Justices Set Wednesday Deadline in Mail Ballot Stay Fight

The Trump administration withdrew its Sept. 3 Supreme Court application and refiled against the preliminary injunction, with responses due Wednesday afternoon.

The Trump administration went back to the Supreme Court on Sunday morning with a fresh emergency application asking the justices to pause a Massachusetts federal judge's preliminary injunction blocking parts of the new U.S. Postal Service rule on mail-in ballots. According to SCOTUSblog, the government first withdrew its Sept. 3 application, telling the clerk it was mooted by Judge Indira Talwani's Friday order, then immediately filed a new application seeking to put that Sept. 4 preliminary injunction on hold. Justice Ketanji Brown Jackson, who handles emergency appeals from Massachusetts, directed challengers to respond by 4 p.m. EDT Wednesday, Sept. 9.

SCOTUSblog reports this was the third time in under six weeks — and the second time since Thursday — that the administration has asked the high court to clear the way for the mail ballot restrictions. The swap of applications is a procedural reset: Talwani's Friday order replaced her earlier 14-day temporary restraining order with an indefinite preliminary injunction while the states' challenge continues. Solicitor General D. John Sauer called the new order "materially identical" to the temporary restraining order in scope and reasoning, arguing the judge's "continuing prejudgment" of the rule is baseless. The refile keeps the dispute on the court's emergency docket rather than letting it lapse.

Sauer told the justices the injunction "nullifies" the Postal Service's effort to address the risk that the federal mails could be used to perpetrate voter fraud, SCOTUSblog reports. He pushed back on claims the Postal Service is trying to federalize mail voting rules, saying the rule imposes only "modest envelope-design and addressee-information requirements" for federal election ballots. PBS News reports the filing warns that each day the injunction stands risks "sowing confusion and chaos" because preparatory compliance steps become voluntary rather than mandatory. The administration also argues the government suffers irreparable harm because the election is so near.

Timing drives the urgency on both sides. Solicitor General John Sauer's filing states ballots have already begun going out in North Carolina, that Alabama begins mailing on September 9, and that at least five more states follow the week of September 13, according to PBS News. "Once those ballot envelopes enter the mailstream, there is no retrieving them," Sauer wrote. The Guardian notes the fight is unfolding as states send out ballots for November's midterms, leaving the administration little time to make major changes to the rules even if it wins a stay.

The ACLU says the Postal Service rule is unconstitutional and unlawful. "With fewer than 60 days to go before the November election, there is not a shred of evidence that states could comply with it without disenfranchising voters who rely on mail ballots," Sophia Lin Lakin, director of the ACLU's Voting Rights Project, said in a statement quoted by PBS News. Democratic states and voting rights groups argue the changes conflict with constitutional provisions giving states power over the "Times, Places, and Manner" of elections, per SCOTUSblog. Nearly one-third of U.S. voters cast mail ballots, making the outcome consequential for control of Congress.

Challengers must file their response to the government's stay application by 4 p.m. EDT Wednesday, Sept. 9, per SCOTUSblog, teeing the matter up for possible Supreme Court action before more states begin mailing ballots. The high court has previously allowed the administration's plan to move forward without ruling on its legality, SCOTUSblog notes, and the underlying litigation over the executive order remains unresolved. Meanwhile, the Justice Department separately asked the Supreme Court to lift the block, Democracy Docket reports, arguing the injunction bars the Postal Service from verifying compliance even for states voluntarily following the rule. The court's response could determine whether millions of Americans vote under the new requirements in November.