The trial court in California v. Trump and LWV v. Trump issued a TRO last Thursday (August 27) preventing USPS from implementing key parts of its new rule on mail-in ballots. The next day, August 28, the government appealed the order to the First Circuit and asked the trial court to put its TRO on hold pending appeal (a procedural step that appeals courts typically want to see before they rule on a request for a stay).
As of 1:30 pm ET on August 31, that stay order before the trial court remains pending, but I expect a ruling to come at any time. Once that happens, DOJ will move for a stay in the First Circuit (First Circuit case numbers 26-1988 and 26-1989) and likely ask for an administrative stay as the First Circuit considers the matter. The effect of an administrative stay would put the off again-on again-off again USPS rule back into effect while the First Circuit considers a stay; I think it is unlikely the First Circuit will grant an administrative stay. The First Circuit may ask for expedited opposition to a stay, meaning that we likely will have briefing done this week, and a possible First Circuit order by early next week, which would then tee up this cycle to start again some time after Labor Day at the Supreme Court.
However….there are many other moving parts. First, DOJ could try to leapfrog the First Circuit and go directly to SCOTUS, given the imminence of mailing absentee ballots. Such leapfrogging is disfavored, particularly in a case involving a TRO rather than a preliminary injunction. (TROs are ordinarily unappealable, but there are exceptions.)
AND….the trial court is still set for a hearing on September 3 on the motion for a preliminary injunction. So as soon as Thursday the trial court could issue a new order, with perhaps more fulsome reasoning on the statutory and constitutional questions, and the whole stay matter described above could start again.
AND…there’s a separate case in D.C. before Judge Nichols, where the ruling would come some time after briefing concludes on September 8.
SO….when will this matter get to SCOTUS? There’s no way yet to tell.
