It is difficult to imagine a weaker case than the one presented by Donald Trump’s former lawyer and now Solicitor General D. John Sauer in his Application to the U.S. Supreme Court for an emergency stay of a permanent injunction.

At present, that injunction prevents the U.S. Postal Service (“USPS”) from refusing to forward mail-in ballots to any citizen whose name does not appear on a yet to be developed and admittedly deficient Department of Homeland Security (“DHS”) Confirmed Citizen List.

The immediate threat that the USPS would engage in that exercise in mass disenfranchisement arose out of the provisions of President Donald Trump’s March 31, 2026 Executive Order (“EO”).

Last month, in California v. Trump, a case filed by 22 States and the District of Columbia, U.S. District Court Judge Indira Talwani granted the Plaintiff States’ motion for summary judgment, finding that there was no contested issue of material facts. Judge Talwani ruled that the EO was “unconstitutional” and ultra vires: to wit, in issuing the EO, President Trump exceeded his Executive authority by usurping powers reserved by the Constitution to the States and to Congress.

Except to the extent that it has been preempted by an Act of Congress, sovereignty to determine eligibility to vote rests exclusively with the States. “The Constitution,” Judge Talwani observed, “does not grant the President any specific powers over elections.” Additionally, she found, “No law enacted by Congress delegates authority to control mail-in voting to USPS.”

The court went on to note that the Constitution’s mandate that the President “take Care that the laws be faithfully executed”, entails an obligation, which, as SCOTUS previously observed, “refutes the idea that he is to be a lawmaker.”

Although the judge limited the scope of her injunction to the Plaintiff States and to federal elections scheduled to take place between now and this November’s mid-term election, the Trump regime filed unsuccessful applications for an emergency stay with both the District Court and with the First Circuit Court of Appeal.

Sauer’s Application to SCOTUS for a stay is akin to a 70-yard “Hail Mary” pass in the waning seconds of a football game. The basis for that observation can be found in the First Circuit’s Order denying the would-be authoritarian regime’s motion for an emergency stay.

Ironically, however, this same weak “Hail Mary” Application creates a moment of grave danger to democracy. That danger can be found in the Supreme Court’s recent misuse of its emergency, so-called Shadow Docket.

Deeply flawed stay request

As detailed by the First Circuit’s decision, despite Judge Talwani’s ruling that Trump’s EO was found to be “unconstitutional”, the Trump regime “does not defend the legality of the EO.” It’s sole basis for seeking the extraordinary remedy of an emergency stay is based upon the specious assertion that the States’ claims were “premature”. They haven’t yet been harmed by it.

Therefore, the Trump regime argued, Plaintiff States lacked standing because the case wasn’t ripe for adjudication as “the EO was not injuring the Plaintiff States at the time they filed their complaint: that it would not injure them soon, because the federal defendants were still implementing it.”

That argument, the appellate court observed, is at odds with the District Court’s factual findings in granting summary judgment — findings which the Trump regime “does not contest.” The District Court found that the illegal and unconstitutional “EO imposed a present injury because it required Plaintiff States to begin planning now on how to comply with its directives, given that the September and November elections were just months away”. (Emphasis added). The EO, the First Circuit observed, compels the Plaintiff States “to expend time and resources now to prevent…chaos, confusion and disenfranchisement.” The appellate court also agreed with the States that the EO was injurious to their Constitutional sovereign power to regulate the time, place and manner of Congressional elections.

Those resources, as reflected in the District Court’s order granting summary judgment, include purchasing ballot envelopes, preparing and printing mail-in paper ballots well in advance of early voting so that they can be timely received by voters, some of whom are serving in our Armed Forces overseas. That, as detailed in the court’s summary judgment, is especially taxing for the lead plaintiff, California, which, by state law, must timely submit a mail-in ballot to every one of its more than 22 million lawfully registered voters.

In a separate case filed by the Democratic Senate Campaign Committee (“DSCC”), the premature filing argument was arguably correctly applied by the DC Circuit Court of Appeal, finding that the DSCC would not suffer an injury until the USPS actually implemented the provisions of the EO. But in the State Plaintiffs’ case, the First Circuit relied upon the uncontroverted findings that the States had already suffered harm. “All told, between the compressed timelines and anticipated changes to the States’ election processes,” the First Circuit observed, “the summary judgment record indicates the EO has already produced ‘an incredible strain’ on State election officials and their teams”.

The First Circuit decision pointed to the chilling impact of the EO’s threat to criminally prosecute State and local election officials if they fail to comply with the EO’s admittedly deficient lists as to who qualifies as a citizen. By contrast, the EO does not contain a criminal prosecution threat against the DSCC.

The First Circuit also noted “the federal defendants” conceded they “are moving ahead to implement the directives in the [illegal] EO” and that, but for the injunction, they would seek “to enforce the EO nationwide for the November 2026 election.”

The First Circuit’s demolition of the Trump regime’s deeply flawed stay request was not lessened by the partial dissent authored by the Trump-appointed Judge Joshua Dunlap. To the contrary, Judge Dunlap agreed with the majority on all aspects of its refusal to issue a stay with the exception of Section 2(a) of the EO, which directs DHS to develop and forward the Confirmed Citizen Lists to the States but does not, by itself, compel the States to comply with them.

The deficiencies of Trump’s motion for a stay at SCOTUS will no doubt again be addressed by the Plaintiff States on August 3 when they file their response in compliance with an Order issued by Justice Ketanji Brown Jackson.

Dangerous moment

Since the beginning of the second Trump administration, there’s been an unprecedented increase in the Supreme Court’s use of its “shadow docket“, a fast-track process for emergency applications in which the Trump regime seeks temporary relief from lower court orders — here a stay of a permanent injunction. The Trump regime has prevailed in the vast majority of those emergency appeals.

That doesn’t necessarily mean the regime will prevail in this instance. Indeed, just last month the Supreme Court, by way of a 5-4 decision in Watson v. Republican National Committee, narrowly ruled that the federal Election Day statutes do not prevent deep red Mississippi from applying a state statute providing for the counting of mail-in ballots postmarked by Election Day but received up to five days thereafter.

Watson entailed an important, yet disturbingly narrow victory for the right to have every lawfully cast vote counted. In this case, the stakes are much higher. As we observed when covering Judge Talwani’s original decision, the EO entails an end-run around Trump’s failure to secure Senate approval of the House passed SAVE Act. The Center for American Progress estimated that the Congressional SAVE Act, if adopted by both chambers and signed by the President, could disenfranchise as many as 69 million women who took on their spouse’s name when they married. Fortunately, to date, Trump has failed to secure Senate approval of the Act which could serve as the death knell for this nation’s nearly 250-year-old experiment in representative democracy.

But now, democracy’s very survival is in the hands of what Sen. Sheldon Whitehouse (D-RI) described as a Supreme Court that has been “captured” by the same right-wing billionaires who’ve benefited from the policies of a corrupt and increasingly authoritarian Trump regime.