ab ovo

The First Circuit denies a stay on Elections Clause grounds

15 September 2026

A panel of the United States Court of Appeals for the First Circuit denied the government’s motions to stay the ballot-mail injunctions on 10 September 2026.1 Judges Gelpí, Rikelman and Aframe wrote that “[a]ppellants have not demonstrated entitlement to a stay,” and that “[m]ost prominently, appellants have not made a strong showing that the district court erred in determining that the Final Rule is likely unlawful.”1 The order covers appeal numbers 26-2029, 26-2030, 26-2031 and 26-2032, and reaches both the League of Women Voters and California injunctions (see The ballot-mail application is withdrawn and refiled the same day).12 The Supreme Court denied the application, No. 26A305, on 14 September — the day before this was written, though the docket did not yet show it when read (see The Supreme Court denies the ballot-mail stay).34

  1. The ground is the Elections Clause, and the panel took only that one. It agreed with the district court “that the Final Rule is likely a regulation of the manner of holding elections for members of Congress, which the Elections Clause of the Constitution assigns to the States and Congress, and not to an executive agency, such as the Postal Service, acting without congressional authorization.”15 The government’s answer had been to deny that the rule regulates the manner of elections; the district court called that denial one that “rings hollow,” and the panel set out why: “[t]he title of the Final Rule is ‘Ballot Mail for Federal Elections,’ and the Final Rule explicitly and exclusively regulates election mail,” requires action by state “chief election official[s],” and gives as its justification “protect[ing] the integrity of federal elections,” citing Executive Order 14399 as the source of its policy goals (see Executive order directs federal citizenship lists and a Postal Service ballot rulemaking).16 A footnote confines the analysis: “[w]e confine our likelihood of success analysis to the constitutional claim based on the Elections Clause,” leaving the statutory claims undecided.1

  2. The panel’s description of the rule is operational, not abstract. Under the rule “ballots would not be delivered to voters unless a voter-specific Intelligent Mail barcode (‘IMb’) printed on outgoing and return ballot envelopes matches the IMb uploaded to a USPS database.”1 Compliance would require states to obtain Postal Service approval for new envelope designs, to buy replacements for envelopes already ordered, to build systems capable of generating the barcodes, and “to upload voter-specific information to a USPS online portal that is still not operational.”1 The order opens by placing this in time: the rule issued “[a]bout a week before the States were to begin mailing ballots for the upcoming federal election on November 3, 2026,” and “could prevent millions of Americans from obtaining and returning their ballots for that election.”1 A separate footnote records what the injunction does not do — it “does not bar voluntary compliance by States,” nor does it stop the Postal Service “continuing with the Final Rule’s implementation for elections after November 2026, including by creating the portal and training staff.”1

  3. Three days later a third district court enjoined the same rule. The government told the Supreme Court on 14 September that the District Court for the District of Columbia had entered a preliminary injunction in three consolidated cases — DSCC v. Trump, League of United Latin American Citizens v. Trump and NAACP v. Trump — and that “the D.D.C. injunction bars the Postal Service from implementing and enforcing its Ballot Mail for Federal Elections Rule.”7 By the government’s own account that court accepted part of its case: it “recognized that the Rule’s labeling requirements might fall within the Postal Service’s authority,” but held that requiring “state officials submit a list of intended ballot recipients as a condition of mailing ballots to those recipients likely exceeded the Postal Service’s authority,” because that requirement “is about regulating elections rather than delivering mail.”7 On harm, the D.D.C. court found the government had offered no “record evidence that there will be significant fraud in the upcoming elections.”7

  4. The government now asks the Court to settle three cases with one order. Its supplemental brief argues the new decision “does not contain any materially new reasoning,” and that therefore “a stay in this case will require the district court in DSCC (or the United States Court of Appeals for the District of Columbia Circuit) to immediately grant a parallel stay,” citing Trump v. Boyle for the proposition that the Court’s interim orders “inform how a court should exercise its discretion in like cases.”78 On irreparable harm it turns the Court’s own August order back on the later courts, quoting Trump v. California — the stay this corpus reported — for the proposition that the government is harmed by a court’s “intru[sion] on a coordinate branch” when appellate relief “would come too late for the 2026 midterms” (see Supreme Court stays one of the injunctions blocking the mail-in ballot order).79 Its substantive defence of the recipient lists is by analogy: they are “analogous to the existing registration and tracking requirements for cremated remains.”7

Footnotes

  1. Order of Court, United States Court of Appeals for the First Circuit, Nos. 26-2029, 26-2030, 26-2031 and 26-2032, entered 10 September 2026, before Gelpí, Rikelman and Aframe, Circuit Judges; Case 26-2029, Document 00118505918, Entry ID 6842300. Filed in the Supreme Court as Exhibit 1 to a letter of 10 September 2026 from Sophia Lin Lakin, Director of the ACLU Voting Rights Project, to Clerk Scott S. Harris in No. 26A305, informing the Court that the First Circuit had denied the stay motions in League of Women Voters of Mass. v. Trump, No. 26-cv-11549-IT (D. Mass.), Dkt. No. 285, and California v. United States Postal Service, No. 26-cv-13917-IT (D. Mass.), Dkt. No. 156. Quoted for the opening description of the rule and its timing; the denial of the motions including the requested administrative stay; the four-factor stay standard of Nken v. Holder, 556 U.S. 418, 425-26 (2009), and that appellants bear the burden; the Elections Clause holding; the “rings hollow” quotation from League of Women Voters of Mass. v. Trump, 2026 WL 2620871, at *14 (D. Mass. Sept. 4, 2026); the title-and-content reasoning citing 91 FR 54966, 54968-69, 54976 and 54990-92; the IMb and compliance description; footnote 1, that the stay motion “did not grapple with much of the district court’s reasoning or its factual findings”; footnote 2, confining the analysis to the Elections Clause; and footnote 4, on voluntary compliance and post-November implementation. The district court’s four preliminary-injunction findings are recited citing Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 17-18 (1st Cir. 2006). https://www.supremecourt.gov/DocketPDF/26/26A305/423849/20260910172543171_20260910%20Final%20Letter%20of%20COA1%20Stay%20Denied.pdf ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7 ↩8 ↩9 ↩10

  2. The third stay application, No. 26A305, was docketed 6 September 2026 after the United States withdrew No. 26A297 the same day. See The ballot-mail application is withdrawn and refiled the same day. ↩

  3. Supreme Court of the United States, docket for No. 26A305, read 15 September 2026. Docketed 6 September 2026 from First Circuit Nos. 26-2029 and 26-2031. Between 8 and 10 September the docket records responses from California and from the League of Women Voters respondents, the applicants’ reply, letters from both respondents, and some twenty amicus filings — among them bipartisan current and former members of Congress, bipartisan former governors, the NAACP, Professor Edward B. Foley and others, state and local election officials, current and former election officials in support of neither party, the American Postal Workers Union, Harris County, Texas, and the Society for the Rule of Law. The last entry is the supplemental brief of 14 September. No order disposing of the application appeared on the docket when it was read. It did on a second reading the following day: the Court denied the application on 14 September, and the entry recording that — together with the referral to the Court — was not present on 15 September when this post was written. A docket read can lag the order it records; the order date, not the read date, is what governs. https://www.supremecourt.gov/docket/docketfiles/html/public/26a305.html ↩

  4. United States Postal Service v. California, No. 26A305, 609 U.S. ____ (2026), order of 14 September 2026 denying the application for stay, with Justice Kavanaugh concurring and Justice Alito, joined by Justice Thomas, dissenting. See The Supreme Court denies the ballot-mail stay. ↩

  5. U.S. Const. art. I, § 4, cl. 1: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” https://constitution.congress.gov/constitution/article-1/ ↩

  6. Executive Order 14399, “Ensuring Citizenship Verification and Integrity in Federal Elections,” cited in the Final Rule at 91 FR 54966, 54976 as the source of the policy goals justifying it. See Executive order directs federal citizenship lists and a Postal Service ballot rulemaking. ↩

  7. Supplemental Brief in Support of Application for Stay, United States Postal Service v. California and Trump v. League of Women Voters of Massachusetts, No. 26A305, submitted 14 September 2026, 30 pages including the appendix reproducing the D.D.C. opinion at 1a-24a and its order at 25a-26a. The three consolidated cases are DSCC v. Trump, No. 26-cv-1114 (D.D.C.); League of United Latin American Citizens v. Trump, No. 26-cv-1132 (D.D.C.); and NAACP v. Trump, No. 26-cv-1151 (D.D.C.), the injunction entered at DSCC Doc. 192 on 13 September 2026. Quoted for the purpose of the filing; the description of the D.D.C. injunction; the government’s characterisation of that court’s reasoning at App. 15a-16a and 16a n.7; the no-record-evidence passage at App. 21a; the materially-new-reasoning and parallel-stay argument; the cremated-remains analogy and the retirement-community hypothetical; and the passages quoted from Trump v. California. Characterisations of the D.D.C. opinion in this post are the government’s, taken from its brief; the opinion itself was not read for this post. https://www.supremecourt.gov/DocketPDF/26/26A305/424032/20260914104419683_26A305%20—%20Supplemental%20Br.%20and%20App.pdf ↩ ↩2 ↩3 ↩4 ↩5 ↩6

  8. Trump v. Boyle, 145 S. Ct. 2653 (2025), quoted by the applicants at 2654 for the proposition that the Court’s interim orders “inform how a court should exercise its discretion in like cases.” Cited as the applicants cite it; the order was not independently consulted. ↩

  9. Trump v. California, No. 26A124, 2026 WL 2473573 (Aug. 24, 2026). See Supreme Court stays one of the injunctions blocking the mail-in ballot order. ↩

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