Solicitor General D. John Sauer urged the Supreme Court to act immediately on a pending request to block two federal court orders that bar the government from enforcing President Trump's mail-in voting restrictions before November's midterm elections.
Sauer filed a supplemental brief Wednesday telling the justices that "every day" the injunctions remain in place "irreparably harms the government, as the start of mail-in and absentee voting in some States is now just one month away." The filing landed one day after U.S. District Judge Indira Talwani in Massachusetts issued a second order, this one applying nationwide, that temporarily bars the U.S. Postal Service from carrying out Section 3 of the president's executive order on election integrity.
The case, Trump v. California, docket number 26A124, has been fully briefed at the Supreme Court for more than a week. Yet the justices have taken no public action. Sauer's supplemental brief amounts to a pointed reminder that the clock is running out on the administration's ability to put the order's mail-ballot provisions into effect before voters start casting ballots.
Trump signed the executive order, titled "Ensuring Citizenship Verification and Integrity in Federal Elections," on March 31. It contains three operative sections. Section 1 directs the Department of Homeland Security to compile lists of adult U.S. citizens in each state and deliver those lists at least 60 days before a federal election. Section 2 orders the attorney general to prioritize investigating and, where appropriate, prosecuting state and local officials who issue federal ballots to people ineligible to vote.
Section 3, the provision at the center of the Supreme Court fight, requires states to give the Postal Service a roster of voters who will receive mail ballots. It then prohibits the USPS from mailing ballots to anyone not on the "enrolled" voter lists the Postal Service would create. AP News reported that the order would verify voters through U.S. Citizenship and Immigration Services and Social Security Administration data, and could withhold federal funding from states that refuse to comply.
Twenty-three states led by California, plus the District of Columbia, sued to block the order. Twelve states led by Alabama lined up behind the administration. The legal fight has not gone well for the government so far. Breitbart noted that more than 30 states have refused to share voter rolls and the administration has lost every related lawsuit, eight dismissed in total.
On June 25, Talwani ruled that the challengers' claims about the upcoming midterm elections were "ripe" because the order "created a 'direct and immediate dilemma'" for the states. She barred the federal government from implementing the challenged restrictions on or before November 3, 2026, in the 23 plaintiff states and D.C. She also found that claims about elections beyond that date were not yet ready for judicial review.
The administration appealed to the U.S. Court of Appeals for the First Circuit, the federal appeals court covering Massachusetts, asking it to pause Talwani's order. The First Circuit refused. In its ruling, the appeals court rejected the government's arguments that the states lacked standing and that the case was premature. It also made a pointed observation: neither the federal government nor the 12 states backing the administration had argued that the executive order was actually legal.
That left the Supreme Court as the administration's only option. Sauer filed the original stay application on July 27. The challengers responded on August 3.
Then Talwani acted again. On August 11, in a separate case brought by the League of Women Voters and other groups, she issued a second injunction, this one temporarily barring the Postal Service from implementing Section 3 anywhere in the country, not just in the original 23 plaintiff states. Sauer told the justices that Tuesday's ruling "sweeps even more broadly" than the June 25 decision because it applies "nationwide on behalf of" the plaintiffs in the new case.
The administration's core legal argument is not that the executive order is beyond challenge. It is that the courts moved too fast. Sauer contended that judges cannot block an executive order that "merely instructs agencies to pursue a proposed policy in a manner that is consistent with laws... unless and until those agencies actually take concrete actions that injure the plaintiffs." In other words, the administration says the order tells agencies to study and develop a program, and no one has been harmed yet because no program exists.
National Review's Dan McLaughlin offered a similar analysis, writing that "on the merits of the case, Trump is wrong" but that "on the narrow issue presented to the Court, he might have a stronger case for immediate, temporary relief." McLaughlin described the dispute as a collision between "an overreaching Trump order" and "an overreaching district judge."
Talwani saw it differently. Newsmax reported that the judge concluded "the executive branch of the federal government had no authority to regulate elections, a responsibility that the U.S. Constitution assigns to individual states." That framing goes well beyond a procedural timing question, it strikes at the constitutional foundation of the order itself.
The administration has shown a willingness to press executive authority on multiple fronts and take its losses to the high court. Trump has signed executive orders on birthright citizenship after earlier Supreme Court setbacks, and federal judges have at times conceded the Court cleared the administration to act on immigration policy. The mail-in voting fight follows the same pattern: push the policy, absorb the lower-court losses, and bet on the justices.
The 23 states and D.C. are not treating this as a procedural squabble. In their August 3 filing, the challengers argued that blocking Talwani's ruling "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."
They also pushed back on the administration's ripeness argument by quoting the First Circuit's own reasoning. The appeals court found that "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 gives the states the right to sue.
Trump himself has made no secret of his broader goal. As SCOTUSblog reported, the executive order is titled "Ensuring Citizenship Verification and Integrity in Federal Elections." AP News quoted the president calling mail-in ballots "inherently corrupt" during an appearance at a General Motors facility in Michigan and saying, "And hopefully there will be no mail-in ballots."
The full bench remains intact heading into one of the most consequential emergency applications of the term. What the justices do, and how quickly they do it, will determine whether the administration has any chance of putting its mail-ballot provisions into practice before November.
Sauer's supplemental brief framed the stakes in blunt terms. Without Supreme Court action, he wrote, the injunctions block "the government's ability to finalize and implement the President's proposed policies to promote election integrity for the upcoming federal elections in November," causing "irreparable harm to the federal government, the public, and election integrity."
Tuesday's second Talwani ruling only sharpened the urgency. The first injunction covered 23 states and D.C. The second covers the entire country. If the Supreme Court sits on the application much longer, the calendar will settle the question for the justices, there will not be enough time to build the verification system before ballots go out.
Aaron Blacksberg of the Institute for Responsive Government put it plainly to Breitbart: "If the Supreme Court, probably any day now, says that the current lower court ruling stands, there won't be a rule at all this year."
The ACLU's Molly McGrath offered a different take: "What the Constitution tells us is that no president can unilaterally write election laws, period."
That is the core dispute. The administration believes the president can direct federal agencies to verify citizenship before delivering mail ballots. The challengers, and so far every court that has ruled, say the Constitution reserves election administration to the states. Both sides agree on one thing: the Supreme Court needs to decide, and it needs to decide now.
When the government asks the highest court in the land for an emergency ruling and every lower court has said no, the justices owe the country a clear answer, not silence.