Kalshi Has Until November 9 to Answer New Jersey at the Supreme Court

The Supreme Court of the United States on September 22, 2026 extended the deadline for a response to New Jersey's petition in Flaherty v. KalshiEX, LLC from October 8 to November 9, 2026, according to the Court's docket in case No. 26-299, which as of September 28, 2026 leaves the state's attempt to enforce its sports-wagering law against Kalshi's event contracts without an answer on file until six days after the November 3 general election.

The petition was filed on September 2, 2026 by Mary Jo Flaherty, the interim director of the New Jersey Division of Gaming Enforcement, and Jennifer Davenport, the state's attorney general, both in their official capacities, and it was placed on the docket on September 8, 2026. It asks the Court to review the April 6, 2026 decision of the U.S. Court of Appeals for the Third Circuit in No. 25-1922, which affirmed a preliminary injunction barring the Division from enforcing New Jersey's sports-wagering law against Kalshi while the case is litigated. This is New Jersey's own case in every respect that matters to a reader here: the Division and the attorney general are the petitioners, the contracts at issue are offered to people in New Jersey, and the Sports Wagering Act is the state law the courts have so far barred the state from enforcing against them.

The question New Jersey put to the Court

The petition states its question in one sentence: "Whether the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act preempted States from regulating sports bets that occur within their jurisdictions if those bets are offered on markets registered with the Commodity Futures Trading Commission." Everything else in the 33-page brief is an argument that the answer should be no and that the Court should say so now.

The petition's own account of how the case arose is the record a reader can check. Kalshi, which operates an exchange registered with the CFTC as a designated contract market, began offering contracts on sports outcomes in January 2025. The Division sent Kalshi a cease-and-desist letter in 2025 stating that those contracts violated the Sports Wagering Act, N.J. Stat. Ann. section 5:12A-11, "which only permits licensed entities to offer sports wagering to patrons located in New Jersey," and that contracts on collegiate events in New Jersey violated the state constitution. Kalshi sued in the District of New Jersey to stop enforcement, arguing that the Commodity Exchange Act, as amended by Dodd-Frank, preempts state sports-wagering law because federal law occupies the field of trading on CFTC-registered markets. The district court, Judge Edward S. Kiel in No. 1:25-cv-02152, granted a preliminary injunction on April 28, 2025, holding that the Act likely preempts the state's law because the contracts are "swaps" within the CFTC's exclusive jurisdiction. The state appealed.

The petition also describes the scale of what is being fought over, and it does so in the Ninth Circuit's numbers: in 2025, it says, 90 percent of Kalshi's trades were tied to sports and those trades produced 95 percent of its revenue. Those are the petitioners' figures, drawn from another court's opinion, and they are reported here as the state's characterization of the business rather than as a finding in this case.

What the Third Circuit decided

The Third Circuit heard argument on September 10, 2025 and decided the appeal on April 6, 2026, in a precedential opinion by Judge Porter joined by Chief Judge Chagares, with Judge Roth dissenting. The majority's holding is stated in its opening paragraph: "Because Kalshi has demonstrated a reasonable chance of success on its argument that the Commodity Exchange Act preempts otherwise applicable state law, we will affirm." The court's docket, read through CourtListener, shows the judgment entered the same day with costs taxed against the state and the mandate issued on April 28, 2026.

Two features of that decision explain why the state went to Washington. First, it is a federal appellate ruling that a sports event contract on a CFTC-registered exchange is a "swap" under the Act, which is the premise on which its field- and conflict-preemption holdings rest. Second, it is a ruling on a preliminary injunction, not a final judgment: the standard the majority applied was a "reasonable chance of success," and the petition describes no ruling on the merits in the district court. The dissent, as the petition summarizes it, would have held that New Jersey's law is not preempted because Kalshi "can comply with both New Jersey and federal law" and because treating these contracts as swaps would "take the definition of swaps to its logical extreme," a point the majority did not adopt.

The split the petition leans on

The petition's first reason for review is that the question "has generated a direct and acknowledged split." The other side of that split is the Ninth Circuit's decision in Kalshi's Nevada case, which CourtListener's docket for KalshiEX, LLC v. Assad records as an opinion filed August 28, 2026 by Judges Nelson, Bade and Lee, affirming in part and remanding in part. New Jersey's petition describes that opinion as disagreeing with the Third Circuit's "conclusion, interpretation, and methodology," and it was filed five days after the Ninth Circuit ruled. Kalshi, for its part, filed a petition for panel rehearing and rehearing en banc in the Ninth Circuit on September 9, 2026, per the docket entries in case numbers 25-7187, 25-7516 and 25-7831, so the Nevada side of the split is itself still moving.

The petition's second and third reasons are that the question is important and that the decision below is wrong. Whether either is so is for the Court, and this page draws no conclusion on it. What the record does establish is narrower and more useful: which court said what, on which date, and what remains in force.

The calendar the docket sets

The docket is short and every entry on it is dated. On June 26, 2026 the state applied to Justice Alito for more time to file its petition, and on July 1 he extended the deadline to August 4, 2026. On July 22 the state asked for more, and on July 24 the deadline was extended to September 3. The petition was filed on September 2, 2026 and docketed on September 8, with a response due October 8. On September 18 a motion to extend the time to file a response was submitted to the Clerk, and on September 22, 2026 it was granted, moving the deadline to and including November 9, 2026. The same day, September 22, 2026, the National Council of Legislators from Gaming States filed a brief as amicus curiae in support of the petitioners, with Marc W. Dunbar of Jones Walker LLP as counsel of record, arguing that if federal law wholly preempts the regulation of Kalshi's sports contracts it would "call into question many state laws, regulations, and negotiated tribal gaming compacts," and asking the Court to grant the petition; it is the only amicus filing on the docket. The Third Circuit's own docket shows a notice of the petition entered on September 9, 2026.

While the petition is pending, the order in force is the one the Third Circuit affirmed: the preliminary injunction against enforcement, whose mandate issued on April 28, 2026. The petition itself describes the posture that way, and nothing on the Supreme Court's docket as of September 28, 2026 changes it. That is the answer to the question a New Jersey reader is likeliest to ask, and it is an answer about what has been ordered rather than about what is lawful: the Division has been enjoined from enforcing the Sports Wagering Act against Kalshi's contracts since April 28, 2025, the injunction survived appeal, and the state's request that the Supreme Court undo it has not yet been answered.

What the docket does not show matters as much. There is no order granting or denying review, no call for the views of the Solicitor General, and no date for the justices to consider the petition. The docket's own note on the September 18 motion records only that it was submitted to the Clerk; the entry does not name the filer.

The next date on the docket is November 9, 2026, when the response to the petition is due. Nothing before that is scheduled in this case, and the New Jersey general election on November 3, 2026, with early voting from October 24 through November 1, will come and go with the question still open. The state of the record for every venue this site quotes is kept on the New Jersey legal status page.