Two weeks ago, in Trump v. California, the Supreme Court held that a suit brought by several states to preclude the U.S. Postal Service (USPS) from issuing a new regulation regarding mail-in ballots was premature because the USPS hadn’t yet promulgated a final rule when the states filed their suit.
Three days before the Court’s decision in California, however, the USPS did promulgate its Final Rule (a fact that, for some reason, none of the Justices mentioned in their opinions). The plaintiff states promptly filed a new complaint seeking to enjoin operation of the USPS Final Rule, and a group of organizations (led by the League of Women Voterabs) supplemented a complaint of their own to bring a similar challenge against the Rule.
Last Friday (Sept. 4), District Court Judge Indira Talwani issued a preliminary injunction in the two cases that temporarily prevents the USPS from implementing the Rule as applied to the 2026 election.
The Department of Justice has asked both the U.S. Court of Appeals for the First Circuit and the Supreme Court to stay that preliminary injunction and thereby allow the Rule to go into effect for the ongoing election. The expedited briefing schedule in the court of appeals will end with the Government’s reply brief at 5:00 today, and Justice Ketanji Brown Jackson has directed the plaintiffs to file their opposition to the Government’s stay application in the Supreme Court by 4:00 p.m. tomorrow, which would be followed shortly thereafter by the Solicitor General’s filing of his reply brief. Both appellate courts therefore could rule on the Government’s stay applications this week.
I believe the plaintiffs are right that the USPS lacks statutory authority to issue and enforce the Final Rule, largely for the reasons the plaintiff states offer in their excellent treatment of the likelihood-of-success question at pages 3-12 of the brief they just filed in the court of appeals. For what it’s worth, I’m not persuaded by all of the reasons Judge Talwani offered for her assessment of the plaintiff’s likelihood of success on the merits. I think, for example, that the constitutional objection she offered is a red herring: If Congress had afforded the Postal Service authority to promulgate the Rule—which Congress has the constitutional authority to do—then the Rule would be constitutional. But Congress hasn’t given the USPS such authority. That’s a statutory, not a constitutional, basis for resolving the case on the ground that the plaintiffs are likely to show that the USPS Rule is ultra vires. (And application of the major questions doctrine would make that conclusion even clearer.)
The principal function of this essay, however, isn’t to offer a deep dive into the merits of the statutory questions, but instead to explain why the Supreme Court need not resolve those merits questions—nor even decide whether the plaintiffs are likely to prevail on those questions at the end of the litigation—in order to rule on the Government’s stay application. There’s a much more straightforward basis for the Court to reject that application—namely, that the Government hasn’t come close to meeting its burden to “demonstrate that the balance of equities does not counsel against relief,” California, slip op. at 3, with respect to whether the USPS should be permitted to enforce the Rule to ballots in the 2026 election. Therefore, even a Justice who might, for example, be uncertain about whether the USPS may lawfully implement some or all of its Rule in future elections should deny the Government’s stay application, based upon an assessment of the balance of equities when it comes to the Rule’s application in the ongoing election.
I. What the USPS Rule Would Do
There’s been a good deal of public misunderstanding and uncertainty about just what the new USPS Rule would (and would not) do.
The Rule doesn’t attempt to regulate (not directly, anyway) who is eligible to vote, or to vote by mail. Nor does it directly regulate state-prescribed ballot contents; when voters or states must mail ballots (or by when they must be received); or ballot-counting procedures.
Instead, the Rule would impose a series of conditions that state and local election officials would have to satisfy before the USPS itself would deliver to individual addressees the blank ballots for federal offices—the so-called “outbound” ballots—that such election officials send to voters through the U.S. mail. The regulatory provisions in the Rule are “conditions” in the sense that if a state or local election jurisdiction does not comply with all of them, the USPS will not deliver the federal ballots to the recipients, but will instead “return” them to sender (i.e., to the election officials), even if they are properly addressed to lawful voters.
The Rule would, in effect, impose at least nine such preconditions for delivery.
Precondition 1: The Pre-Mailing Voter Porter-Enrollment Requirement. First, and of greatest significance, election officials would be required, before they send out any ballots to voters, to upload the name and address of each person entitled to receive a mail ballot, and two barcodes (IMbs) “unique” to that person, to an online USPS “portal.” See Domestic Mail Manual (DMM) § 24.4.2, 91 Fed. Reg. at 54991. State and local officials would have to submit this information to the portal according to USPS’s “technical specifications,” id. § 24.4.2(e), and they could not submit any such information until after the USPS has reviewed, and provided “feedback” on, the ballot envelopes the jurisdiction proposes to use for its ballot mailings (and for the return ballots), id. § 24.4.2(f). In this piece I’ll refer to this precondition as the “pre-mailing voter portal-enrollment” condition.
USPS personnel would be prohibited from delivering an outbound ballot to a voter until the USPS confirms that election officials had previously properly “enrolled” that person on the USPS portal, id. §§ 24.5.1, 24.5.2. Accordingly, if the Rule were to go into effect, postal workers would refuse to deliver important pieces of mail—those containing federal election ballots—that are properly prepared for delivery, with a legally sufficient address (indeed, even if the new USPS envelope specifications are satisfied), based solely on the fact that the sender—a state entity—did not incorporate the recipient’s name and related information on the USPS portal before the mailing (or if USPS personnel have not yet confirmed that the information is on the portal).
It’s important to note that this precondition would cause many ballots not to be timely delivered to eligible voters, even in a jurisdiction that makes great efforts to comply with the “pre-mailing listing” requirements. (Election officials would be permitted to update the voter information on the USPS portal.) The following paragraphs from the states’ complaint (in part describing comments submitted to the USPS) give some flavor for why that’s the case:
108. …[T]he required infrastructure—the Federal Mail Ballot Portal—does not currently exist. [NOTE by author: USPS recently informed the district court that it anticipates having the portal up and ready to use “sometime” later this week.] Rolling out a dramatically different, untested technology and process that requires election officials and USPS to simultaneously input and manage tens of millions of entries in the high-stakes elections context is fraught with risk. Any technological or process failure could delay or prevent the mailing of ballots to voters at a massive scale…
109. [T]he exceedingly short timeframe between the potential final adoption of the NPRM and the deadlines for mailing ballots only compound[s] that risk, overburdening election officials at a time when they are already facing a “near-constant stream of critical, time-sensitive tasks.”
111. [V]oters would be disenfranchised through no fault of their own but instead based on administrative errors or technical failures. …
131.Thescale of mail voting underscores the challenges of complying with the Rule. Preparing and mailing nearly 100 million mail ballots is already a complicated endeavor. The additional burdens of creating unique [Intelligent Mail Barcodes] for each ballot envelope and uploading and updating information about those nearly 100 million corresponding voters are enormous. These challenges are exacerbated by the reality that voter and mail ballot registration continue in the weeks leading up to an election, meaning States will need to provide frequent amendments and additions through the USPS Ballot Portal. Yet the design of the Rule provides no realistic opportunity for States to ensure that the USPS Mail Ballot Lists are … The scale of these challenges is magnified in Plaintiff States in which most voters vote by mail, and which automatically send mail ballots to all registered voters.
DOJ and the USPS have not identified any other, analogous “pre-mailing addressee listing” condition anywhere else in the law, in USPS’ past practice, or in the history of the postal service, and I’m not aware of any precedent for imposing such a “list your recipients ahead of time” precondition to USPS’ delivery of lawful mail.
Preconditions 2-8: The Ballot Envelope Specifications. Almost all of the remainder of the Rule’s preconditions concern the design of the envelopes—for both “outbound” and “return” ballots—that state and local election officials would be required to use in order for the USPS to deliver the outbound ballots that such officials mail to voters:
2. The Rule would require election officials to submit outgoing federal ballots to the USPS in envelopes that include the official USPS Election Mail logo, DMM § 24.3.1.a, 91 Fed. Reg. at 54990.
3. It would also require the envelopes to be “automation compatible” with USPS sorting and tracking equipment. § 24.3.1.b.
4. And it would require those outbound envelopes to include the particular voter’s unique Intelligent Mail barcode (“IMb”), which is based upon their name and address. § 24.3.1.c.
5.-7. The state and local officials would have to include those same three things (albeit a different barcode) on every “return” envelope they insert in the “outbound” ballot envelope—i.e., on the envelopes that voters must use to return their ballots to election officials. Id. § 24.3.2.
8. Before mailing any outbound ballots, even those whose outbound and return envelopes comply with conditions 2-7 above, state and local election officials would have to submit exemplars of such envelopes to the USPS “for mailpiece design review and feedback,” id., and presumably they would have to wait for the Postal Service’s “feedback” before using such envelopes to mail ballots to voters.
In its briefs, the Government repeatedly notes that these prescribed envelope specifications are similar to those the USPS already recommends to state and local election officials—specifications that many jurisdictions have voluntarily used in previous elections. The election agencies that have conformed their envelopes to such recommended specifications in the past have done so in order to facilitate their ability to ensure that the USPS delivers ballots to voters in a timely fashion: Such an envelope makes it easier for USPS carriers and sorters to recognize the mailing as a ballot that warrants priority, is more machine-friendly, and can be tracked more easily—thereby facilitating more reliable and more expeditious delivery of ballots to and from voters.
Some jurisdictions therefore might gladly conform their envelopes to the new USPS specifications if they were afforded sufficient time and resources to do so—particularly in elections after 2026. Other jurisdictions, however, might conclude that it’s not worth the time and expense, in light of their particular circumstances, workloads and budgets (or, in some cases, because state law might prohibit officials from using certain of the USPS ballot envelope requirements). And in many more jurisdictions, it would be infeasible or, at best, extraordinarily costly, burdensome and risky, to try to create brand new, USPS-approved envelopes in time to ensure effective delivery of ballots to all eligible voters for the 2026 election, in particular (burdens that I discuss further below). For example, the district court found that “some jurisdictions, particularly small rural ones, lack the ability to print Intelligent Mail Barcodes.”
Precondition 9: The Place-of-Mailing Requirement. The Rule would also require state and local officials to “enter[]” outbound ballots at a USPS facility “that performs business mail acceptance functions” or at a Postal Service retail counter, id. at § 24.5.2—which I read to prohibit election officials from simply placing the ballots in their ordinary, internal pick-up locations or using a mailbox. The plaintiffs haven’t devoted much attention to the burdens associated with that precondition.
* * * *
The new USPS Rule would require every state and local election jurisdiction to comply with each and every one of these nine preconditions before the USPS will deliver ballots to voters, including for the 2026 election that concludes just 56 days from now. “Mailings that do not comply with 24.5.1 and 24.5.2 will not be accepted and will be returned to the authorized ballot mailer.” DMM § 24.5.3, 91 Fed. Reg. at 54991.
II. The Balance of Equities Overwhelmingly Counsels Against Granting the Government’s Application to Stay the Preliminary Injunction
As I noted at the outset, I think the plaintiffs are correct that the Postal Service lacks any statutory authority to refuse to deliver valid mailings to their intended recipients unless and until election officials satisfy the nine new preconditions in the Rule—especially the pre-mailing voter portal-enrollment condition. There’s no need for the Supreme Court to resolve that question at this early stage of the litigation, however—or even to opine on which party is “likely” to prevail on the statutory merits arguments. The Court can and should instead deny the Government’s application to stay the injunction simply because the balance of equities is overwhelmingly against applying the new USPS Rule to ballot mailings for the 2026 election.
In its decision in Trump v California two weeks ago—and before that, in the Court’s decision in June in the case involving the President’s effort to remove Lisa Cook as a Governor of the Board of the Federal Reserve—the Court explained that “[t]o secure a stay pending appeal,” not only must the Government “show that it is likely to succeed on the merits and that it is likely to suffer irreparable harm without a stay”; it “must also demonstrate that the balance of equities does not counsel against relief.” California, slip. op. at 3, citing Trump v. Cook, slip op. at 8 (“The applicant must show that … that the balance of equities tip in its favor.”).
This is not a new idea. See, e.g., Trump v. Int’l Refugee Assistance Project (IRAP), 582 U.S. 571, 580 (2017) (per curiam) (“Before issuing a stay, ‘[i]t is ultimately necessary … to balance the equities—to explore the relative harms to applicant and respondent, as well as the interests of the public at large.’”) (quoting Barnes v. E-Systems, Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (Scalia, J., in chambers)); id. (“The purpose of such interim equitable relief is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.”); Barnes, 501 U.S. at 1304-05 (Scalia, J., in chambers) (“The conditions that are necessary for issuance of a stay are not necessarily sufficient. Even when they all exist, sound equitable discretion will deny the stay when ‘a decided balance of convenience’ does not support it. It is ultimately necessary, in other words, ‘to “balance the equities”—to explore the relative harms to applicant and respondent, as well as the interests of the public at large’”) (internal citations omitted); see also Winter v. NRDC, 555 U.S. 7, 24 (2008) (explaining that a “preliminary injunction is … never awarded as of right” and that “[i]n each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief’” (quoting Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 542 (1987))).
In this case, the Government cannot possibly demonstrate “that the balance of equities tip in its favor” (Cook). Indeed, it’s not even a close call, and Solicitor General John Sauer barely even tries to suggest otherwise.
On one side of the balance, the burdens on the plaintiff states and on voters would be vast. For starters, application of the new USPS Rule would require some election officials to fail to comply with state law—for example, in cases where they cannot deliver ballots to voters on the timeline state law requires, or where state law does not permit ballot envelopes to include all of the information the USPS Rule would require.
To be sure, it’s possible that some of the more than 10,000 national election jurisdictions would be able to comply with all of the new conditions in a timely manner, and in compliance with state law, but only at very great expense, and with the diversion of important resources that would otherwise be put to better, important uses in election implementation. More significantly, other jurisdictions realistically could not comply with the new conditions on such a short timeline. (See, for example, pages 34-38 of Judge Talwani’s opinion, citing extensive evidence of the obstacles to compliance with envelope conditions in many jurisdictions.) Where that happens, many voters in those jurisdictions would not receive their ballots in a timely manner and they would therefore be unable to vote by mail as their state laws allow—which, in some places and under some circumstances (e.g., in a jurisdiction that allows voting only by mail, or where a voter is unable to appear at the poll on Election Day), would mean not being able to vote at all.
It’s unnecessary for me to go into further detail here about these profound costs: Interested readers can review the vivid, compelling accounts in briefs that the state (pp. 21-27) and organizational plaintiffs (pp. 25-27) just filed in the court of appeals.
The Solicitor General devotes only a single, perfunctory paragraph (Supreme Court Stay App. 31-32) to arguing that the purported difficulties of timely compliance with the new USPS conditions “are overblown,” but he doesn’t offer anything to call into question the district court’s conclusions that the severe harms described above, including effective mass disenfranchisement, will occur in many places—findings that were based upon voluminous, unrebutted evidence from many state election officials and election experts.
Okay, but as catastrophic as those consequences might be, they are only one side of the equitable balance. What are the corresponding the harms to the Government’s equities if the Rule remains enjoined temporarily?
The USPS and the Solicitor General cite virtually nothing at all, apart from the abstract idea that the failure to apply the USPS Rule for the 2026 election would be a “setback” to the Executive’s “goals” (Supreme Court Stay App. 30).
To be sure, the Solicitor General is right that if the preliminary injunction remains in effect, there will be at least one “irreparable” consequence: The Postal Service will deliver at least some ballots from election officials to voters that were mailed without officials’ compliance with the Rule’s new conditions, because mail-in processes are now ongoing in some states and will be soon in others. And voters will use those ballots to vote in the 2026 election—that’s something that couldn’t be undone if the Government were to eventually prevail in defending the legality of the Rule.
But how would such ballot delivery and subsequent voting possibly harm the Government?
In his stay application, the Solicitor General briefly (and implausibly) suggests that the function of new USPS conditions is to help ensure delivery of ballots to voters, even where the state and local election jurisdictions in question have concluded that such conditions are counterproductive because they would make ballot delivery slower and less reliable. See Supreme Court Stay App. 21 (“the Rule does facilitate voting, by improving the USPS’s ability to more efficiently process and deliver ballot mail”) (emphasis in original); see also id. at 9 (“these requirements ‘will help ensure proper handling, efficient processing, and timely delivery of [federal-election ballots] to and from voters’”) (quoting the preamble to the USPS Rule, 91 Fed. Reg. at 54,974); see also id. at 17 (“Timely delivery of ballot mail is especially important given specific state deadlines for receipt of ballots.”).
But if the Government’s concern about the preliminary injunction is, as the Solicitor General insists, that some ballots will “irreparably” be delivered to voters while the injunction is in place, then the injunction will have caused no harm at all to the Government’s alleged interest in ensuring that the USPS processes ballots and delivers them expeditiously to voters: To the contrary, the Postal Service will have successfully performed its functions.
Solicitor General Sauer therefore has little choice but to repeatedly invoke a different equity—the alleged harm to the Government’s interest in detecting and preventing “voter fraud.” Sauer’s argument (such as it is) is that election officials’ compliance with the new USPS conditions would help the Government as a whole (presumably the Department of Justice, in particular) investigate cases in which persons who are ineligible to vote submit ballots by mail, and that the injunction undermines that objective. See id. at 9 (quoting the USPS’ assertion that the new conditions will “facilitate law enforcement efforts by enabling law enforcement to better detect potential issues meriting further investigation,” 91 Fed. Reg. at 54,969).
The most inexplicable thing about the USPS rulemaking and the Government’s briefs, however, is that they offer nothing to support that claim—no basis at all to believe that the conditions the USPS would require would have the slightest impact on the Government’s ability to ferret out “voter fraud” (which is exceedingly rare), nor even a theory or speculation about why they might do so. (Because the Rule regulates the delivery of “outbound” ballots from election officials to voters, rather the voters’ own “return” ballots, I suppose it’s possible the USPS’ “fraud” prevention rationale in in its rulemaking was referring, not so much to voters’ alleged fraudulent conduct, but to alleged actions of state and local election officials to aid noncitizens in voting unlawfully. There’s no history of that phenomenon, however, nor has the USPS or the Solicitor General suggested to the contrary.)
In short, then, the Government has pointed to nothing on its side of the balance of equities. It follows that Professor Rick Hasen (an expert in both election law and the law of remedies) was exactly right when he wrote this the other day:
[I]n the end, this is an easy case because even if the government had good legal arguments to go forward with this new USPS rule for 2028 and beyond, the equities point only in the direction of keeping this rule on ice for 2026 and let election administrators get back to the hard work of running their elections without executive branch interference. As a professor of remedies as well as election law, I don’t think I’ve seen such a lopsided case on the equities as this one.
That conclusion offers the simplest, most straightforward way for the Supreme Court to rule on the Solicitor General’s application: It should simply declare that the Government has not “demonstrate[d] that the balance of equities does not counsel against relief.” California, quoting Cook. Not even close.
Apparently realizing that he has virtually nothing to say when it comes to assessing the balance of equities, Solicitor General Sauer offers a very different kind of argument: He insists that the Court should not or cannot evaluate the balance of equities in this case at all. Citing the Court’s per curiam decision last Friday in National Republican Congressional Comm. v. Brown (No. 26A274), Sauer contends (Supreme Court App. at 30-31) that when the Court considers an application to stay a lower-court injunction, “balanc[ing] the equities” matters only “[i]n close cases” (emphasis added), i.e., in cases where there’s a close question regarding the ultimate likelihood of success and/or the existence of some irreparable harm to the movant. See also id. at 31 (“Respondents … have no equitable entitlement to invoke the protections of an unlawful injunction just because compliance with the Rule may be challenging for the upcoming elections.”). And he further argues that this is not such a “close” case. See id. at 13 (“This is … not a close case where the equities must be balanced.”).
That argument should be a nonstarter for two reasons. First, the Solicitor General is right that this isn’t a “close case” on the merits—but that’s because the plaintiffs have an overwhelmingly strong likelihood of eventually prevailing on their argument that the USPS Rule (especially the pre-mailing voter portal-enrollment condition) is ultra vires and thus unlawful. (Indeed, as I explain in a footnote, the USPS’s failure in the rulemaking process to account for the profound costs and harms to the states and to voters if the USPS were to apply the Rule to the 2026 election is also a reason why the state plaintiffs are likely to prevail on their merits claim that the Rule’s application to the current election is arbitrary and capricious and an abuse of discretion.[1])
Second, and more fundamentally, the Solicitor General is simply wrong to suggest that a court considering whether to stay an injunction, or a similar question about interim relief (such as whether to issue a preliminary injunction), can or should consider the balance of equities only when the movant has not made a compelling showing on likelihood of success and irreparable harm. The Court in Brown did not say, let alone hold, that such a balancing of equities is appropriate “only” where the merits questions are “close.” Such a holding would be inconsistent with the Court’s historical practices and with the appropriate exercise of a court’s equitable power.
When considering such a question of interim relief, a court exercises its equitable authority, a function that—virtually by definition—requires assessment of all equitable considerations. That explains why the Court has held that such interim relief is inappropriate (and some individual Justices have vote against it) in some cases where the balance of equities counseled against it, even where the moving party was very likely to eventually prevail on the merits and would suffer some irreparable harm in the meantime.
The most vivid example of this is the Court’s decision in Winter v. NRDC, 555 U.S. 7 (2008), written by Chief Justice John Roberts. In that case, the Court held that a district court had abused its discretion by issuing a preliminary injunction prohibiting the Navy from conducting training activities using sonar without first completing an environmental impact statement, because although the plaintiffs’ interests in preventing the Navy from injuring marine mammals and impairing plaintiffs’ ability to study and observe the animals were “serious[],” “the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy.” Id. at 26.
Most importantly for purposes of the USPS case, the Winter Court reasoned that the district court abused its equitable discretion by granting the preliminary injunction in light of the balance the harms to the parties and the public “even if plaintiffs [were] correct on the underlying merits” of the unlawfulness of the Navy’s actions, id. at 31-32 n.5, and notwithstanding whether the plaintiffs had demonstrated irreparable injury, id. at 23 (“even if plaintiffs have shown irreparable injury from the Navy’s training exercises, any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors”).[2]
Likewise, in NetChoice, LLC v. Fitch (2025), the court of appeals had stayed a district court’s preliminary injunction prohibiting Mississippi from enforcing a law regulating social media. NetChoice asked the Supreme Court to vacate the stay, but the Court refused to do so. Justice Brett Kavanaugh wrote separately to explain that he voted to deny NetChoice’s stay motion even though “NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights” (which would obviously result in irreparable harm, too–indeed, suppression of the exercise of a constitutional right). According to Kavanaugh, a stay was unwarranted despite NetChoice’s strong arguments on the merits and irreparable harm because NetChoice had “not sufficiently demonstrated that the balance of harms and equities favors it at this time.”
These cases demonstrate that a court exercising an equitable power in a case such as this must consider and balance the full range of the parties’ and the public’s equities—and that such an assessment can be the basis for the decision made in the exercise of equitable discretion, even where (unlike here) the moving party’s likelihood of success on the merits is clear and it will suffer some form of irreparable harm. Therefore, the Court was right to explain, in cases such as Trump v. California and Trump v. Cook, that in order “[t]o secure a stay pending appeal,” not only must the Government “show that it is likely to succeed on the merits and that it is likely to suffer irreparable harm without a stay;” it “must also demonstrate that the balance of equities does not counsel against relief.”
The Government has fallen woefully short of such a showing in the USPS case. In contrast to the profound harms the states and the voters will suffer if the Rule goes into effect (as demonstrated by extensive, unrebutted evidence), the Government has been unable even to articulate how the injunction will cause it any harms during the next eight weeks, apart from the vague and rather abstract (if not suspect) claim that it would be a “setback” to some unspecified “goals” of the Executive (Supreme Court Stay App. 30). The Supreme Court therefore can and should deny the Government’s application for a stay of the preliminary injunction on that ground alone.
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[1] In paragraph 160 of their complaint, the state plaintiffs allege that the USPS acted arbitrarily and capriciously, and abused its discretion, by “issuing the Rule with an immediate effective date for implementation for the November 2026 midterm elections” without giving serious consideration to the states’ reliance interests and the evidence submitted to the USPS about the prohibitive costs and logistical barriers that would result if officials had to comply with the Rule’s requirements in this election cycle: “USPS is offering no actual explanation for how a rule finalized on August 26, 2026, which requires (1) a redesign of ballots, (2) that must be approved by USPS (perhaps within 2 business days, though this is not a commitment), (3) the reordering and reprinting of potentially millions of ballots, (4) the entry of millions of pieces of data by election officials, and (5) increased time in processing ballots at a mail facility, can allow States to begin mailing out ballots by September 4, 2026.”
If the Supreme Court is inclined to address the Government’s likelihood of success, it could simply conclude that the state plaintiffs are likely to be entitled to an injunction against the Rule’s application in the current election because of the USPS’ failure to account for such costs and difficulties was arbitrary, capricious, and an abuse of discretion. Although the district court didn’t address the arbitrary and capricious claim, appellate courts “‘revie[w] judgments, not statements in opinions,’” and therefore courts are not limited to “the reasons given by [a] lower court[],” Cook, 146 S. Ct. at 2251 n.3 (citations omitted), even where—as in Cook and this case–—the appellate court is deciding an application to stay a preliminary injunction pending appeal. See id. (“the question before us is whether we would likely ‘reverse the judgment below,’ not whether we would likely disagree with some of the reasons given by the lower courts”).
The Government asserts that the state plaintiffs lack any cause of action to raise such an arbitrary and capricious claim. See Supreme Court Stay App. 7 (“Congress expressly exempted the Postal Service from arbitrary-and-capricious review under the Administrative Procedure Act (APA), see 39 U.S.C. 410(a), which is the only conceivable basis for such a claim if the Rule is otherwise lawful for future elections where there is more time to comply.”). Actually, whether and under what circumstances Congress has exempted the USPS from the APA remains an open question. See Air Courier Conf. of Amer. v. American Postal Workers Union, 498 U.S. 517, 522-523 (1991) (reserving the question). Whatever the answer to that question might be, however, Congress has specifically provided that USPS proceedings concerning the “mailability of matter” must be conducted in accordance with APA requirements and subject to APA procedures for review (including 5 U.S.C. § 706(2)(A), which provides that courts “shall … hold unlawful and set aside final agency action … found to be … arbitrary, capricious, [or] an abuse of discretion”). See 39 U.S.C. § 3001(m).
The Government has argued that the USPS Rule does not concern “the mailability of matter”—and therefore that § 3001(m) is inapposite and the APA rules and processes do not apply—because the Rule merely requires election officials to satisfy conditions before the USPS will deliver ballots, rather than prohibiting the mailing of ballots altogether. See also 91 Fed. Reg. at 54973-54974. That’s incorrect. To be sure, the provisions of the Postal Reorganization Act identifying “nonmailable matters” include some absolute prohibitions on the mailing of certain things, but they also refer to certain things as “nonmailable” if specified mailing conditions are not satisfied. See, e.g., 39 U.S.C. § 3001(g) (deeming fragrance ad samples to be “nonmailable” “unless the sample is sealed, wrapped, treated, or otherwise prepared in a manner reasonably designed to prevent individuals from being unknowingly or involuntarily exposed to the sample”). The USPS Rule therefore concerns the “mailability” of ballots as Congress has understood that term, and § 3001(m) accordingly authorizes APA arbitrary-and-capricious review of the Rule.
[2] To be sure, Winter was a case in which the Court was reviewing the propriety of a district court’s preliminary injunction on appeal, rather than on an application to stay the injunction. The Court has explained, however, that there is “substantial overlap” between the factors a court must consider when deciding whether to issue a preliminary injunction and those it should consider when it’s asked to stay such an injunction. Nken v. Holder, 556 U.S. 418, 434 (2009). Such convergence is appropriate “not because the two [questions] are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.” Id. And, in any event, the Court in Winter ultimately decided to itself vacate the preliminary injunction. 555 U.S. at 33. It is thus probably fair to say that the Supreme Court in Winter was itself engaged in the application of equity when it weighed the harms to the parties and to the public.
