On Thursday morning, a Justice Department lawyer stood in a Boston courtroom and could not tell a federal judge whether the Postal Service’s system for screening mail ballots is ready to run. On Thursday afternoon, before that judge could rule and before the appeals court above her had acted on the government’s pending request, the Solicitor General went straight to the Supreme Court. And at noon today, Friday, September 4, North Carolina’s county election boards begin mailing the first ballots of the 2026 midterms, under whatever rules exist when the trucks leave. Sixty days before Election Day, the fight over how America votes by mail is now running in three courts at once, and the government has asked the highest of them to move before the lowest has finished.
“You Can’t Tell Me the Government Is Ready to Go?”
The hearing before U.S. District Judge Indira Talwani ran nearly two hours and was, by the account of reporters in Courtroom 9 of the Moakley courthouse, a difficult morning for the government. The question was whether Talwani should convert the 14-day temporary restraining order she issued on August 27, which blocks the Postal Service from forcing states to comply with its new mail ballot rule, into a preliminary injunction lasting through the election. The rule requires states to redesign ballot envelopes to federal specifications, assign a unique barcode to every envelope, and submit to the Postal Service a list of the name and address of every voter who requested a mail ballot. States that do not comply would have their ballots refused.
Talwani’s frustration centered on what the government had not told her. The Postal Service, she said, had never explained how the rule would work in practice, how many ballots might be affected, or whether its voter list portal was operational. “I have very little from you,” she told the Justice Department and the Republican-led states that intervened on its side. When the government’s lawyer could not say whether the portal was ready to launch, the day before the first state mails ballots, she asked: “We’ve been here for a week and you can’t tell me the government is ready to go?” She gave the department until 3 p.m. to supplement the record.
“Sometime Next Week”
The 3 p.m. filing, per Democracy Docket, was a declaration from Steven Monteith, the Postal Service’s Chief Customer and Marketing Officer, stating that the agency continues “to make refinements to the Portal” and anticipates “being in a position to make the Portal available to users for voluntary use by sometime next week.” In plain terms: the system at the center of a rule the government has been defending in court for weeks, and which it says must govern ballots going out today, is not yet available even for states that want to use it voluntarily.
The declaration arrived two days after a Postal Service whistleblower’s account, reported by NBC, CNN, and Axios, that the barcode screening system was built in weeks rather than the nine months to a year such a project normally takes, tested in less than a week, and designed so that a single failed barcode could cause an entire batch of lawful ballots to be rejected. At the hearing, Talwani put that scenario to the intervening states directly, asking what would happen if 9,999 voters in Harris County, Texas could not vote because of an error with one ballot. The states’ lawyer, Missouri Solicitor General Louis Capozzi, replied: “Again, we just don’t see that as a real risk.”
The intervening states also proposed that Talwani limit any injunction so that the Postal Service could still reject some ballots in states choosing to comply, which they argued would give the court “real world evidence” of how the rule operates. Talwani’s response: “So we’re gonna do a test run on this election?” And then: “We’re not talking about an intellectual puzzle game. We’re talking about people’s right to vote.”
Straight to the Supreme Court
Talwani said she would not rule from the bench but would issue her decision “as soon as possible.” The Justice Department did not wait. At 3:40 p.m. Thursday, Solicitor General D. John Sauer filed an emergency application at the Supreme Court, docketed as U.S. Postal Service v. California, No. 26A297, asking the justices to stay Talwani’s temporary restraining order and to issue an immediate administrative stay, a short-term freeze, while they consider the request.
Two things make the filing unusual. First, temporary restraining orders are generally not appealable at all; that is the point Talwani made on Monday when she declined to pause her own order, and it is why the government is now arguing that her TRO should be treated as though it were a preliminary injunction. Second, the government’s own stay motion at the First Circuit Court of Appeals, the court that ordinarily hears appeals from Boston, was still pending when it went to the Supreme Court. Per Democracy Docket, the department is asking the justices to freeze Talwani’s order until the First Circuit weighs in, meaning it has asked the highest court to act before the intermediate court has finished. SCOTUSblog notes this is the administration’s second trip to the Supreme Court on mail voting in less than six weeks.
Sauer’s application argues that the rule “imposes only modest envelope-design and addressee-information requirements,” that the Postal Service has long set handling rules for sensitive mail, including cremated remains and replica explosives, and that Talwani’s order causes “serious irreparable harm” because “two States, North Carolina and Alabama, will begin sending ballots to voters, the first as soon as September 4. Once those ballot envelopes enter the mailstream, there is no retrieving them.” At the hearing, the League of Women Voters’ lawyer had already addressed the cremated remains comparison: in those cases, Congress passed a statute first. Here it has not.
Justice Ketanji Brown Jackson, who handles emergency matters from the First Circuit, did not grant the administrative stay Thursday. She ordered the challengers to respond by 10 a.m. Eastern on Tuesday, September 8.
The Order They Appealed May Not Exist by Tuesday
There is a structural oddity at the center of the government’s move, and both SCOTUSblog and Democracy Docket flagged it. The order the Justice Department has asked the Supreme Court to lift is a 14-day restraining order that expires on its own on September 14. Talwani is, at this moment, deciding whether to replace it with a preliminary injunction. If she does, the injunction supersedes the TRO, the Supreme Court application is aimed at an order that no longer exists, and the government would have to start over with a new emergency request against the new ruling. The department’s lawyer told Talwani at the outset of the hearing that it would appeal to the Supreme Court immediately if she grants the injunction. Talwani, for her part, said she is “not the final word” but does not want her ruling “bouncing back and forth” between three courts: “That doesn’t do anybody any good.”
She also pressed the department on a broader pattern. The government has argued that even after the rule is final, challengers must first seek relief from the Postal Regulatory Commission, an executive branch body with up to 90 days to respond. With the election 60 days away, Talwani noted, that argument amounts to running out the clock. “It’s a time question,” she said. “And I think we all understand a time crunch here.” The department’s closing position: “We concede nothing.”
Noon in North Carolina
None of this stops the calendar. Under state law, North Carolina’s 100 county boards begin mailing absentee ballots to voters who have already requested them today, starting at noon, the earliest date in the nation. Sam Hayes, executive director of the State Board of Elections, told reporters Thursday that the state’s envelopes have already been approved by the Postal Service, making North Carolina the first state to announce it has cleared the rule’s design requirements; under the restraining order, that compliance is voluntary rather than mandatory, and voting by mail in the state proceeds unchanged. Alabama follows on September 9. Roughly 47 million Americans voted by mail in 2024, about one in three voters, and the whistleblower’s account warned that the new system could result in some voters receiving ballots late or not at all.
Only one state, Alabama, has told the court it is likely able to comply with the rule in time, a point the League of Women Voters’ lawyer made at the hearing. The rest of the country’s election officials are mailing ballots into a system whose central component, by the government’s own Thursday afternoon filing, will not be available until next week.
Where Things Stand
The sequence now: Talwani’s preliminary injunction ruling could come at any hour. The First Circuit stay motion remains pending. The Supreme Court response is due Tuesday, September 8, at 10 a.m., the same morning Canada’s retaliatory tariffs on American goods take effect. The restraining order expires September 14. And as of today, ballots are in the mail. Across three months of this litigation, every court to reach the merits has found the administration’s mail voting policy likely unlawful; the administration’s answer has been to seek emergency relief from a higher court each time, and this week, for the first time, to seek it before the court below had even finished. Sixty days remain.