The Supreme Court denies the ballot-mail stay

The Supreme Court denied the government’s application to stay the ballot-mail injunctions on 14 September 2026.¹ The order is short: “[t]he application for stay presented to JUSTICE JACKSON and by her referred to the Court is denied. The Government is unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction. And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.”¹ It is the third application in this dispute in eight weeks and the first the Court has refused; on 24 August it had granted one (see The First Circuit denies a stay on Elections Clause grounds and Supreme Court stays one of the injunctions blocking the mail-in ballot order).²³

1. The outcome is agreed and the reasoning is not. The First Circuit had denied a stay on the ground that the rule is likely a regulation of the manner of holding elections, which the Elections Clause assigns to the States and Congress.² Justice Kavanaugh, concurring, took a different route and said so plainly: “there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority,” citing 39 U.S.C. § 401(2).¹ What defeats the stay in his view is timing — “applying the rule in the 2026 elections would be arbitrary and capricious in violation of the Administrative Procedure Act because state and local election officials do not have sufficient time to reasonably implement the rule before the elections.”¹⁴ On that reasoning the rule is not unlawful in itself; it is unlawful now.

2. The dissent would dispose of the Elections Clause claim by converting it. Justice Alito, joined by Justice Thomas, wrote that the Court “incorrectly denies the Government’s application for a stay of a universal injunction,” that “[s]ome of the plaintiffs lack standing,” and that the rest press a claim the Court “has recently called a “‘Hail Mary pass’” that “‘rarely succeeds.’”¹⁵ On the constitutional claim: “[t]his claim, however, collapses into an inquiry about whether the Postal Service has statutory authority to promulgate the rule,” because Congress may authorise such rules and a litigant cannot convert an excess-of-authority argument into a constitutional one.¹⁶ That statutory question, he continues, is largely unreviewable — Congress “broadly exempted” “the exercise of the powers of the Postal Service” from the APA at 39 U.S.C. § 410(a) — leaving only a narrow ultra vires route the Court’s “cases have strictly limited.”¹⁷ He is careful about what he is not saying: “I express no view on whether the Government would be likely to succeed on de novo review of the Postal Service’s powers.”¹

3. On the equities the dissent assigns blame for the calendar. It records that the States are not united — “[t]welve States supported the rule below and asserted that compliance at this time is practicable” — and then argues that “the plaintiff States and the courts bear a substantial share of the blame for the rule’s timing.”¹ The sharpest passage is directed at the Court itself: it “spent from late July to the end of August drafting nearly 40 pages of opinions, including two dissents,” while the government waited, having given public notice that it would not publish a final rule while the injunctions stood.¹ The dissent would grant the application.¹

4. The rule’s mechanics are set out in the dissent, not disputed. Ballot envelopes must carry “an election-mail logo, the ability to be scanned using high-speed processing equipment, and a specialized barcode unique to each voter”; States must submit envelope designs to the Postal Service for review and “upload basic information about the voter to a Postal Service portal”; and non-compliant mailings “will not be accepted and will be returned to the” State for correction and resubmission.¹⁸ That description matches the First Circuit’s, and the disagreement between the two courts is not about what the rule does.²