First Circuit Upholds Block on USPS Mail Ballot Rule: Supreme Court Showdown Looms With Less Than 60 Days to Midterms

Since our August 2026 election law alert reporting that the Supreme Court had stayed the District Court’s injunction against Executive Order 14399 on standing and ripeness grounds, holding that the plaintiff states’ challenge to Section 3 of the Executive Order was not yet ripe because no final USPS rule had been issued, the litigation has moved with extraordinary speed. The Supreme Court was explicit that its ruling “does not mean that any measure taken by the Government to implement the Order will necessarily be lawful.” That final rule arrived days later. Despite the then-existing injunction, USPS issued its Final Rule on the evening of Friday, August 21, 2026. Two federal courts have now blocked it. The Trump Administration is expected to seek emergency relief from the Supreme Court. Here is what happened, what it means, and what comes next.

I.  USPS’ Final Rule on Mail-In Ballots

On August 21, 2026, USPS issued its final rule, Ballot Mail for Federal Elections, 91 Fed. Reg. 54966 (Aug. 26, 2026) (the “Final Rule”), implementing Section 3 of the Executive Order. USPS reported that it had received over 200,000 public comments from citizens, postal unions, federal, state, local, and tribal officials, election officials, and voting rights organizations.

The Final Rule conditions a state’s use of USPS to deliver mail ballots on compliance with three layers of new requirements: (1) ballot envelopes and return envelopes must comply with mandatory design requirements, including an official Election Mail logo, automation compatibility, and a unique Intelligent Mail Barcode assigned to a specific voter; (2) state and local election officials must submit their ballot envelope designs to USPS for approval before sending; and (3) after obtaining approval, officials must upload each voter's information to a USPS-run electronic portal. Where a state does not obtain envelope approval, does not upload voter information, or does not include the required barcodes, USPS will not mail ballots to voters.

II.  The District Court’s September 4, 2026, Preliminary Injunction

On August 27, 2026, the District Court first entered a temporary restraining order blocking the Final Rule’s mandatory provisions. Following a full hearing on September 3, 2026, the court then issued a preliminary injunction in an order issued on September 4, 2026, prohibiting USPS from implementing the mandatory sections of the Final Rule for elections occurring before or on November 3, 2026. The court denied the Government’s request for a stay pending appeal.

To succeed in seeking injunctive relief, a party must demonstrate likelihood of success on the merits, that it will suffer irreparable harm absent an injunction, that the balance of equities tips in its favor, and that an injunction is in the public interest. The court found Plaintiffs satisfied all four factors.

• The Final Rule is likely unconstitutional. The Elections Clause of the Constitution tasks the States with the role of election administration, subject only to Congress's superseding legislation. The executive has no inherent authority in this joint endeavor. Congress has never explicitly delegated its Elections Clause power to USPS, and Defendants and Intervenor-Defendants did not claim otherwise. The Government sought to avoid this problem by denying that the Final Rule is an election rule, an argument the court found rings hollow. Titled “Ballot Mail for Federal Elections,” the Final Rule explicitly and exclusively regulates election mail, requires action only of States’ “chief election officials,” and cites “the integrity of federal elections” as its policy justification.
• The Final Rule is likely ultra vires and beyond USPS’ authority. Administrative agencies possess only the authority Congress has provided. Title 39 (USPS’ governing statute) includes no reference to elections whatsoever, and USPS’ history of providing only non-binding guidance regarding election mail does nothing to bolster the Government’s claim of authority. Congress does not delegate "highly consequential power" over elections through the “wafer-thin reed” of a general grant of authority to manage the postal system.

• The Final Rule likely violates Title 39. The postal laws make a clear division between mailable and nonmailable material. Congress has specifically identified categories of nonmailable matter. But nowhere does it permit USPS to establish new nonmailable categories by rulemaking. By conditioning the acceptance of mail ballots on compliance with a new regime, the Final Rule effectively creates a new category of nonmailable material—federal election mail—which Congress has not authorized.

• Irreparable harm is practically inevitable. States have already purchased non-compliant ballot envelopes, and vendors have stated that rush reprinting is impossible. USPS’ aspirational two-day approval turnaround for ballot envelope designs is contradicted by record evidence showing the process takes weeks or months in practice, and USPS has disclaimed any intention to hire additional staff to handle the simultaneous review of hundreds or thousands of new designs. The portal required for voter enrollment is not yet operational. Expert testimony established that none of the Final Rule’s requirements can feasibly be implemented before the November 3, 2026, general election. The court concluded that disenfranchisement of voters who rely on mail ballots is practically inevitable if the Final Rule takes effect.

• The balance of equities strongly favors the injunction. The court found no record evidence of past fraud or a likelihood of impending fraud related to the November 3 election that would justify the rushed implementation of the Final Rule, while the record showed that immediate implementation threatened the disenfranchisement of millions of eligible voters. The request for a stay pending appeal was denied.

• What the injunction covers. The court stays and preliminarily enjoins, as to elections occurring before or on November 3, 2026, implementation or enforcement of the following mandatory sections of the Final Rule in the Domestic Mail Manual (“DMM”):
• DMM Section 705.24.3.1 — mandatory Outbound Ballot Mail Envelope Standards and USPS review
• DMM Section 705.24.3.2 — mandatory Return Federal Ballot Mail Envelope Standards and USPS review
• DMM Section 705.24.4.1 — mandatory Postal Service Federal Ballot Mail Portal registration
• DMM Section 705.24.4.2 — mandatory voter enrollment in the Postal Service Federal Ballot Mail Portal
• DMM Section 705.24.5.1 — in full
• The first two sentences of DMM Section 705.24.5.2
• DMM Section 705.24.5.3(a), (b), and (c)

The injunction does not bar States from voluntarily complying with the Final Rule consistent with their state laws, nor does it prohibit USPS from continuing to prepare for implementation for elections after November 2026, including by building the portal and training staff.

III.  The First Circuit’s September 10, 2026, Order

The Government immediately appealed to the First Circuit and filed emergency motions to stay the preliminary injunction. On September 10, 2026, the First Circuit issued an order denying those motions in full. USPS’ request for an administrative stay was denied as moot.

• The Final Rule is likely unconstitutional. The First Circuit agreed with the District Court that the Final Rule is likely a regulation of the manner of holding elections for members of Congress, which the Elections Clause assigns to the States and Congress, not to an executive agency acting without congressional authorization. The court rejected the Government’s argument that the Final Rule is merely a modest regulation of the mails, finding that “[t]o label this Final Rule as merely a 'modest' regulation of the mails is to focus on the trees while ignoring the forest.” The court also found that the general statutory authorizations on which USPS relied are a “wafer-thin reed” insufficient to support delegation of constitutionally assigned tasks relevant to maintaining the electoral system to the Postal Service. The First Circuit confined its merits analysis to the Elections Clause claim and did not reach the additional statutory grounds on which the District Court had also found likely success.
• The Government failed to engage with the record. The First Circuit noted that the Government's stay motion did not grapple with much of the District Court's reasoning or its factual findings, and thus the Government failed to meet its burden for disturbing any aspect of the preliminary injunction.
• The balance of equities strongly favors the injunction. The First Circuit found no obvious error in the District Court’s conclusion that allowing the Final Rule to take effect for the November 3 election will likely result in the disenfranchisement of millions of voters across the country while providing minimal (if any) gains in combating voter fraud. There is no countervailing record evidence disputing the District Court’s findings on the impossibility of compliance: the inability of some States to reprint compliant envelopes; the likely delays in the envelope review process; the lack of an operative portal; and the Herculean scanning task that would confront USPS with tens of millions of ballot envelopes in the time remaining.
• Organizational standing upheld. The First Circuit rejected the Government’s argument that the preliminary injunction is overbroad because the plaintiff organizations lack standing. The Final Rule directly interferes with those organizations’ core services, including conducting voter registration drives, translating election materials, and educating the public on how to vote by mail. The court found that the organizations’ efforts to counsel their members on how to vote are not mere “issue advocacy” as they are the provision of concrete voter services.

IV.  The Impact of the Ruling and Path Forward

With fewer than 60 days to the midterm elections, the preliminary injunction stands, but the litigation is far from over. Having been denied a stay at both the District Court and the First Circuit, the Trump Administration is expected to file an emergency application for a stay with the U.S. Supreme Court. Several factors will shape that application.

• The Supreme Court’s stay ruling no longer provides a roadmap. The Supreme Court’s prior stay was granted entirely on standing and ripeness grounds — because no final rule existed when the states filed their amended complaint. Those grounds are gone. The Final Rule is now effective, the injuries are concrete, and two federal courts have engaged with and agreed on the constitutional merits. The Supreme Court will have to confront the Elections Clause question directly.
• Two courts have now found against the Government on the merits. Both the District Court and the First Circuit concluded that the Final Rule is likely a regulation of the manner of holding elections, which the Elections Clause assigns to the States and Congress — not to an executive agency acting without authorization. The Government has not defended the merits persuasively before either court.
• The Purcell problem cuts against a stay. The Supreme Court’s Purcell v. Gonzalez doctrine counsels strongly against last-minute changes to election rules close to an election, particularly where confusion and disenfranchisement are likely. While it is expected USPS will seek a stay by the U.S. Supreme Court, a stay at this late stage in the cycle with less than 60 days to the midterm election is questionable. Given this timeline and the expert testimony in the record establishing that compliance is practically impossible for any State in the time remaining, the case for leaving the injunction in place is strong. As both dissenting justices warned in August, the Government’s control over the timing of rulemaking means it can engineer a situation where challenges are perpetually deemed too early or too late.
• Timing is everything. Any Supreme Court action will almost certainly come on an expedited basis, given the November 3 deadline. Election officials should monitor the docket closely as the situation remains highly fluid.

Hodgson Russ Insights

• Takeaways for New York State and local election officials. New York was among the original 23 Plaintiff States and remains a direct beneficiary of the preliminary injunction. With the injunction in place, New York's more than 600,000 anticipated mail and absentee ballot requests for the November 2026 general election can be administered under existing state procedures. New York’s Confidential Voter system aimed at protecting victims of domestic violence might directly conflict with the Final Rule’s portal upload requirement. New York had already purchased non-compliant envelopes, and vendors have stated that rush reprinting is impossible. Election officials should monitor the Supreme Court docket closely and maintain contingency plans in the event the Court acts quickly and grants a stay.
• Do not delay contingency planning. Even while the injunction remains in place, officials should assess what emergency compliance would require, including envelope inventory, vendor availability, and portal enrollment logistics in case the Supreme Court acts quickly.

• Proceed under existing law (for now). The First Circuit’s ruling confirms that New York election officials may administer the November 3, 2026, election under existing state procedures, with no current obligation to redesign ballot envelopes, seek USPS approval, or enroll voters in any USPS portal.

Looking further ahead. Two courts have now agreed: the USPS Final Rule is likely unconstitutional, likely ultra vires, and likely contrary to Title 39. The preliminary injunction stands. But the litigation is not over, and the situation remains highly fluid. The Final Rule remains in effect for elections after November 3, 2026. The First Circuit will rule on the full merits of the preliminary injunction and the underlying challenge to the Executive Order, which could again reach the Supreme Court. County boards of elections and the State Board of Elections should begin long-range planning now for the operational overhaul the Final Rule would require if it ultimately survives constitutional challenge.

Hodgson Russ defended mail-in voting in litigation twice before the Appellate Division and then up to New York’s highest court. Amedure v. State of New York, 210 A.D.3d 1134 (3d Dep’t 2022); Amedure v. State of New York, 232 A.D.3d 48 (3d Dep’t 2024), aff’d 43 N.Y.3d 116 (2024). We are closely monitoring the Executive Order, Final Rule, and related litigation, as timing is critical and this is a quickly developing landscape. 

If you have any questions about the Executive Order, Final Rule, and related litigation, or election matters generally, please contact Christopher Massaroni (518.433.2432), Henry Zomerfeld (716.848.1370), or another member of our Election Law and Campaign Finance Practice. 

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