States challenging executive order on mail-in voting ask justices to leave in place limits on its implementation

Lawyers for a group of 23 states and the District of Columbia on Monday afternoon urged the Supreme Court to leave in place an order by a federal court in Boston that barred the federal government from applying provisions of an executive order on mail-in voting to those states in the November elections. In a 45-page filing, the challengers told the justices that granting a request to pause the lower court’s order “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program that would, among other things, give the U.S. Postal Service far-reaching new powers and responsibilities.” President Donald Trump issued the executive order on March 31, 2026. The provisions at the center of the dispute now before the court require several different government agencies to take action. One provision instructs the Department of Homeland Security to create lists of the adult U.S. citizens in each state and to send those lists to states at least 60 days before a federal election. Another provision directs the U.S. attorney general to “prioritize the investigation and, as appropriate, the prosecution of State and local officials … who issue Federal ballots to individuals not eligible to vote in a Federal election.” And a third provision requires states that want to use mail ballots to give the USPS a list of eligible voters to whom the states intend to send mail ballots, and it bars the USPS from transmitting ballots for voters not on the lists of “enrolled” voters that the USPS will create. The 23 states, led by California, and the District of Columbia went to federal court in Boston to challenge the government’s implementation of the order. They contended that it conflicts with provisions in the Constitution that give states the power to determine voter eligibility and to set the “Times, Places, and Manner” of holding congressional elections. U.S. District Judge Indira Talwani concluded that the challengers’ claims were not yet “ripe” – that is, ready for review – for federal elections scheduled to take place after Nov. 3, 2026. But she agreed with the challengers that she could review their claims with regard to the upcoming midterm elections because the executive order “created a ‘direct and immediate dilemma’” for them. Talwani barred the federal government from implementing the provisions outlined above on or before Nov. 3, 2026, in the District of Columbia and the 23 states challenging the provisions. The federal government and a group of 12 states, led by Alabama, that had joined the case to defend the order asked the U.S. Court of Appeals for the 1st Circuit to put Talwani’s order on hold. But the 1st Circuit declined to do so, noting that neither the federal government nor the 12 states “defend[ed] the legality of the EO.” The court of appeals also rejected any suggestion that the challengers did not have a right to sue or that the case was not yet ripe. The consequences of the executive order, that court wrote, give states “no practical choice but to respond to the EO now.” Both the government and the 12 states came to the Supreme Court last week, asking the justices to pause Talwani’s order. U.S. Solicitor General D. John Sauer argued that the dispute is not yet ripe because the agencies haven’t yet decided how they will implement the order. But in any event, Sauer wrote, Talwani’s ruling should be put on hold to avoid “serious irreparable harm.” “Even if the agencies’ implementation plans end up being entirely lawful,” Sauer wrote, “there is not enough time to obtain ordinary appellate relief from the injunction in order to carry them out before the November election, especially given that any such plans will need to be implemented well before November given the timing of election procedures concerning voter-roll verification and mail voting.” Sauer also asked the justices to issue an immediate administrative stay – a temporary order that would have blocked Talwani’s order while the court considered the government’s request. The court has not yet done so. The 12 states pointed to two recent rulings by the U.S. Court of Appeals for the District of Columbia Circuit involving the same executive order – one of which, they said, "held that it is too early to challenge the EO," and the other of which allowed the executive order to be reinstated "on th[at] same basis." In their filing on Monday, the challengers asked the justices to leave Talwani’s order in place, emphasizing that it was a “narrow injunction” that merely prohibits the federal government “from implementing its new voter-verification and ballot-interception program for this year’s elections with respect to” the 23 states and the District of Columbia. The challengers pushed back against the arguments that they lacked a legal right to sue and that the dispute was not ripe for review “because the EO has not yet been fully implemented.” “[A]s every member of the panel below agreed,” they wrote, “‘the specificity of the EO’s stated timelines and the inescapable legal requirements and impending deadlines that States currently face in facilitating mail-in and absentee balloting for immediately upcoming elections together establish’” the kind of “‘concrete injury’” that allow them to sue. Moreover, they added, if they can’t bring a lawsuit to challenge the executive order now, “it would be extremely difficult—if not impossible—to obtain a definitive judicial resolution with enough time remaining for States to redesign and reorder their ballot mail, train elections officials, and adequately educate the public before the November midterms.” Recommended Citation: Amy Howe, States challenging executive order on mail-in voting ask justices to leave in place limits on its implementation, SCOTUSblog (Aug. 3, 2026, 5:55 PM), https://www.scotusblog.com/2026/08/states-challenging-executive-order-on-mail-in-voting-ask-justices-to-leave-in-place-limits-on-it/