Three days ago I wrote about three lawsuits filed in the three days following President Trump signing Executive Order 14,399 directing various agencies and departments of the federal government, including the U.S. Postal Service. In that article I looked at how District Judge Carl Nichols in the District of Columbia dealt with three preliminary injunction motions filed by Democrat Party affiliates and Democrat interest groups. On May 28, 2026, he denied all three motions, and his decision was affirmed by the D.C. Circuit Court of Appeals on July 28. I explain more about the Appeals Court’s decision below.
I promised in my earlier article that I would contrast Judge Nichols’ approach in resolving the Preliminary Injunction motions with the approach taken by District Judge Indira Talwani in the District of Massachusetts where two nearly identical cases were filed at almost the same time as the three cases in D.C. There is more detail on her actions below as well, but basically she held that the issues raised by the Complaints were not yet ripe — not subject to judicial review — to the extend future elections might be effected, but they were ripe as to the upcoming 2026 mid-term elections. On that limited basis she granted the injunctions, but limited them to some degree because of a case I was not aware of — a 2020 case filed by the NAACP against the Trump Administration over the handling of mail-in ballots given various COVID restrictions that were placed on governmental operations in the summer and fall of 2020. The Biden Administration later settled that case, but in a bit of “collusive settlement” engineering, the “Consent Decree” binds the U.S. Postal Service in the way it prioritizes election-related mail up to and through the 2028 election.
Before I go into the details on the cases — other than the three cases pending before Judge Nichols in D.C. — I want to give you a chronological order of events in several related cases so you can appreciate just how complicated this lawfare against the Trump Administration’s efforts to enhance election security and integrity has become — all dates are in 2026 except where otherwise noted:
March 31 — President Trump signs Executive Order No. 14,399. It has four main functions: 1) create a state-by-state list of U.S. citizens eligible to vote using data already collected by a variety of federal agencies; 2) directs states to notify USPS if they intend to use the Postal Service in conducting some/all of their election; 3) states intending to use the Postal Service must provide a “Participation List” of all individuals who will be authorized by each state to participate in “Vote by Mail” processes; 4) Postal Service to begin rule-making to adopt a standardized ballot envelop for use in all states, with such envelope including a security feature that identifies the name of the sender using a bar code or similar marking device from the individuals on the “Participation List.” All federal agencies are reminded to report all instances of vote fraud, and aiding/abetting, to DOJ.
April 1 — Democrat Party entities file a complaint (DSCC v. Trump) against EO 14,399 in D.C. District Court, and seek to have case assigned to Judge Colleen Kollar-Kotelly based on other election law cases decided by her in 2025.
April 2 — League of United Latin American Voters v. Trump is a second lawfare complaint filed seeking to block implementation of EO 14,399, and was also assigned to Judge Kollar-Kotelly.
April 2 — League of Women Voters v. Trump, challenging EO 14,399 was filed in the District of Massachusetts, and assigned to Judge Talwani.
April 3 — NAACP v. Trump, challenging the same EO was filed in D.C. District Court and assigned to Judge Kollar-Kotelly.
April 3 — California v. Trump — 23 states as plaintiffs filed in District of Massachusetts and assigned to Judge Talwani.
April 8 — DOJ files Objection To Related Case Notice in D.C. and for Reassignment of Case.
April 9 — Motion to reassign granted, and three cases in D.C. reassigned to Judge Carl Nichols.
April 10 — Motions for Preliminary Injunction filed in all three D.C.cases.
April 14 — Judge Talwani enters Scheduling Order regarding briefing of dispositive motions in California v. Trump — 11 days after the case filed. All briefing on motions to dismiss and motions for summary judgment to be complete by May 22, and with a hearing date on June 2.
April 22 — Upon agreement of all parties, the two cases before Judge Talwani were consolidated, and the briefing schedule in California v. Trump was adopted for both cases.
April 23 — Plaintiffs in League of Women Voters (D.Mass) file Motion for Preliminary Injunction, but limited to Sec. 3 regarding the state-prepared “Participation List” and directive that ballots not be returned by the Postal Service for anyone not on a State’s list. The motion for Preliminary Injunction was briefed and argued along with the other motions filed in the case.
April 23 — Plaintiff states in California v. Trump file Motion for Preliminary and Permanent Injunction against Sections 2 (states’ citizens list), Section 3 (state participation list and uniform ballot design), and 5 (all federal agencies to report election fraud to DOJ).
May 7 — DOJ files a combined motion to dismiss both D.Mass cases that serves as an opposition to motions for Preliminary and Permanent Injunction as well.
May 28 — Preliminary Injunction denied by Judge Nichols in three cases filed in D.C. District Court.
June 1 — Notice of Appeal filed in three D.C. cases.
June 2 — Hearing before Judge Talwani on motions for injunctive relief and to dismiss before Judge Talwani in both California v. Trump and League of Women Voters v. Trump.
June 2 — U.S. Postal Service issues notice of proposed rule-making consistent with Section 3 of EO No. 14,399. As of this date, all further efforts to comply with the EO prior to the Nov. 2026 election halted.
June 3 — Motion to Enforce Settlement Agreement filed in NAACP v. US Postal Service alleging EO No. 14,399 violates terms of Settlement Agreement entered between Biden Administration and NAACP on December 17, 2021.
June 11 — DOJ files Opposition to Motion to Enforce Settlement Agreement — Judge Emmit Sullivan in D.C. gave DOJ only one week to respond.
June 18 — Judge Talwani grants motion to dismiss and denies motion for injunctive relief in both cases for all elections AFTER November 2026, but grants injunctive relief barring implementation of Sec. 3 (state participation lists and uniform ballot) for the Nov. 2026 election.
June 25 — Judge Talwani grants motion for summary judgement for California and 22 other states on the basis that EO 14,399 is void on its face, and enjoins the implementation of Sections 2 and 3 for any purpose now and in the future as against the states. *** But this only applies to the states that are Plaintiffs in the case.
July 1 — DOJ files Notice of Appeal in First Circuit Court of Appeals and a Motion to Stay Order entered by Judge Talwani in District of Mass.
July 1 — Judge Sullivan grants the Motion to Enforce Settlement Agreement from the NAACP case filed in 2020, and enjoins U.S. Postal Service from enforcing EO Sec. 3 as set forth in the procedures described in the Proposed Rule-Making issued by the U.S.P.S. on June 2, 2026.
July 7 — Judge Talwani denies DOJ’S motion to stay pending appeal.
July 13 — D.C. Circuit Court of Appeals affirms Judge Nichols’ denial of motions for preliminary injunction.
July 13 — Judge Talwani Issues Order noting that Judge Sullivan’s July 1 Order eliminates the “irreparable harm” finding in her earlier orders related to the 2026 elections, and vacates injunction. But she notes that Plaintiffs may file for a new injunction if Judge Sullivan’s Order is vacated pending appeal or otherwise reversed.
July 17 — The D.C. Circuit Court of Appeals grants DOJ’s Motion to Stay Judge Sullivan’s Order enforcing the Settlement Agreement pending appeal — including his order prohibiting implementation of Sec. 3 of the EO.
July 20 — League of Women Voters files a Second Motion for Preliminary Injunction after DC Circuit stay’s Judge Sullivan’s injunction on enforcement of Sec. 3.
July 25 — First Circuit Court of Appeals denies DOJ’s Motion to Stay.
July 27 — DOJ filed an Application for Stay of First Circuit’s decision with the Supreme Court
Aug. 3 — Plaintiffs filed response to Application for Stay.
Aug. 4 — DOJ filed a Reply in the Supreme Court.
Aug. 7 — Judge Talwani holds hearing on Second Motion for Preliminary Injunction, but does not rule from the bench at the end of the hearing.
Simple — right? Just 5 cases in two courts with opposite outcomes.
Summary: Three cases were filed in the District of Columbia on April 1, 2, and 3. All eventually end up before Judge Nichols. He denies motions for a preliminary injunction on the basis that the plaintiffs in the three cases cannot — at this time — show any actual harm they will suffer if the federal agencies move forward with implementing the EO. On that basis he finds that any complaint challenging the EO is not “ripe,” and therefore he lacks jurisdiction to take any action. His decision is upheld by the D.C. Circuit Court of Appeals
Two cases are filed in the District of Massachusetts on April 2 and 3 — one has 23 States named as plaintiffs. As to that case, Judge Talwani finds the EO does require the Plaintiff States to take specific action or otherwise be prejudiced in the use of mail, and because the Executive has no authority to determine how elections are conducted, she goes forward and makes a finding that the EO is unlawful. She enjoins the Administration’s directives to the Postal Service regarding a new ballot envelop design, and from enforcing the requirement that states provide a participation list — but only for the 23 States that are plaintiffs.
In the middle of everything, Judge Sullivan in D.C. comes in to rescue Judge Talwani from the consequences of Judge Nichols’ well thought-out decision by finding the Executive Order violated a Settlement Agreement from five years earlier between the Biden Administration and the NAACP. But the D.C. Circuit is once again the “skunk at the picnic” when it stays Judge Sullivan’s decision.
Did I mention the D.C. Circuit opinion last month in a completely unrelated case — New York v. Trump (2020) — holding that district courts lack jurisdiction over challenges to changes to USPS regulations regarding mail delivery because Congress has created an administrative review process before the “Postal Regulatory Commission” and
The Postal Commission review scheme contains all the hallmarks of a statutory scheme that precludes district court jurisdiction. The scheme provides for initial administrative review followed by judicial review in the court of appeals…. Interested persons may file a complaint against the Postal Service with the Commission. After the Commission has adjudicated a complaint, aggrieved parties may petition for review in the D.C. Circuit.
In 2020, the Postal Service made changes to how mail would be collected and delivered, changes the Plaintiff States thought would impact the 2020 election. Federal law requires USPS to obtain an “advisory opinion” from the Commission before making changes in postal service that will likely apply nationwide. The Postal Service did not obtain such an advisory opinion before making the changes in 2020. The States sued on that basis.
That case was assigned to Judge Sullivan as well, and he granted an injunction preventing the changes from being put in place based on the failure to obtain an advisory opinion and because there was insufficient time before the upcoming Nov. 2020 elections for the case to be resolved. The States did so without first filing a complaint with the Commission.
The aspect of the 2020 case that could have a significant impact on what happens between now and November is how the D.C. Circuit considered the proximity of the election and the “irreparable harm” standard for injunctive relief:
First, the States argue that pursuing a complaint before the Commission … would have resulted in irreparable harm…. [T]he Postal Policy Changes would have sharply undermined their ability to provide public services and the ability of their residents to vote by mail. Because the Commission can take up to 90 days to act on a complaint, the States argue they would have suffered irreparable harm if they were unable to obtain immediate relief from a district court.
We decline to adopt a general “irreparable harm” exception by which parties can evade jurisdictional channeling provisions. When Congress channels claims to a particular forum, it imposes the constraints of that forum on the channeled claims…. Here, Congress has channeled claims against the Postal Service to the Commission and allowed the Commission up to 90 days to adjudicate those claims…. An irreparable harm exception would undermine Congress’s creation of the exclusive review scheme and the remedial limitations that accompany it…. Moreover, the Supreme Court has recognized that many statutory review schemes “require parties to wait before [obtaining appellate review], even when doing so subjects them to significant burdens.”
This is only the D.C. Circuit, and that Circuit had already upheld Judge Nichols’ refusal to grant a preliminary injunction. But I would note that this decision was unanimous, and included two judges appointed by Pres. Obama, including the Chief Judge of the D.C. Circuit, Judge Srinivasan. Key to the decision is the unanimous view that an impending election does not give rise to a risk of “irreparable harm” if courts are unable to block implementation of the new procedures. The first step remains the filing of a complaint with the Commission regardless of the proximity of the change to an election date.
The case where an injunction still applies is California v. Trump, in the First Circuit. So, what exactly is it that Judge Talwani has seized upon in that case to find the directives in E.O. 14,399 violate federal law?
Recall that there are 23 states as Plaintiffs in that case. Those are the only parties over whom Judge Talwani can pretend that she has jurisdiction, as they are the only ones who sought injunctive relief.
On June 25 she entered summary judgment on behalf of the states with regard to Sections 2, 3, and 5 of the EO, as they would be applied to the upcoming 2026 election. Judge Talwani found the claims attacking the EO as related to elections after Nov. 2026 to not be ripe for review (same as Judge Nichols who found no cognizable injury at this time), while finding the same claims if applied to the upcoming November 2026 election to be ripe.
Judge Talwani accepted the claims by the States that various state statutes require them to be taking actions now with regard to mail-in voting in the Nov. 2026 election, whereas no such action is required now for later elections. On that basis they claim these issues are “ripe” with regard to Nov. 2026 as they are directly injured by having to prepare to respond to new regulations under the E.O.
The Trump DOJ responded by pointing out that the E.O. required no state action — such action would only be required in response to Final Rule-Making, and at the time of the motion there was no Final Rule-Making — only the issuance of a proposed Rule. It remained possible that the rule-making process might produce a different Final Rule than the one proposed, or no Final Rule at all.
As for the specific objections to the individual Sections of the EO relied upon by Judge Talwani, the States conceded that the mere creation of state-by-state citizenship lists under Sec. 2(a) imposed no harm on the States because the EO did not obligate the States to do anything with those lists. They instead focused on Section 2(b).
But that didn’t stop Judge Talwani. Based on her view that the E.O. was required to set forth a legal basis for the authority being exercised by the President therein, the absence of an identified source for that authority rendered the E.O. unlawful on its face.
The States claimed that 2(b) is an implicit threat of criminal prosecution against any state official who caused election materials to be sent to any state resident not on the citizenship list. No one disputed that there is a federal statute making it a crime for an ineligible person to vote in an election where federal offices are on the ballot.
But, once again, the imaginary Bogeymen in Judge Talwani’s head lead her to see a future where poor state bureaucrats carrying out state law will have these “citizens lists” used against them to further President Trump’s partisan campaign efforts.
Where the President seeks to have the Attorney General and DOJ rely on the Confirmed Citizens Lists to support the President’s stated mission to reduce voter fraud… the Lists are being used as an enforcement mechanism that has some type of legal consequence, or at minimum, as a threatened enforcement mechanism that will chill local election officials from complying with legal obligations to ensure that all eligible citizens may vote. Accordingly, to the extent the EO attempts to intimidate local election officials to use the necessarily incomplete Confirmed Citizenship Lists as a resource, lest they face criminal prosecution, such efforts fall outside the Presidents’ Article II and otherwise-delegated authority.
So the President CANNOT focus the attention of the Attorney General and DOJ on a particular area of concern involving the violation of federal law if a tool developed to advance that effort is something that state bureaucrats might fear could be used against them in the future while carrying out their “legal obligations to ensure that all eligible citizens may vote.”
No where in the E.O. is it suggested that states would be prevented from allowing all “eligible citizens” to vote. The E.O. only addresses one particular method of voting — a subject I’ll return to in my next article.
Judge Talwani next turned to Section 3 — requiring states to give notice to the Postal Service of their intent to make use of the mails in an election, and to generate for Postal Service use a “Participation List” of all registered voters within the state authorized to receive and submit mail-in ballots.
In rejecting Sec. 3 Judge Talwani sang the same tune — no law passed by Congress delegates to the U.S. Postal Service the authority to control mail-in voting procedures.
“Accordingly, USPS lacks statutory authorization to promulgate any binding regulations on mail-in voting.”
She ignores entirely the idea that the delivery of a blank ballot to a person on a participation list and return of a completed ballot by that same person are not themselves “voting procedures” — they are mailing procedures. They merely involved transmittal the ballots — not casting or counting of votes. If a blank ballot is sent and a blank ballot is returned, no vote has been cast and no vote can be counted.
As for the changes to the ballot envelopes themselves, she makes the very same finding that Judge Sullivan made — and was later reversed by the D.C. Circuit — over the failure by the Plaintiffs to file a complaint first with the Postal Regulatory Commission. As Judge Sullivan did, she found that the failure of the Postal Service to obtain an Advisory Opinion from the Postal Regulatory Commission with regard to the proposed changes to the ballot envelopes meant that the regulation was rendered invalid and unenforceable. Like Judge Sullivan before her — later reversed by the Appeals Court — she did not address at all the “channeling” provision in the Postal statutes that required persons challenging the regulatory change to file their complaint with the Postal Commission, and NOT in federal district court.
Finally, as to Sec. 5 of the E.O., Judge Talwani describes the Section requiring DOJ and all other executive agencies take all lawful steps to deter and address noncompliance with Federal law, and that evidence of violations of existing Federal laws by State or local election officials may be referred to DOJ for consideration of investigation or charges. It also “recommends” that state officials retain election records for five years.
Judge Talwani calls attention to the fact that in the Civil Rights Act of 1960 establishes record retention rules with regard to election materials, and requires they be retained for 22 months. The failure to do so is punishable as a crime.
But she then does something that reflects either extreme partisan bias or shockingly low intelligence, when she writes:
Congress, pursuant to its Elections Clause power, has set a maximum record retention period of twenty-two months for election materials. U.S. CONST. art. I, § 4, cl. 1.; 52 U.S.C. § 20701. Congress has also expressly provided a role for the Executive Branch, permitting DOJ to investigate and execute the law by obtaining access to those papers pursuant to a specific process. 52 U.S.C. § 20703. Nowhere in Title III of the Civil Rights Act, or any other federal law, does Congress delegate to the President the power to set additional record retention requirements.
First, the record retention period in the Civil Rights Act is a MINIMUM of 22 months, not a maximum. There is no maximum and states are free to retain them for however long they choose.
Second, the 5 year period set forth in Sec. 5 of the EO is phrased as a “recommendation” — how long the records “should” be retained. There is no consequence for failure to do so in the E.O.
Based on the above, Judge Talwani declared the E.O to be “ultra vires” — not supported by any lawful authority and therefore unlawful on its face. She issued a permanent injunction barring is enactment — but only as to the 23 states who were Plaintiffs in the case.
UPDATE:
I was done with most of the above, and getting ready to publish, when Judge Talwani granted a second injunction — this time a preliminary injunction in the League of Women’s Voters case. This injunction does operate nationwide as it prohibits the Postal Service from taking any steps to carry out the policies and procedures directed by President Trump in the Executive Order.
Recall from above that she first addressed the League case on June 18 when she dismissed all claims in the case, other than those that would apply to the November 2026 elections. She also granted a motion for a preliminary injunction only as to Sec. 3 — the requirement that states provide a “participation list” for vote-by-mail voters, and ordering a uniform design for ballot envelopes.
On July 13 she entered a Supplemental Order noting that in NAACP v. Trump, in the District of Columbia, Judge Sullivan had also enjoined the Postal Service from enforcing Sec. 3 on the grounds it violated a 2021 settlement agreement entered into by the Biden Admin. But Judge Talwani noted that if Judge Sullivan’s Order was set aside for any reason, the plaintiffs could return in this case and file for a second Preliminary Injunction.
After the D.C. Circuit stayed Judge Sullivan’s Order, on July 20 the Plaintiffs in League v. Trump did precisely what Judge Talwani told them to do — the filed a second motion a preliminary injunction. The briefing was completed in relative swift fashion and she held a hearing on the motion last Friday.
This morning she entered an Order granting the Preliminary Injunction. As with their first effort, the motion and order in this case dealt only with Sec. 3 — the “Participation Lists” and the ballot return envelope.
Most of her grounds repeat points already addressed above, and I’m not going to make this very long article any longer by going into them here.
As noted above, DOJ has already filed a Motion to Stay her Injunction in the California case. That has been fully briefed before the Supreme Court as of August 4. So the Court has had the matter for 8 days. The Court can grant or deny the stay application without further comment. Given the time that has passed, it is likely some Justice(s) is writing a statement in support of or opposition to the outcome of the vote on the Stay.
I’m certain Judge Talwani’s second injunction will quickly be added to this. But since it involves different parties — not States — and the justification by Judge Talwani for granting the injunction is different, the Court is unlikely to act on the first case until it receives the anticipated filing(s) in this case.
Finished - finally.
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