UPDATE: U.S. Supreme Court issues a stay of Lower Court’s injunction of parts of Executive Order 14399, “Ensuring Citizenship Verification and Integrity in Federal Elections.”
Massachusetts District Court Judge Indira Talwani has “seriously overstepped the bounds of longstanding Article III standing and ripeness principles,” Solicitor General John Sauer argued in requesting the Supreme Court stay the judge’s injunction of Executive Order 14399.
The Supreme Court decision appeared to agree with many of SG Sauer’s arguments, taking issue with the “speculation” the lower court judge used against parts of EO14399.
The ruling is here.
Background
In June, Judge Talwani took up the cause of (many) Democrat state attorneys general who argued parts of EO 14399 were unconstitutional.
The Supreme Court paused that injunction today. In a 6-3 (unsigned) opinion, the high court wrote:
The Government is likely to prevail on the merits of its argument that the District Court lacked jurisdiction to enter the judgment.
Two related doctrines of justiciability block the States’ suit. One is standing, which requires “an injury that is concrete, particularized, and imminent rather than ‘conjectural or hypothetical.’ ”
The other is ripeness, which forbids federal courts to adjudicate disputes that are “dependent on ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ”
When a federal court “improperly intrudes on a coordinate branch” in this way, interim relief is justified,” the opinion noted.
The high court’s ruling addresses key parts of EO 14399 that Judge Talwani blocked:
—First, §2(a) that orders the Secretary of Homeland Security to “take appropriate action to” create and send “State Citizenship List[s]” to each State.
—Second, §2(b) requires the Attorney General to “prioritize the investigation and, as appropriate, the prosecution of State and local officials or any others” who issue federal ballots to ineligible voters.
—Third, §3(b) directs the Postal Service to “initiate a proposed rulemaking” that includes several “[p]roposed provisions.”
The court wrote:
“At the time this suit was filed—the time when standing is measured—the District Court had to engage in a string of speculations to find this suit justiciable. It first had to speculate about whether the Postal Service would propose a rule. Then it had to speculate about how the agency would weigh the comments it received.
“Then it had to speculate about whether the agency would issue a final rule.
“Then it had to speculate about what the final rule would say.
“Finally, after all that, the District Court still had to speculate about whether the text of a hypothetical final rule would harm the States. It should go without saying that the District Court made a decision “dependent on ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”
The opinion adds:
The States cannot preemptively concretize their injury by expending funds before the Postal Service finalizes a rule. Spending money to hedge against a “speculative threat” does not constitute an Article III injury.
UPDATE: Per ScotusWire:
Hours after its Supreme Court victory, the Trump administration is asking a federal judge to immediately lift her separate nationwide injunction that still blocks President Trump’s executive order directing USPS to adopt new mail-ballot rules.
The second injunction was issued Aug. 11 in a separate case brought by voting-rights groups. It blocks USPS nationwide from implementing Section 3 of Trump’s election order for the 2026 midterms, even though SCOTUS has now lifted the states’ separate injunction.
[The Department of Justice] says the two cases raise the same standing and ripeness problem. SCOTUS held that the states sued too early because the EO merely directed USPS to propose rules and imposed no requirements outside the Executive Branch.
See latest from DOJ: Emergency Motion to Reconsider Preliminary Injunction (Or, in the Alternative, For a Stay Pending Appeal
The latest Supreme Court ruling bodes well for the DOJ’s Aug. 24th stay request of Judge Talwani’s Aug. 11 injunction (correcting prior post that claimed SG Sauer had already filed a second stay). The second injunction against the U.S.P.S. rule on mail-in ballots also relied on theories about harm to grant standing to the League of Women Voters in their quest to block the forthcoming U.S.P.S. rule before it was issued.
As EPEC Team reported in our last update:
The U.S.P.S. issued new rules Friday for securing mail-in ballots in the midterm election. If the high court also issues a stay of Talwani’s August injunction against the U.S.P.S., the rules are ready to go.
The 95-page rule-notice the U.S.P.S. issued on Aug. 21 does nothing that Judge Talwani’s injunction ordered it not to do in her August 11 ruling.
The rule-notice also addresses some distortions among the over-200,000 comments on the new rule. For example
And it adds:
As SG Sauer wrote in the stay application (which the Supreme Court issued):
The final rule requires federal ballots transmitted through the U.S. Mail to be mailed in envelopes that include the official Election Mail logo, are automation compatible, and use unique barcodes that denote the item’s status as federal ballot mail and its delivery point ZIP code.
The rule amends USPS’s Domestic Mail Manual to impose modest envelope design requirements for federal ballot mail. The rule was issued pursuant to the Postal Service’s rulemaking authority in 39 U.S.C. 401(2) and operational authority in 39 U.S.C.404(a)(1).
The new rule “will not refuse to transmit ballots from individuals who were not included on a state-submitted list, as Section 3(b)(iii) of the [EO had] contemplated,” the administration’s motion says.
Yet the injunction nonetheless precludes the rule’s implementation as to the November 2026 federal election in the respondent states based on the court’s assessments of the Order’s proposals and potential implementation, not the contents or application of a rule actually in effect, Sauer adds.
Today’s Supreme Court pause of one of the injunctions is a win for the Trump administration’s goal to issue election security EOs, amid a volley of motions from groups such as the League of Women Voters.
Despite offering no evidence of harm beyond a claim their voting rights theoretically might be impacted, they were handed standing by Judge Talwani to block U.S.P.S. rule-making authority that Congress authorized to safeguard the mail.
One stay application approved. Another was just filed yesterday. #