Trump DOJ, Still Waiting on SCOTUS to Rule on Whether It Can Go Forward with Its USPS Mail Ballot Rules and DHS Citizenship Voters List Rules, Asks Supreme Court To Explain Its Reasons as Way to Stop Second Court Order on USPS Rules

Sorry, that’s a lot to pack in one headline. Here’s what’s happening.

A district court earlier issued an order related to Trump’s second executive order on voting that bars the USPS from implementing for the midterm elections an upcoming rule that would limit USPS from delivering mail-in ballots from states that don’t comply with new administration requirements. This first order applies to 23 states and DC that sued over it. (Although the USPS final rule was due July 29, it has not been issued). That same district court order stopped DHS from putting out a rule satisfying another aspect of the executive order, the creation of citizenship lists that could be used (under the terms of the EO) to seek criminal sanctions for state and local election officials that don’t do a check of their own voting rolls against DHS lists.

The First Circuit affirmed that first order, and DOJ went to the Supreme Court to put these rulings on hold, allowing it to put out its USPS and DHS rules and apply them to these 23 states. Briefing has been done for a while, the government has said the final rules need to be in place by mid-August for them to be timely enough to use in the midterms. DOJ does not defend the upcoming rules on the merits, but instead says that the case is not yet ripe because the final rules are not out. Because of the timing and this has been dragging for a while, and because the Court refused to grant a stay as it considered this request, I expect the Supreme Court to rule against DOJ, over a likely dissent.

Meanwhile, yesterday, the same district court issued another rule, with a set of voting rights organizations as plaintiffs, enjoining USPS from putting out its rule anywhere in the country. The court that had thought such a ruling was premature now believes the issue is ripe with the upcoming elections.

This morning, DOJ sent the Supreme Court a supplemental letter. It not only tells the court about yesterday’s ruling, it asks for the court to provide reasons in this shadow docket case, so that they can go back to the district court and ask the court to reconsider:

The district court’s new order confirms the urgent need for this Court to grant the stay of the permanent injunction and to explain its rationale for doing so….

Accordingly, a stay of the permanent injunction in this case should cause the district court or the First Circuit to stay the new preliminary injunction too. See Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) (“Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.”). That said, to avoid any risk of yet another instance where multiple emergency applications are needed due to contrived doubts about the scope of this Court’s stay orders, see, e.g., Dep’t of Homeland Security v. D.V.D., 145 S. Ct. 2627, 2629-2630 (2025); National Institutes of Health v. American Public Health Ass’n, 145 S. Ct. 2658, 2663-2665 (2025) (Gorsuch, J., concurring in part and dissenting in part), it would be prudent for this Court to make clear that the Article III problem warranting a stay is based on the uncertainty concerning the government’s future actions, not anything specific to the individual plaintiffs—in fact, the government’s briefing in this Court did not even make any such plaintiff-specific arguments.

In all events, it is critical that the Court act promptly on the pending stay. Otherwise, the district court’s erroneous orders will effectively run out the clock on the government’s ability to implement Section 3 of the Executive Order for the federal elections in November, thereby causing irreparable harm to the federal government, the public, and election integrity.