The States Respond to DOJ Regarding the Still-Pending SCOTUS Mail-In Ballot Application

From the letter:

…if defendants believe a stay of that preliminary injunction is warranted, the proper course is to seek a stay in that case and to give those plaintiffs an opportunity to respond.

That is especially true in light of the distinct legal issues involved in the different cases. Here, the district court granted a narrow injunction limited to the plaintiff States (and to elections on or before November 3, 2026), based on the concrete harms suffered by the plaintiff States. App’x 41a-44a. As the lower courts recognized, States are the “targets” of the EO and would be forced, without an injunction, to take immediate steps to comply with the EO given their “primary responsibility” for administering the rapidly approaching November elections. Id. at 9a; id. at 18a (Dunlap, J., concurring in part). Cases involving private plaintiffs “have limited bearing here” because “only in this case are the plaintiffs the very states and state officials that the EO identifies and targets.” App’x 10a n.7; see Consolidated Opp. to Appls. 34-35. And although defendants suggest that the injunction in this case prevents them from implement[ing] Section 3 of the Executive Order for the federal elections in November,” Suppl. Br. 3, that is incorrect. The injunction here allows the U.S. Postal Service to issue a final rule and to implement Section 3 in non-plaintiff States, while preventing disruptive changes to election rules ahead of the midterms in the plaintiff States. The application for a stay should be denied.