privacy Act of 1974 (2020),

https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/introduction.

4

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requirement—including most directly in the 1990 provision at issue here. See 42

U.S.C. § 405(c)(2)(C)(viii)(I) (SSNs “shall be confidential”); Food, Agriculture,

Conservation, and Trade Act of 1990, Pub. L. No. 101-624, §§ 1735(b), 2201(c), 104

Stat. 3359, 3792, 3952 (authorizing use of SSNs to administer food-stamp and cropinsurance programs, again providing they “shall be confidential” otherwise); see also

42 U.S.C. § 1306(a) (prohibiting certain disclosures of SSNs).

The Court should also evaluate the Application against the lack of clear

statutory authorization for DHS’s dramatic expansion of SAVE—indeed, in the face

of congressional refusal to enact such an expansion. Congress created SAVE to allow

state and local officials to verify whether certain immigrants could “apply[] for certain

public benefits,” App. 105a; see also 42 U.S.C. § 1320b-7(d). The Court should look

askance at DHS’s attempt to expand that tool to purportedly “identify unqualified

voters” using SSA data that the agency itself admits is not fit for such a purpose.

LULAC v. Exec. Off. of the President, 780 F. Supp. 3d 135, 203–04 (D.D.C. 2025).

II.

The merits lopsidedly favor Respondents.

This case offers no shortage of pathways to find that Applicants have failed to

show they are likely to prevail on the merits. The district court found that the

modified SAVE database violates at least four statutory prohibitions, even while

declining to reach additional constitutional grounds. See App. 43a–45a, 50a–65a. The

D.C. Circuit, in turn, determined Respondents’ Social Security Act claim was alone

sufficient to sustain the injunction, both because Applicants “forfeited” their key

arguments on that claim and because their arguments lacked merit. App. 112a–30a.

In view of this host of obstacles, Applicants grasp at 8 U.S.C. § 1373, which

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they contend erases any law that proves a hindrance to responding to inquiries from

state and local officials about the citizenship status of a given individual. But they

cite no authority supporting their interpretation or assigning Section 1373 such

reach. Applicants are thus left to square their actions with the Social Security Act

and Privacy Act—an impossible task given that the modified SAVE database

contravenes several explicit statutory prohibitions in those laws.

A.

Section 1373 is not a get-out-of-jail-free card for DHS.

Applicants’ lead argument is that 8 U.S.C. § 1373 gives DHS carte blanche to

violate any other law in the course of its efforts to “verify citizenship status.” Appl.

18. It does not. Section 1373(c) required DHS’s predecessor agency to “respond to an

inquiry . . . seeking to verify or ascertain the citizenship or immigration status of any

individual within the jurisdiction of the agency” by “providing the requested

verification or status information.” 8 U.S.C. § 1373(c). Sections 1373(a) and (b), in

turn, remove certain limited obstacles to complying with this mandate.

Applicants contend these provisions exempt DHS from the Privacy Act and

Social Security Act, but the text of § 1373 and the broader statutory context show the

opposite. Applicants’ argument faces strong headwinds from the jump: this Court

applies a “strong presumption that repeals by implication are disfavored and that

Congress will specifically address pre-existing law when it wishes to suspend its

normal operations in a later statute.” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510

(2018) (citation modified). Section 1373 says nothing about the Privacy Act or Social

Security Act, so it can override those Acts only if it is in “irreconcilable conflict” with

them. Branch v. Smith, 538 U.S. 254, 273 (2003) (plurality op.) (citation omitted).

- 11 -

Thus begins Applicants’ fruitless search for a conflict between § 1373 and the

Acts at issue. They start with Section 1373(c), arguing that, “[o]n the district court’s

reading, . . . the Privacy Act and Social Security Act effectively prevent the

government from complying with” its obligations under that provision. Appl. 21. That

is demonstrably wrong. DHS had been fulfilling Section 1373(c)’s obligation to

“respond to an inquiry” with “the requested verification or status information” for

decades with the original SAVE—a system left intact by the injunction. That system

enables officials to “access the immigration status of individuals” based on “records

maintained by DHS” and other immigration agencies without transgressing other

enactments of Congress. App. 10a. Nothing in Section 1373(c) obliges DHS to hunt

for additional records maintained by other agencies or authorizes “disclosure of

information that another statute . . . specifically makes confidential.” App. 121a.

Applicants then turn to Sections 1373(a) and (b), which, they claim, “specify

that Section 1373 applies ‘notwithstanding any other provision’” of law. Appl. 22. But

they gloss over the actual statutory text, which applies only to restrictions on sharing

“information regarding the citizenship or immigration status of an individual.”

8 U.S.C. § 1373(a)–(b). That category of information encompasses only “a person’s

legal classification under federal law,” not “broader swaths of information.” United

States v. California, 921 F.3d 865, 891–92 (9th Cir. 2019), cert. denied, 141 S. Ct. 124

(2020); see also City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 333 (E.D. Pa.

2018) (explaining this text refers to “an individual’s category of presence in the United

States”). Indeed, such classification “is the only information to which § 1373 extends.”

- 12 -

City & County of San Francisco v. Barr, 965 F.3d 753, 764 (9th Cir. 2020), cert.

dismissed, 592 U.S. 1307 (2021); cf. City of Chicago v. Barr, 961 F.3d 882, 897 (7th

Cir. 2020). Modified SAVE involves (among other things) disclosing Social Security

numbers, which are plainly not a “person’s legal classification under federal law,” id.,

and thus not within the ambit of Sections 1373(a) or (b).

Applicants harp on the purported breadth of the “notwithstanding” language

in these provisions, but they fail to point to any “clash” of law that triggers the

provisions. NLRB v. SW Gen., Inc., 580 U.S. 288, 301 (2017) (citation omitted). Such

clauses typically only have effect where there is “an irreconcilable conflict such that

the two statutes dictate opposite results as to a particular matter.” United States v.

Novak, 476 F.3d 1041, 1052 (9th Cir. 2007) (en banc). There is no such conflict here.

Section 1373 prevents certain types of interference with the sharing of information

“regarding the citizenship and immigration status” of individuals. But the district

court and D.C. Circuit premised their rulings on improper disclosure of information

other than that “regarding the citizenship and immigration status” of individuals.

The “notwithstanding” language does not broaden the scope of Section 1373(c) or

magically erase laws—like the Privacy and Social Security Acts—protecting different

categories of information from disclosure.

A separate structural aspect of Section 1373 further compels this reading. In

the very same statute in which Congress enacted Section 1373, it also enacted a

provision regarding employment verification. That provision, codified at 8 U.S.C.

§ 1324a note, “expressly authorized SSA to participate in an employment-verification

- 13 -

system by matching names and SSNs against its records; specified what information

SSA could return; and restricted how that information could be used.” App. 121a

(citation omitted). Congress knew exactly how to exempt a statutory command from

the requirements of the Social Security Act and Privacy Act, and it “expressly did so

elsewhere in the same statute.” Id. The fact that Section 1373 nowhere mentions

either Act is strong evidence that Congress did not intend Section 1373 to exempt

DHS from those Acts. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 544 (2012).

*

*

*

Applicants’ reading of Section 1373 should give pause. They claim, in essence,

that Section 1373(c) compels them to assemble and disseminate citizenship- and

immigration-related data from any source and by any means necessary, but see

Medina v. Planned Parenthood S. Atl., 606 U.S. 357, 368 (2025) (“[N]o statute pursues

any single purpose at all costs.” (citation modified)), and to ignore any law that could

impede their efforts, but see Epic Sys., 584 U.S. at 510 (noting “strong presumption”

that “Congress will specifically address preexisting law when it wishes to suspend its

normal operations in a later statute” (citation modified)). Under Applicants’ reading,

if a person were the subject of an inquiry under Section 1373(c), DHS could kidnap

and interrogate them for information about their citizenship status and—thanks to

the “notwithstanding” clauses in Sections 1373(a) and (b)—no federal or state statute

could prevent DHS from doing so. More prosaically, Applicants’ reading might

authorize hacking the person’s email or unlawfully opening their mail, but see 18

U.S.C. §§ 1030, 1702 (forbidding such behavior). That is not the law.

- 14 -

B.

Modified SAVE violates the nation’s privacy laws.

Applicants’ SAVE overhaul cannot be squared with the statutory privacy

protections Congress has enacted. App. 1a, 43a–66a, 105a–32a. The district court’s

detailed and undisputed factual findings further show that Applicants’ rush to push

the SAVE overhaul out last year flouted safeguards meant to slow down major

system-of-records overhauls, violations that are not yet cured. App. 63a–70a.

To obtain a stay, Applicants must make a strong showing that, among other

things, the SAVE overhaul and its corresponding systems of records notices

(“SORNs”) were not in violation of (1) confidentiality protections of the Social Security

Act, (2) “disclosure” protections of the Privacy Act, and (3) procedural protections of

the Privacy Act. They do not clear any of these gates to success on the merits.

1.

The SAVE overhaul violated the confidentiality provisions

of the Social Security Act.

The Social Security Act provides that Social Security numbers “and related

records that are obtained or maintained by authorized persons pursuant to any

provision of law enacted on or after October 1, 1990, shall be confidential, and no

authorized person shall disclose any such social security account number or related

record.” 42 U.S.C. § 405(c)(2)(C)(viii)(I). Applicants never contended below that

modified SAVE complies with that mandate; they argued only that 8 U.S.C. § 1373

displaces it. App. 110a–32a. For the reasons explained above, both courts below were

right to reject that argument. Supra § II.A.

Applicants’ remaining theories were raised for the first time after judgment,

and that alone should doom their request for extraordinary relief. See Ohio v. EPA,

- 15 -

603 U.S. 279, 298–99 (2024); App. 130a–32a. But their tardy theories also fail on their

own terms. The first is that SSA’s records fall beyond the Act’s confidentiality

requirements because SSA has been issuing numbers since the 1930s, and thus prior

to 1990. Yet Applicants identify no pre-1990 “provision of law” under which Social

Security numbers and the other purported citizenship records SSA transmitted to

DHS here were “obtained or maintained.” 42 U.S.C. § 405(c)(2)(C)(viii)(I). SSA’s

current operations—including as an independent agency—are governed by the Social

Security Act of 1994, which, as the name suggests, was enacted after October 1, 1990.

See Rodriguez v. SSA, 118 F.4th 1302, 1310 (11th Cir. 2024) (rejecting argument that

“the time period that matters” is when SSA first began operating). In other words,

the provisions governing collection and use of Social Security numbers today are laws

post-dating 1990. As the D.C. Circuit recognized, Applicants’ position contradicts

their own assertion that § 1373—enacted in 1996—somehow authorized SSA to

create new records and funnel them to DHS through modified SAVE, because a

statute enacted in 1996 “cannot supply the needed pre-1990 authority” they claim

existed. App. 125a–26a. If that were right, nothing in the statute “would prevent SSA

from publicly releasing any—or even every—SSN in its database.” App. 124a.

Applicants’ next theory—that modified SAVE does not “disclose” anything the

statute protects—fares no better. The record in this case demonstrates how disclosure

occurs between SSA and DHS at both ends of the data-verification process—and that

DHS itself then stores the information for its own additional uses. See App. 126a. On

the front end, whenever a SAVE user (like a local election official) enters a partial

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Social Security number, SSA produces a “match” and then sends DHS the full ninedigit number. That is “plainly a disclosure.” Id. Modified SAVE then produces

additional disclosures of “related” records when SSA confirms or denies the existence

of a match in its own system. App. 54a–61a; see also App. 127a–28a. Applicants

provide no authority to conclude otherwise. See Appl. 30–33. In short, Applicants are

not likely to show that modified SAVE comports with the Social Security Act.

2.

The SAVE overhaul violated substantive and procedural

protections of the Privacy Act.

The Court can reject the Application solely based upon Applicants’ failure to

overcome the Social Security Act. Regardless, the district court’s explanation of why

Respondents are likely to prevail under the Privacy Act is similarly unassailable.

a. Scope of APA review. Applicants begin by advancing the strained

argument that Congress silently eliminated judicial authority under the APA to set

aside agency violations of the Privacy Act, due to a set of narrow “civil remedies” for

violations of some of the Act’s provisions. See Appl. 23–25 (citing 5 U.S.C. §§ 552a(g),

704). This Court has twice construed the Act to mean the opposite. In Doe v. Chao,

the Court reasoned that the Privacy Act’s silence about the availability of equitable

relief is best “explained by the general provisions for equitable relief within” the APA.

540 U.S. 614, 619 n.1 (2004). The Court reiterated the point in FAA v. Cooper,

explaining that the Act “deters” violations of its substantive provisions “by allowing

for injunctive relief under” the APA. 566 U.S. 284, 303 n.12 (2012) (emphasis added).

Applicants also ignore “the strong presumption favoring judicial review” under

the APA. Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (citing Bowen v. Mich.

- 17 -

Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986)); see also Bowen v. Massachusetts,

487 U.S. 879, 903 (1988). Nothing in the Privacy Act evinces a desire to set aside that

presumption. The narrow remedies it supplies are distinct from those a court would

grant under the APA. See 5 U.S.C. § 552a(g)(2)–(3) (providing for orders to “amend”

inaccurate internal records, to “enjoin the agency from withholding the records” from

complainants). Those provisions are records-specific remedies that Section 706’s

authority to “set aside” unlawful agency action might not usually reach. The sensible

implication is that Congress added those remedies to the Privacy Act to ensure

enforcement of those specific provisions—not to displace relief under the APA for the

other specified protections in the Privacy Act. The same is true of the Act’s damages

provisions, which ensure that monetary relief is available when officials “willfull[y]”

violate the Act in a way that produces quantifiable monetary harm. Id. § 552a(g)(4).

Applicants nonetheless insist the Privacy Act supplies a “comprehensive

remedial scheme” that necessarily displaces review. Appl. 23. But they never square

that bare assertion with the “limited relief available” under the Act. Bowen, 487 U.S.

at 901; see also App. 48a n.11 (“Authorizing courts to grant lesser relief for some

violations does not mean that the ordinary set-aside remedy is no longer available for

others . . . .”). Applicants thus fail to show that APA review is unavailable here.

b. Unlawful disclosures. Turning to the merits, the Privacy Act makes it

“unlawful for an agency to disclose a record to another agency”—or to anyone else—

“without the written consent of the person to whom the record pertains.” Cooper, 566

U.S. at 289 n.2 (citing 5 U.S.C. § 552a(b)). This prohibition is broad by design. A

- 18 -

“record” is “any item, collection, or grouping of information about an individual,”

expressly including “the identifying number, symbol, or other identifying particular

assigned to the individual,” 5 U.S.C. § 552a(a)(4), and the Act reaches disclosure “by

any means of communication,” id. § 552a(b). The Act is violated by any

“nonconsensual disclosure of . . . information that has been retrieved from a protected

record.” Bartel v. FAA, 725 F.2d 1403, 1408 (D.C. Cir. 1984). This prohibition reaches

inter-agency disclosures, and not merely disclosure to the public, by design as well:

Congress expressly legislated against the prospect of “formal or de facto national data

banks” assembled from existing records. Source Book on Privacy 168, 217, 884. 5

Applicants do not dispute that modified SAVE facially violates this prohibition,

so they seek to evade it by invoking the “routine use” exception. A “routine use” is

“the use of such record for a purpose which is compatible with the purpose for which

it was collected,” 5 U.S.C. § 552a(a)(7), (b)(3), and a disclosure qualifies only if it is

both compatible in that sense and within the scope of a routine use notice published

by the agency, Doe v. Stephens, 851 F.2d 1457, 1466 (D.C. Cir. 1988); LULAC v. Exec.

Off. of the President, 818 F. Supp. 3d 34, 72 (D.D.C. 2026) (“LULAC III”) (explaining

that agencies cannot invent a new routine use “on the fly”). This Court has not defined

the scope of “compatib[ility]” under the Act, but lower courts have required agencies

to demonstrate “a meaningful degree of convergence” between the purpose behind the

5 Congress later strengthened protections against unauthorized inter-agency record

disclosures, providing that “[n]othing” in the Act “shall be construed” to permit

“establishment or maintenance by any agency of a national data bank that combines,

merges, or links information on individuals maintained” “by other Federal agencies.”

Pub. L. No. 100-503, § 9, 102 Stat. 2507, 2514 (1988).

- 19 -

original collection of a record and the purpose of the subsequent disclosure under the

routine use. Britt v. Naval Investigative Serv., 886 F.2d 544, 549 (3d Cir. 1989); see

also Swenson v. USPS, 890 F.2d 1075, 1078 (9th Cir. 1989); Ames v. DHS, 861 F.3d

238, 240 (D.C. Cir. 2017).

Whatever the precise meaning of “compatib[ility],” Applicants have not made

a strong showing that it is satisfied here. The SSA records that DHS puts to new use

here were “collected” and are “maintained” by SSA because Congress required that

agency to “enumerate” workers, credit their covered “earnings,” and pay out

“benefits.” 42 U.S.C. § 405. A new program seeking to confirm or deny an individual’s

citizenship status to support voter-eligibility determinations by States has no

convergence with that original statutory purpose whatsoever. SSA itself has never

suggested that it collects or maintains such information for citizenship-verification

purposes, never mind for voter-roll maintenance. To the contrary, SSA has repeatedly

warned that its citizenship data is inaccurate, outdated, and must be used only for

its own “program purposes.” SSA AR 103. Unsurprisingly, SSA’s new SORN does not

even purport to make the necessary compatibility determination. SSA’s 2025 SORN

justified the new “Routine Use No. 49” by reference only to 8 U.S.C. § 1373(a), and

not by reference to any convergence or similarity with SSA’s duties to provide for

enumeration and benefits. See Privacy Act of 1974; System of Records, 90 Fed. Reg.

50879, 50883 (Nov. 12, 2025) (reproduced at SSA AR 210). Indeed, the SORN does

not even cite any relevant provision of 42 U.S.C. § 405, even though that statute sets

forth why SSA collected and compiled the relevant records in the first place.

- 20 -

Applicants attempt to duck the “routine use” exception’s compatibility analysis

by describing the purpose of the Social Security numbers at an absurdly high level of

generality. Appl. 26 (citation omitted). According to them, the original purpose of a

Social Security number is simply “to identify a particular individual,” and accordingly

any governmental use of the number to “match” a person to another record is

therefore “compatible” in that general sense. Appl. 26. That assertion is unmoored

from any act of Congress and, in any event, Section 552a(a)(7) does not speak to such

generalized purposes for a covered record; it is an “except[ion]” that reaches only uses

compatible with the original “purpose for which [a record] was collected.” 5 U.S.C.

§ 552a(a)(7). As 42 U.S.C. § 405 confirms, Social Security numbers are collected by

SSA to administer Social Security programs—not to serve as all-purpose identifiers.

Moreover, because the Privacy Act includes “identifying number[s]” within its

definition of “record,” 5 U.S.C. § 552a(a)(4), Applicants’ argument would have the

“routine use” exception swallow that definition, but see Stephens, 851 F.2d at 1466

(recognizing it is “well-established” that agencies “may not utilize the ‘routine use’

exception to circumvent the mandates of the Privacy Act” (collecting cases)); see also

Maracich v. Spears, 570 U.S. 48, 60 (2013) (“An exception to a ‘general statement of

policy’ is ‘usually read . . . narrowly in order to preserve the primary operation of the

provision.” (alteration in original)). If the purpose of “identifying numbers” can

always be characterized at such sky-high levels of generality, then the government

can disclose such numbers at will, confident that doing so will always satisfy the

routine use exception.

- 21 -

c. Failure to observe procedures. The Privacy Act directs agencies to

publish notice of “any new use or intended use of the information in the system” and

afford the “opportunity . . . to submit written data, views, or arguments” at least 30

days before publishing the new use. 5 U.S.C. § 552a(e)(11). These procedures must be

satisfied before “an agency [can] initiate a major new data-sharing program affecting

the sensitive data of millions of Americans.” LULAC III, 818 F. Supp. 3d at 115.

Applicants ignored these procedures, launching the SAVE overhaul in May

2025, and publishing SORNs six months later. Despite this gap in time, the SORN

declares itself “effective upon publication,” and as “tak[ing] effect” at the close of the

comment period—a concession that modified SAVE had been operating unlawfully

for months. Applicants do not even try to defend this conduct, which is “flatly

inconsistent with the text, structure, and purpose of the Privacy Act.” Id. at 115–16.

They instead ask that this Court simply look past it. But cf. Precision Instrument Mfg.

Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945) (“[H]e who comes into equity

must come with clean hands.”). Specifically, they contend that, because Respondents

seek prospective relief, any past procedural violations are academic. Appl. 28–29. But

Applicants’ choice to put the substantive cart (modifying SAVE) before the procedural

horse (a comment period and publication of a new SORN) means no valid SORN has

yet been published. The Privacy Act requires that notice be given “at least 30 days

prior” to the publication of any “new” or “intended” routine use, 5 U.S.C. § 552a(e)(11),

with the ensuing SORN to be published “upon establishment or revision” to the

system of records, id. § 552a(e)(4). This predicate to issuing a SORN has still never

- 22 -

occurred—the routine use at issue was in no manner “new” or “intended” when

Applicants belatedly sought comment and the SORN was not published “upon”

establishment of the new routine use. Applicants therefore acted “without observance

of procedure required by law,” 5 U.S.C. § 706(2)(D), and cannot identify any likely

error in the district court’s analysis.

III.

The equities and public interest cut strongly against the Applicants.

The sum total of Applicants’ discussion of the equities, so far as it relates to

Respondents, is to claim that Respondents “would not suffer any irreparable harm

from a stay” because the modified SAVE system “does not cause respondents even an

Article III injury.” Appl. 37. That is wrong several times over.

An injury is concrete if it bears “a close relationship’ to a harm ‘traditionally’

recognized as providing a basis for a lawsuit in American courts,” and this Court has

specifically named “disclosure of private information,” “intrusion upon seclusion,” and

“defamation” among them. TransUnion LLC v. Ramirez, 594 U.S. 413, 424–25, 432–

33 (2021). The relationship must be close “in kind, not degree.” Gadelhak v. AT&T

Servs., 950 F.3d 458, 462 (7th Cir. 2020) (Barrett, J.); cf. Chao, 540 U.S. at 624–26

(observing the Privacy Act tracks the common law’s attention to privacy concerns).

Applicants claim disclosures between federal agencies cannot inflict cognizable

harm at all. Congress itself has squarely rejected that suggestion by passing the

privacy laws at issue here. Supra § II.B; Gadelhak, 950 F.3d at 462 (explaining that

the text enacted by Congress is “instructive and important”); Cooper, 566 U.S. at 294

(explaining the text of the Privacy Act “directs agencies to establish safeguards to

protect individuals against the disclosure of confidential records ‘which could result

- 23 -

in substantial harm, embarrassment, inconvenience, or unfairness to any individual

on whom information is maintained’” (quoting 5 U.S.C. § 552a(e)(10)); see also AFGE

v. OPM, 786 F. Supp. 3d 647, 694 (S.D.N.Y. 2025) (holding “an improper disclosure

within the Government” under the Privacy Act “is a serious and cognizable harm,”

satisfying irreparable harm factor); Ctr. for Taxpayer Rts. v. IRS (“CTR”), No. 265006, 2026 WL 2635380, at *13–14 (D.C. Cir. Sep. 8, 2026) (similar), aff’g 815 F. Supp.

3d 1, 55–68 (D.D.C. 2025). The argument is also foreclosed by the record, which

details how the SAVE expansion has been used to “remov[e] United States citizens

from voter rolls based on inaccurate information.” App. 1a.

Indeed, “[t]he record here abounds” with evidence that, using modified SAVE,

Applicants “handed over individuals’ private information to state authorities, that

those authorities revoked or threatened to revoke voter registrations based on the

unauthorized and inaccurate disclosures,” disrupting “individuals’ daily lives when

they were forced to correct the inaccuracies” just to be able to vote. App. 27a. As the

D.C. Circuit put it just last week, an “eviscerat[ion]” of “statutory privacy rights on

which [Americans] depend” to avoid precisely these kinds of circumstances is “likely

. . . difficult or impossible to remedy.” CTR, 2026 WL 2635380, at *13–14. And those

undisputed harms are consistent with what SSA itself had assessed would happen if

its highly confidential Social Security number database were to be used by another

agency for this kind of purpose. Supra § II.B.1.

In contrast, the Applicants will suffer no irreparable harm by having their

appeal heard in the normal course. “The [NVRA] makes it unlawful to undertake

- 24 -

systematic voter removal within the 90-day period preceding a federal primary or

general election.” App. 131a (citing 52 U.S.C. § 20507(c)(2)(A)). Applicants should be

deemed to have waived their contrary argument before this Court because they

previously opposed preliminary relief before the district court on the basis that the

90-day quiet period would prevent imminent removals from the voter rolls at that

time. App. 131a. They cannot now rely on an argument that “is the polar opposite of

what [they] argued before the district court.” United States v. Sukhtipyaroge, 1 F.4th

603, 606 (8th Cir. 2021) (finding such arguments waived on appeal).

Regardless, Applicants also concede that “two circuits” have found that it is

now too late under the NVRA’s “quiet period” for modified SAVE to be used

systematically ahead of the 2026 elections. Appl. 35. They vaguely suggest “another

circuit has read it the opposite way” but do not identify which. Id. So far as Amici are

aware, no circuit has so held. As best as Amici can tell, Applicants may be referring

to Bell v. Marinko, but that case never even mentions the 90-day quiet period in §

20507(c)—it addressed when a State may remove a person from the voter rolls under

a separate NVRA provision. 367 F.3d 588, 591–92 (6th Cir. 2004). Applicants thus

cannot show that they will be able to even lawfully use modified SAVE as they desire

at this stage of the election calendar. See Mi Familia Vota v. Fontes, 129 F.4th 691,

715–17 (9th Cir. 2025), cert. granted, No. 25-1017 (U.S. June 29, 2026); Arcia v. Fla.

Sec’y of State, 772 F.3d 1335, 1344 (11th Cir. 2014); see also App. 131a–32a.

CONCLUSION

The Application should be denied.

- 25 -

September 15, 2026

Respectfully submitted,

/s/ Marc E. Elias

MARC E. ELIAS

Counsel of Record

LALITHA D. MADDURI

CHRISTOPHER D. DODGE

MAX C. ACCARDI

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 and Current U.S. Senators and Senate Candidates

- 26 -

APPENDIX

APPENDIX – LIST OF AMICI CURIAE

Members of the U.S. Senate

1.

Angela Alsobrooks

Senator from Maryland

2.

Tammy Baldwin

Senator from Wisconsin

3.

Michael Bennet

Senator from Colorado

4.

Richard Blumenthal

Senator from Connecticut

5.

Lisa Blunt Rochester

Senator from Delaware

6.

Cory Booker

Senator from New Jersey

7.

Christopher Coons

Senator from Delaware

8.

Catherine Cortez Masto

Senator from Nevada

9.

Tammy Duckworth

Senator from Illinois

10.

Richard Durbin

Senator from Illinois

11.

John Fetterman

Senator from Pennsylvania

12.

Kirsten Gillibrand

Senator from New York

13.

Margaret Hassan

Senator from New Hampshire

14.

Martin Heinrich

Senator from New Mexico

15.

Mazie Hirono

Senator from Hawaii

16.

Tim Kaine

Senator from Virginia

17.

Mark Kelly

Senator from Arizona

18.

Amy Klobuchar

Senator from Minnesota

19.

Ben Ray Luján

Senator from New Mexico

20.

Edward Markey

Senator from Massachusetts

21.

Jeff Merkley

Senator from Oregon

22.

Patty Murray

Senator from Washington

23.

Alex Padilla

Senator from California

24.

Gary Peters

Senator from Michigan

25.

Jack Reed

Senator from Rhode Island

26.

Jacky Rosen

Senator from Nevada

27.

Brian Schatz

Senator from Hawaii

28.

Adam Schiff

Senator from California

29.

Charles “Chuck” Schumer

Senator from New York

30.

Jeanne Shaheen

Senator from New Hampshire

31.

Tina Smith

Senator from Minnesota

32.

Chris Van Hollen

Senator from Maryland

33.

Mark Warner

Senator from Virginia

34.

Elizabeth Warren

Senator from Massachusetts

35.

Peter Welch

Senator from Vermont

36.

Sheldon Whitehouse

Senator from Rhode Island

37.

Ron Wyden

Senator from Oregon