U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-02340-EGS

STATE OF NEW YORK et al v. DONALD J. TRUMP et al Assigned to: Judge Emmet G. Sullivan Cases: 1:20-cv-02262-EGS
1:20-cv-02295-EGS 1:20-cv-02405-EGS Cause: 05:0706 Judicial Review of Agency Actions

Date Filed: 08/25/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff STATE OF NEW YORK

represented by Elena Goldstein ATTORNEY GENERAL'S OFFICE FOR THE STATE OF NEW YORK 28 Liberty Street 20th Floor New York, NY 10005 212-416-6201 Email: elena.goldstein@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay McKenzie OFFICE OF THE ATTORNEY GENERAL/NY 28 Liberty St., 20th Floor New York, NY 10005 212-416-8714 Email: lindsay.mckenzie@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morenike Fajana ATTORNEY GENERAL'S OFFICE/NY 28 Liberty Street New York, NY 10005 212-416-6134 Email: morenike.fajana@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff STATE OF HAWAII
Plaintiff STATE OF NEW JERSEY

Daniela Nogueira ATTORNEY GENERAL'S OFFICE/NY 28 Liberty Street New York, NY 10005 212-416-6544 Email: daniela.nogueira@ag.ny.gov ATTORNEY TO BE NOTICED
Matthew Colangelo NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL 28 Liberty Street 19th Floor New York, NY 10005 (212) 416-6057 Email: Matthew.Colangelo@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Lori N. Tanigawa OFFICE OF THE ATTORNEY GENERAL/HI Administration Division 425 Queen Street Honolulu, HI 96813 808-586-0618 Fax: 808-586-1372 Email: lori.n.tanigawa@hawaii.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Tim Sheehan OFFICE OF THE ATTORNEY GENERAL NEW JERSEY PO Box 093 25 Market Street Trenton, NJ 08625 609-815-2604 Email: tim.sheehan@law.njoag.gov

Plaintiff CITY OF NEW YORK
Plaintiff CITY AND COUNTY OF SAN FRANCISCO

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Estelle Bronstein OFFICE OF THE ATTORNEY GENERAL/NEW JERSEY Division of Law PO Box 112 25 Market Street Trenton, NJ 08625 609-376-9643 Email: estelle.bronstein@law.njoag.gov ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron M. Bloom NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 212-356-2274 Email: abloom@law.nyc.gov ATTORNEY TO BE NOTICED
Joseph Pepe NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 646-939-7444 Email: jpepe@law.nyc.gov ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis Jose Herrera CITY AND COUNTY OF SAN FRANCISCO

V.
Defendant
DONALD J. TRUMP in his official capacity as the President of the United States

City Attorney's Office 1 Carlton B. Goodlett Place Suite 234 San Francisco, CA 94102 415-554-4748 Email: brittany.feitelberg@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Yeh SAN FRANCISCO CITY ATTORNEY'S OFFICE 1390 Market Street Ste Fox Plaza, 7th Floor San Francisco, CA 94102 415-554-3856 Email: kevin.yeh@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph Evan Borson U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 514-1944 Fax: (202) 616-8460 Email: joseph.borson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kuntal Virendra Cholera U.S. DEPARTMENT OF JUSTICE 1100 L. St. NW Washington, DC 20005 (202) 305-8645 Email: kuntal.cholera@usdoj.gov

Defendant LOUIS DEJOY in his official capacity as the Postmaster General of the United States
Defendant UNITED STATES POSTAL SERVICE
Movant COUNTY OF SANTA CLARA
Movant CITY OF COLUMBUS Movant THIRTY LOCAL AND TRIBAL GOVERNMENTS Amicus RICHARD BLUMENTHAL

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph Evan Borson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kuntal Virendra Cholera (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph Evan Borson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kuntal Virendra Cholera (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Zoe E Friedland 1319 Hoover St. Menlo Park, CA 94025 561-312-4038 Email: zoe.friedland@cco.sccgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod CONSTITUTIONAL

Amicus CORY A. BOOKER
Amicus SHERROD BROWN
Amicus TOM CARPER
Amicus MAZIE K. HIRONO
Amicus AMY KLOBUCHAR
Amicus EDWARD J. MARKEY

ACCOUNTABILITY CENTER 1200 18th Street, NW Suite 501 Washington, DC 20036 (202) 296-6889 ext. 304 Email: brianne@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus JEFFREY A. MERKLEY
Amicus JACK REED
Amicus BERNARD SANDERS
Amicus JEANNE SHAHEEN
Amicus ELIZABETH WARREN
Amicus SHELDON WHITEHOUSE
Amicus RON WYDEN
Amicus BRADY

represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur Luk ARNOLD & PORTER KAYE

Amicus TEAM ENOUGH
Amicus UNITED STATES HOUSE OF REPRESENTATIVES

SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001 (202) 942-5393 Fax: (202) 942-5999 Email: arthur.luk@aporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur Luk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas N. Letter U.S. HOUSE OF REPRESENTATIVES Office of General Counsel 219 Cannon House Office Building Washington, DC 20515 (202) 225-9700 Email: douglas.letter@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/25/2020
08/25/2020 08/25/2020 08/25/2020

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number ADCDC-7504757) filed by STATE OF NEW JERSEY, STATE OF HAWAII, CITY OF NEW YORK, STATE OF NEW YORK, CITY AND COUNTY OF SAN FRANCISCO. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Colangelo, Matthew) (Entered: 08/25/2020)
2 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 20 Civ. 2295. (Colangelo, Matthew) (Entered: 08/25/2020)
3 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 20 Civ. 2262. (Colangelo, Matthew) (Entered: 08/25/2020)
Case Assigned to Judge Emmet G. Sullivan. (zsb) (Entered: 08/25/2020)

08/25/2020 08/25/2020 08/26/2020 08/26/2020 08/26/2020 08/27/2020
08/31/2020 09/01/2020
09/02/2020 09/02/2020 09/02/2020

4 SUMMONS (3) Issued Electronically as to DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 08/25/2020)
5 NOTICE of Appearance by Morenike Fajana on behalf of STATE OF NEW YORK (Fajana, Morenike) (Entered: 08/25/2020)
6 REQUEST FOR SUMMONS TO ISSUE to the U.S. Attorney General filed by STATE OF NEW YORK.(Fajana, Morenike) (Entered: 08/26/2020)
7 REQUEST FOR SUMMONS TO ISSUE to the U.S. Attorney's Office filed by STATE OF NEW YORK.(Fajana, Morenike) (Entered: 08/26/2020)
8 SUMMONS (2) Issued Electronically as to, U.S. Attorney and U.S. Attorney General (zjf) (Entered: 08/26/2020)
9 STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 08/27/20. (Attachment: # 1 Exhibit 1) (mac) (Entered: 08/27/2020)
10 NOTICE of Appearance by Tim Sheehan on behalf of STATE OF NEW JERSEY (Sheehan, Tim) (Entered: 08/31/2020)
MINUTE ORDER. The Court, sua sponte, directs the Plaintiffs to show cause why this action should not be consolidated as related with National Association for the Advancement of Colored People v. U.S. Postal Service, 20-2295; Richardson v. Trump, 20-2262; and Vote Forward v. DeJoy, 20-2405 by no later than September 4, 2020 at 12:00 PM. See Fed. R. Civ. P. 42(a) (permitting the court to consolidate actions "involv[ing] a common question of law or fact"); Local Civ. R. 40.5(a)(3) (defining related civil actions). Signed by Judge Emmet G. Sullivan on 9/1/2020. (lcegs3) (Entered: 09/01/2020)
Set/Reset Deadlines: Plaintiffs Show Cause due no later than 12:00PM on 9/4/2020. (mac) (Entered: 09/02/2020)
11 NOTICE of Appearance by Joseph Evan Borson on behalf of All Defendants (Borson, Joseph) (Entered: 09/02/2020)
12 MOTION for Preliminary Injunction by STATE OF NEW YORK

(Attachments: # 1 Memorandum in Support, # 2 Declaration of

Morenike Fajana, # 3 Exhibit Index, # 4 Exhibit 1, # 5 Exhibit 2,

# 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7,

# 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15,

# 19 Exhibit 16, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31

Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30, # 34 Exhibit 31,

09/02/2020 09/02/2020
09/02/2020
09/02/2020 09/02/2020 09/03/2020

# 35 Text of Proposed Order, # 36 Certificate of Service)(Fajana, Morenike) (Entered: 09/02/2020)
13 NOTICE of Appearance by Estelle Bronstein on behalf of STATE OF NEW JERSEY (Bronstein, Estelle) (Main Document 13 replaced on 9/2/2020) (zjf). (Entered: 09/02/2020)
MINUTE ORDER. The Court, sua sponte, directs the Defendants to show cause why this action should not be consolidated as related with National Association for the Advancement of Colored People v. U.S. Postal Service, 20-2295; Richardson v. Trump, 20-2262; and Vote Forward v. DeJoy, 20-2405 by no later than September 4, 2020 at 12:00 PM. See Fed. R. Civ. P. 42(a) (permitting the court to consolidate actions "involv[ing] a common question of law or fact"); Local Civ. R. 40.5(a)(3) (defining related civil actions). Signed by Judge Emmet G. Sullivan on 9/2/2020. (lcegs3) (Entered: 09/02/2020)
MINUTE ORDER. In view of 12 plaintiffs' motion for preliminary injunction, the parties shall file a joint status report by no later than September 8, 2020 at 12:00 PM NOON with recommendations for further proceedings, including, inter alia, (1) whether plaintiffs' motion for a preliminary injunction should be consolidated with the merits under Federal Rule of Civil Procedure 65; and (2) recommendations for further proceedings including, if necessary, a briefing schedule for plaintiffs' motion for a preliminary injunction. Signed by Judge Emmet G. Sullivan on 9/2/2020. (lcegs3) (Entered: 09/02/2020)
Set/Reset Deadlines: Defendants Show Cause due no later than 12:00PM on 9/4/2020. (mac) (Entered: 09/02/2020)
Set/Reset Deadlines: Joint Status Report due no later than 12:00PM on 9/8/2020. (mac) (Entered: 09/02/2020)
14 NOTICE of Appearance by Zoe E Friedland on behalf of COUNTY OF SANTA CLARA (Friedland, Zoe) (Entered: 09/03/2020)

09/04/2020
09/04/2020 09/04/2020 09/04/2020 09/05/2020 09/05/2020

15 RESPONSE TO ORDER TO SHOW CAUSE by STATE OF NEW JERSEY, STATE OF HAWAII, CITY OF NEW YORK, STATE OF NEW YORK, CITY AND COUNTY OF SAN FRANCISCO re Order,, Plaintiffs' response to the Court's September 1, 2020 Order to show cause why this action should not be consolidated with 20-cv-2262, 20-cv-2295, and 20-cv-2405 filed by STATE OF NEW JERSEY, STATE OF HAWAII, CITY OF NEW YORK, STATE OF NEW YORK, CITY AND COUNTY OF SAN FRANCISCO. (Colangelo, Matthew) (Entered: 09/04/2020)
16 NOTICE of Appearance by Kuntal Virendra Cholera on behalf of All Defendants (Cholera, Kuntal) (Main Document 16 replaced on 9/4/2020) (zjf). (Entered: 09/04/2020)
17 RESPONSE TO ORDER TO SHOW CAUSE by DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE re Order,, filed by DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Cholera, Kuntal) (Entered: 09/04/2020)
18 Unopposed MOTION for Leave to File Amicus Brief by COUNTY OF SANTA CLARA (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Exhibit List of Amici Curiae, # 3 Text of Proposed Order)(Friedland, Zoe) (Entered: 09/04/2020)
19 Joint MOTION for Protective Order by DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 09/05/2020)
MINUTE ORDER. It is hereby ORDERED that by September 10, 2020, Plaintiffs shall deliver to Chambers three printed courtesy copies of 12

Plaintiffs' motion for preliminary injunction. The parties may deliver their courtesy copies via overnight mail or by hand delivery to the Courthouse loading dock located at the corner of 3rd and C Streets, N.W. The courtesy copies must include the headers added by the Case Management/Electronic Case Files (CM/ECF) System and be submitted in binders, three-hole punched, with single-sided pages. All exhibits shall be tabbed and indexed for ease of reference. The parties shall deliver to Chambers three courtesy copies of any future filing, including exhibits, in

09/05/2020

connection with 12 motion for preliminary injunction. Signed by Judge Emmet G. Sullivan on 9/5/2020. (lcegs3) (Entered: 09/05/2020)
MINUTE ORDER. In view of 15 and 17 responses to order to show cause, as well as the responses from parties in Richardson v. Trump, 20-2262; National Association for the Advancement of Colored People v. U.S. Postal Service, 20-2295; and Vote Forward v. DeJoy, 20-2405, the

09/05/2020 09/05/2020 09/08/2020 09/08/2020
09/09/2020 09/09/2020

Court shall not consolidate the cases as related pursuant to Federal Rule of Civil Procedure 42(a) and Local Civil Rule 40.5(a)(3). It is ORDERED that the parties shall coordinate schedules for discovery purposes to the extent possible. Signed by Judge Emmet G. Sullivan on 9/5/2020. (lcegs3) (Entered: 09/05/2020)
MINUTE ORDER granting 18 unopposed motion for leave to file amicus brief by COUNTY OF SANTA CLARA. Signed by Judge Emmet G. Sullivan on 9/5/2020. (lcegs3) (Entered: 09/05/2020)
22 AMICUS BRIEF by COUNTY OF SANTA CLARA. (Attachments: # 1 Exhibit)(zjf) (Entered: 09/08/2020)
20 Joint STATUS REPORT by CITY AND COUNTY OF SAN FRANCISCO, CITY OF NEW YORK, STATE OF HAWAII, STATE OF NEW JERSEY, STATE OF NEW YORK. (Fajana, Morenike) (Entered: 09/08/2020)
21 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiffs by RICHARD BLUMENTHAL, CORY A. BOOKER, SHERROD BROWN, TOM CARPER, MAZIE K. HIRONO, AMY KLOBUCHAR, EDWARD J. MARKEY, Jeffrey A. Merkley, JACK REED, BERNARD SANDERS, JEANNE SHAHEEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN (Attachments: # 1 Exhibit Proposed Brief of Members of Congress as Amici Curiae in Support of Plaintiffs, # 2 Text of Proposed Order)(Gorod, Brianne) (Entered: 09/08/2020)
23 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiffs' Motion for Preliminary Injunction by BRADY, Team ENOUGH (Attachments: # 1 Proposed Brief of Amici Curiae Brady and Team ENOUGH in Support of Plaintiffs' Motion for Preliminary Injunction, # 2 Text of Proposed Order)(Luk, Arthur) (Entered: 09/09/2020)
MINUTE ORDER. In view of 20 joint status report, the parties shall

09/09/2020

adhere to the following briefing schedule on 12 Plaintiffs' motion for preliminary injunction: (1) Defendants shall file their opposition by September 11, 2020 at 12:00 PM; and (2) Plaintiffs shall file their reply by no later than September 16, 2020. It is FURTHER ORDERED that Plaintiffs shall file any request for expedited discovery proceedings in the form of a motion in accordance with paragraph 3(b) of 9 the Court's standing order governing civil cases. Signed by Judge Emmet G. Sullivan on 9/9/2020. (lcegs3) (Entered: 09/09/2020)
24 MINUTE ORDER granting 19 joint motion for protective order. Signed by Judge Emmet G. Sullivan on 9/9/2020. (lcegs3) (Entered: 09/09/2020)

09/09/2020 09/09/2020
09/10/2020 09/10/2020 09/10/2020 09/10/2020 09/10/2020 09/10/2020 09/11/2020
09/11/2020

MINUTE ORDER granting 21 motion for leave to file amici curiae brief by MEMBERS OF CONGRESS. Signed by Judge Emmet G. Sullivan on 9/9/2020. (lcegs3) (Entered: 09/09/2020)
36 AMICUS BRIEF by RICHARD BLUMENTHAL, CORY A. BOOKER, SHERROD BROWN, TOM CARPER, MAZIE K. HIRONO, AMY KLOBUCHAR, EDWARD J. MARKEY, JEFFREY A. MERKLEY, JACK REED, BERNARD SANDERS, JEANNE SHAHEEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN. (zjf) (Entered: 09/13/2020)
Set/Reset Deadlines: Defendants Opposition due no later than 12:00PM on 9/11/2020. Plaintiffs Reply due by 9/16/2020. (mac) (Entered: 09/10/2020)
25 NOTICE of Appearance by Daniela Nogueira on behalf of STATE OF NEW YORK (Nogueira, Daniela) (Entered: 09/10/2020)
26 CERTIFICATE OF SERVICE by STATE OF NEW YORK Complaint, Summonses, and Standing Order served on Defendants on August 31, 2020, by certified mail. (Nogueira, Daniela) (Entered: 09/10/2020)
27 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiffs' Motion for Preliminary Injunction (Corrected) by BRADY, Team ENOUGH (Attachments: # 1 Amici Curiae Brief in Support of Plaintiffs' Motion for Preliminary Injunction, # 2 Text of Proposed Order)(Luk, Arthur) (Entered: 09/10/2020)
28 NOTICE of Appearance by Douglas N. Letter on behalf of UNITED STATES HOUSE OF REPRESENTATIVES (Letter, Douglas) (Entered: 09/10/2020)
29 Unopposed MOTION for Leave to File Amicus Curiae Brief In Support of Plaintiff by UNITED STATES HOUSE OF REPRESENTATIVES (Attachments: # 1 Exhibit Proposed Brief of U.S. House of Representatives as Amicus Curiae in Support of Plaintiff, # 2 Text of Proposed Order)(Letter, Douglas) (Entered: 09/10/2020)
30 Memorandum in opposition to re 12 MOTION for Preliminary Injunction filed by DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachments: # 1 Declaration (Barber, Cintron, and Curtis), # 2 Declaration (Colin, Couch, DeChambeau, Glass, Prokity, and Vo), # 3 Exhibit 1-15, # 4 Text of Proposed Order)(Borson, Joseph) (Entered: 09/11/2020)
31 NOTICE of Appearance by Aaron M. Bloom on behalf of CITY OF NEW YORK (Bloom, Aaron) (Entered: 09/11/2020)

09/11/2020 09/11/2020 09/11/2020 09/11/2020 09/14/2020 09/14/2020
09/14/2020
09/15/2020 09/15/2020
09/16/2020

32 NOTICE of Appearance by Dennis Jose Herrera on behalf of CITY AND COUNTY OF SAN FRANCISCO (Herrera, Dennis) (Entered: 09/11/2020)
33 NOTICE of Appearance by Kevin Yeh on behalf of CITY AND COUNTY OF SAN FRANCISCO (Yeh, Kevin) (Entered: 09/11/2020)
34 NOTICE of Appearance by Lori N. Tanigawa on behalf of STATE OF HAWAII (Tanigawa, Lori) (Entered: 09/11/2020)
35 NOTICE of Appearance by Elena Goldstein on behalf of STATE OF NEW YORK (Goldstein, Elena) (Entered: 09/11/2020)
37 NOTICE of Appearance by Joseph Pepe on behalf of CITY OF NEW YORK (Pepe, Joseph) (Entered: 09/14/2020)
38 MOTION for Discovery , MOTION to Expedite Discovery by CITY AND COUNTY OF SAN FRANCISCO, CITY OF NEW YORK, STATE OF HAWAII, STATE OF NEW JERSEY, STATE OF NEW YORK (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit Index, # 4 Exhibit 1 (Notice of Rule 30(b)(6) deposition), # 5 Exhibit 2 (Notice of deposition of Robert Cintron), # 6 Exhibit 3 (Notice of deposition of Angela Curtis), # 7 Exhibit 4 (Notice of deposition of Robert Justin Glass), # 8 Exhibit 5 (Plaintiffs' first set of interrogatories to Defendants), # 9 Exhibit 6 (Plaintiffs' first request for production of documents to Defendants), # 10 Exhibit 7 (Plaintiffs' requests for admission to Defendants))(Colangelo, Matthew) (Entered: 09/14/2020)
MINUTE ORDER. In view of 38 motion to expedite discovery, Defendants shall file their opposition by no later than September 18, 2020. Plaintiffs shall file their reply by no later than September 23, 2020. Signed by Judge Emmet G. Sullivan on 9/14/2020. (lcegs3) (Entered: 09/14/2020)
Set/Reset Deadlines: Defendants Opposition due by 9/18/2020. Plaintiffs Reply due by 9/23/2020. (mac) (Entered: 09/15/2020)
39 Unopposed MOTION for Leave to File Supplemental Declarations by DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Declaration Cintron (Supp.), # 2 Declaration Curtis (Supp.), # 3 Text of Proposed Order)(Borson, Joseph) (Entered: 09/15/2020)
MINUTE ORDER granting 39 unopposed motion to file supplemental declarations. Signed by Judge Emmet G. Sullivan on 9/16/2020. (lcegs3) (Entered: 09/16/2020)

09/16/2020 09/16/2020

40 REPLY to opposition to motion re 12 MOTION for Preliminary Injunction filed by CITY AND COUNTY OF SAN FRANCISCO, CITY OF NEW YORK, STATE OF HAWAII, STATE OF NEW JERSEY, STATE OF NEW YORK. (Attachments: # 1 Supplemental Fajana Declaration, # 2 Exhibit Index, # 3 Exhibit 32, # 4 Exhibit 33, # 5 Exhibit 34, # 6 Exhibit 35, # 7 Exhibit 36, # 8 Exhibit 37, # 9 Exhibit 38)(Nogueira, Daniela) (Entered: 09/16/2020)

47 Supplemental Declarations re 30

Memorandum in opposition re 12

09/17/2020 09/17/2020
09/18/2020 09/18/2020 09/21/2020
09/22/2020

MOTION for Preliminary Injunction by DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (zjf) (Entered: 09/23/2020)
41 NOTICE of Appearance by Lindsay McKenzie on behalf of STATE OF NEW YORK (McKenzie, Lindsay) (Entered: 09/17/2020)
42 NOTICE OF SUPPLEMENTAL AUTHORITY by CITY AND COUNTY OF SAN FRANCISCO, CITY OF NEW YORK, STATE OF HAWAII, STATE OF NEW JERSEY, STATE OF NEW YORK (Attachments: # 1 Exhibit 1 (Order granting plaintiffs' motion for preliminary injunction in Washington v. Trump (E.D. Wash.)))(Colangelo, Matthew) (Entered: 09/17/2020)
43 RESPONSE re 38 MOTION for Discovery MOTION to Expedite Discovery filed by DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE. (Attachments: # 1 Exhibit A E.D. Wash. Order, # 2 Exhibit B - E.D. Wash. 1st Set of Interrogatories and RFP)(Borson, Joseph) (Entered: 09/18/2020)
44 Joint MOTION for Protective Order (FRE 502(d) Order) by DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 09/18/2020)
45 NOTICE OF SUPPLEMENTAL AUTHORITY by CITY AND COUNTY OF SAN FRANCISCO, CITY OF NEW YORK, STATE OF HAWAII, STATE OF NEW JERSEY, STATE OF NEW YORK (Attachments: # 1 Order granting plaintiffs' motion for preliminary injunction in Jones v. United States Postal Service (S.D.N.Y.))(Fajana, Morenike) (Entered: 09/21/2020)
MINUTE ORDER granting 29 motion for leave to file amicus curiae brief in support of Plaintiffs by UNITED STATES HOUSE OF REPRESENTATIVES. Signed by Judge Emmet G. Sullivan on 9/22/2020. (lcegs3) (Entered: 09/22/2020)

09/22/2020 09/22/2020 09/23/2020
09/27/2020

46 ORDER granting 44 joint motion for entry of a Federal Rule of Evidence 502(d) Order. Signed by Judge Emmet G. Sullivan on 9/22/2020. (lcegs3) (Entered: 09/22/2020)
48 AMICUS BRIEF by UNITED STATES HOUSE OF REPRESENTATIVES. (zjf) (Entered: 09/23/2020)
49 REPLY to opposition to motion re 38 MOTION for Discovery MOTION to Expedite Discovery filed by CITY AND COUNTY OF SAN FRANCISCO, CITY OF NEW YORK, STATE OF HAWAII, STATE OF NEW JERSEY, STATE OF NEW YORK. (Nogueira, Daniela) (Entered: 09/23/2020)
50 NOTICE of Supplemental Materials by DONALD J. TRUMP, LOUIS DEJOY, UNITED STATES POSTAL SERVICE (Attachments: # 1

Exhibit A - Clarifying Operational Instructions, # 2 Exhibit B -

09/27/2020
09/27/2020 09/27/2020 09/28/2020

Stand-Up Talk, # 3 Exhibit C - Additional Election Mail Resources)(Borson, Joseph) (Entered: 09/27/2020)
MINUTE ORDER finding as moot 23 motion for leave to file amici curiae brief by BRADY, Team ENOUGH and granting 27 motion for leave to file amici curiae brief (corrected) by BRADY, Team ENOUGH. Signed by Judge Emmet G. Sullivan on 9/27/2020. (lcegs1) (Entered: 09/27/2020)
51 ORDER granting 12 Motion for Preliminary Injunction. Signed by Judge Emmet G. Sullivan on 9/27/2020. (lcegs1) (Entered: 09/27/2020)
52 MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 9/27/2020. (lcegs1) (Entered: 09/27/2020)
53 AMICUS BRIEF In Support of Plaintiffs Motion for Preliminary Injunction by BRADY, TEAM ENOUGH. (Luk, Arthur) (Entered: 09/28/2020)

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 Case 1:20-cv-02340 Document 1 Filed 08/25/20 Page 1 of 64

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

STATE OF NEW YORK, 28 Liberty Street New York, NY 10005
STATE OF HAWAII, 425 Queen Street Honolulu, HI 96813
STATE OF NEW JERSEY, 25 Market Street Trenton, NJ 08625
CITY OF NEW YORK, 100 Church Street New York, NY 10007
CITY AND COUNTY OF SAN FRANCISCO,
1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States,
1600 Pennsylvania Avenue Washington, DC 20500
LOUIS DEJOY, in his official capacity as Postmaster General of the United States,
475 L’Enfant Plaza SW, Rm. 4012 Washington, DC 20260
UNITED STATES POSTAL SERVICE, 475 L’Enfant Plaza SW, Rm. 4012 Washington, DC 20260
Defendants.

Case No.: 20 Civ. 2340
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. The United States Postal Service has been thrown into chaos. Thanks to a series of sweeping policy changes beleaguered by partisan meddling, the independent agency has become a political football set to undermine a federal election. At a time when Americans are depending on the mail to secure food, housing, medicine, and more in the middle of a pandemic, these changes are triggering dramatic delays. Mail is piling up in facilities for days and weeks; delivery trucks are running routes without any mail to deliver; and postal workers are left scrambling to process mail with less equipment, less time, and less staff. These policy changes are also interfering with the administration of myriad state and local government functions, and, unless vacated or enjoined, will endanger state and local plans for the November election as well. 2. For fifty years, the U.S. Postal Service has been an independent agency overseen by a board of governors. But as the COVID-19 pandemic began shutting down cities, counties, and states, the Trump Administration made concerted efforts to interfere with the agency and with states’ plans to expand mail-in voting due to the public health crisis. President Trump repeatedly, emphatically, and openly attempted to undermine mail-in voting efforts and the U.S. Postal Service’s ability to ensure the timely delivery of ballots. At the same time, Trump Administration officials were directing changes in the agency’s processes. 3. Beginning in June 2020, the U.S. Postal Service issued a number of policy changes that overhauled the agency’s operations. The agency eliminated or substantially altered a number of operational policies and practices that were mission-critical to the timely delivery of mail. Specifically, the U.S. Postal Service removed hundreds of collection boxes and high-speed sorting machines; cut or curtailed overtime; prohibited needed late trips and extra trips; and began a pilot program in almost 400 localities that turned how the agency processes mail on its head. For the first time in recent memory, the U.S. Postal Service also backed away from its
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policy of ensuring election mail delivery at the First Class rate speed of one to three days regardless of the rate actually paid.
4. Immediately, the policy changes produced serious delays across the country despite the fact that letter mail volume had decreased during the pandemic. With the removal of high-speed sorting machines, readying mail for delivery on the remaining machines ran late. Since late trips were not allowed, however, trucks had to leave for delivery points without mail. Subsequent scheduled trips were overwhelmed, but employees could not get overtime to address the backed-up mail. Without extra trips to fix the issue, mail sat undelivered overnight. In some cases, the mail had to be re-sorted in the morning in order to combine the sitting mail with newly-arrived mail into the proper “delivery point sequence”—the delivery order used by mail carriers. On-time delivery for various regions and postal products continued to get worse over time, dropping by 15 to 20 percent in some areas.
5. As the delays carried on for weeks, the U.S. Postal Service took no steps to undo its broad policy changes. Instead, on or around July 31, 2020, the agency sent letters to 46 states warning that the timely delivery of mail-in ballots for the November 3, 2020 election “cannot be guaranteed.” For the majority of states, the U.S. Postal Service claimed that state election laws were “incongruous with the Postal Service’s delivery standards.” Due to this alleged “mismatch,” the agency recommended that states pay the more expensive First Class rate when mailing ballots to voters in order to ensure faster delivery times.
6. The sudden reversal of the U.S. Postal Service’s decades-old policy alarmed state and local election officials across the country. The States of New York, Hawaii, and New Jersey, the City of New York, and the City and County of San Francisco (collectively, “Plaintiffs”) all have plans to provide voters with safe alternatives to in-person voting in the
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middle of the country’s unprecedented public health crisis. Delays disrupt those plans, forcing voters to risk either disenfranchisement by voting by mail or their health by voting in person.
7. The agency’s delays disrupt Plaintiffs’ abilities to carry out a wide variety of other critical government functions as well. Plaintiffs rely on the U.S. Postal Service to send critical correspondence regarding child and family services, food benefits, rental subsidies, and tax collection. Without reliable delivery, Plaintiffs will incur significant financial and administrative costs.
8. On August 18, 2020, the Postmaster General responded to public outcry over delays by announcing that he would “suspend” the policy changes until after the November election. Within days, however, he had testified before the Senate and House of Representatives that he had no intention of returning removed collection boxes or sorting equipment, reversing the prohibition on late trips or extra trips, or offering more overtime. Nor did he explain how he could ensure the timely delivery of election mail given that the agency did not plan to undo these delay-inducing policies.
9. This lawsuit challenges the U.S. Postal Service’s abrupt policy changes as beyond the agency’s authority under both federal law and the Constitution. Under the comprehensive statutory scheme governing the agency, the U.S. Postal Service was required to seek an advisory opinion from the Postal Regulatory Commission prior to undertaking new nationwide policies, see 39 U.S.C. § 3661, and give the highest consideration to the timely, efficient processing and delivery of important letter mail to the entire population of the United States, see 39 U.S.C. §§ 101, 403. The agency’s actions not only fail on both counts, but, along with the Trump Administration’s conduct, also interfere with states’ constitutional duty to administer their own elections. See U.S. Const. art. I, § 4, cl. 1.
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JURISDICTION AND VENUE 10. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 2201(a), and 39 U.S.C. § 409. 11. There is a controversy under 28 U.S.C. § 2201(a), and this Court may grant declaratory relief, injunctive relief, and other appropriate relief under 28 U.S.C. §§ 1361 and 2201–2202, as well as the Court’s equitable powers. 12. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(2) and (e)(1). Defendants are United States agencies or officers sued in their official capacities whose principal places of business are in this District. A substantial part of the events or omissions giving rise to this Complaint occurred and are continuing to occur within the District of Columbia.
PARTIES 13. Plaintiff the State of New York, represented by and through its Attorney General, is a sovereign state of the United States of America. Attorney General Letitia James is New York State’s chief law enforcement officer and is authorized under N.Y. Executive Law § 63 to pursue this action. 14. Plaintiff the State of Hawaii, represented by and through its Attorney General, is a sovereign state of the United States of America. Attorney General Clare E. Connors is the chief legal officer of the State of Hawaii and has authority to appear, personally or by deputy, for the State of Hawaii in all courts and in all cases, criminal or civil, in which the State may be a party or be interested. Haw. Rev. Stat. § 28-1. The Department of the Attorney General has the authority to represent the State in all civil actions in which the State is a party. Id. § 26-7. This challenge is brought pursuant to the Attorney General’s constitutional, statutory, and common law authority. See Haw. Const. art. V, § 6; Haw. Rev. Stat. Chapter 28; Haw. Rev. Stat. § 26-7. 15. Plaintiff the State of New Jersey, represented by and through its Attorney
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General, is a sovereign state of the United States of America. Attorney General Gurbir S. Grewal is the State’s chief legal officer and is authorized to bring this action on behalf of the State of New Jersey. N.J. Stat. Ann. § 52:17A-4(e), (g).
16. Plaintiff the City of New York is a municipal corporation organized pursuant to the laws of the State of New York. New York City is a political subdivision of the State and derives its powers through the New York State Constitution, New York State laws, and the New York City Charter. New York City is the largest city in the United States by population.
17. Plaintiff the City and County of San Francisco, represented by and through City Attorney Dennis J. Herrera, is a municipal corporation organized and existing under the laws of the State of California, and is a charter city and county. The City Attorney is charged with representing San Francisco in any legal proceedings in which it has an interest. S.F. Charter § 6.102.
18. Plaintiffs are aggrieved by the actions of President Donald J. Trump, Postmaster General Louis DeJoy, and the U.S. Postal Service (collectively, “Defendants”) and have standing to bring this action because Defendants’ actions harm Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary interests and will continue to cause injury unless and until Defendants’ policies are vacated.
19. Defendant Donald J. Trump is the President of the United States. He is sued in his official capacity.
20. Defendant Louis DeJoy is the Postmaster General of the United States. He is sued in his official capacity.
21. Defendant the United States Postal Service is an independent agency within the executive branch of the United States government. 39 U.S.C. § 201.
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ALLEGATIONS I. The federal postal service has long been a critical part of American infrastructure.
22. The United States’s federal mail system predates even the Constitution.1 In 1775, the Second Continental Congress appointed Benjamin Franklin as the first Postmaster General, charged with maintaining “a line of posts” from New England to Georgia. At the time, the postal service played an integral role during the American Revolutionary period, carrying mail from Congress to the American army. 2
23. Upon ratification, the Constitution vested Congress with the power “to establish Post Offices and post Roads.” U.S. Const., art. I, § 7. In 1789, it exercised this power by establishing the first Post Office under the Constitution and making the Postmaster General subject to the President’s direction.3
24. Soon after, Congress passed the Act of February 20, 1792. The first major postal law, the Act professionalized the Post Office by establishing postal roads and giving the postal service a “postal monopoly” prohibiting private carriers from delivering letters.4
25. For more than two hundred years, the federal postal service has provided reliable, vital services to millions of Americans and served to “to bind the Nation together through the personal, educational, literary, and business correspondence of the people.” See 39 U.S.C. § 101(a).
26. Today, the U.S. Postal Service delivers 48 percent of the world’s mail—including more packages to homes than any other mail service.5 In fiscal year 2019, the agency delivered
1 U.S. Postal Serv., The United States Postal Service: An American History 1 (2020), https://about.usps.com/publications/pub100.pdf. 2 Id. at 2, 4. 3 Id. at 4. 4 Id. at 1, 4. 5 U.S. Postal Serv., FY2019 Annual Report to Congress 2,
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143 billion pieces of mail to 160 million delivery addresses.6
27. The U.S. Postal Service’s stated mission is to “provide the American public with trusted, affordable, universal service.”7 Critical to this mission is the agency’s universal service
obligation, a legal mandate designed to ensure that all areas of the country receive a minimum
level of service at a reasonable price, in light of the agency’s unique and integral role as the sole government-provided postal service.8
28. The U.S. Postal Service’s operations are essential in particular for the 46 million
rural addresses to which it delivers, where post offices may not be financially self-sustaining or where little to no viable alternatives exist for sending and receiving mail.9
29. Despite recent financial difficulties, natural disasters, and other challenges to its
operations, the U.S. Postal Service has maintained its commitment to ensuring that all areas of
the country are served and that no Americans are unable to access the mail.
30. One of most critical components of the U.S. Postal Service’s commitment is its
role in federal, state, and local elections across the country through the delivery of critical
election materials, such as ballots, voter registration cards, absentee applications, and polling place notifications.10
https://about.usps.com/what/financials/annual-reports/fy2019.pdf. 6 U.S. Postal Serv., Delivers the Facts 1, https://about.usps.com/news/delivers-facts/uspsdelivers-the-facts.pdf. 7 See U.S. Postal Serv., USO Executive Summary 1, https://about.usps.com/universal-postalservice/usps-uso-executive-summary.pdf. 8 Office of Inspector General, Guiding Principles for a New Universal Service Obligation 1, U.S. Postal Serv. (Nov. 14, 2014), https://www.uspsoig.gov/sites/default/files/document-libraryfiles/2015/rarc-wp-15-001_0.pdf. 9 See U.S. Postal Serv., Delivers the Facts 1, https://about.usps.com/news/delivers-facts/uspsdelivers-the-facts.pdf; U.S. Postal Serv., FY2019 Annual Report to Congress 2, https://about.usps.com/what/financials/annual-reports/fy2019.pdf. 10 See U.S. Postal Serv., Election Mail, https://about.usps.com/gov-services/election-mail (last visited Aug. 18, 2020).
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31. As the country reaches historic levels of mail-in voting due to the COVID-19 pandemic, Boards of Elections across the country, including in Plaintiffs’ jurisdictions, are relying heavily on the U.S. Postal Service and its services to administer free and fair elections and preserve voters’ access to the franchise. II. Congress created a detailed statutory scheme to govern the U.S. Postal Service.
32. Congress passed the Postal Reorganization Act (“PRA”) in 1970 to safeguard the postal service’s critical role in American life. See 39 U.S.C. § 101 et seq. A primary purpose of the Act was to “convert the Post Office Department into an independent establishment in the Executive Branch of the Government freed from direct political pressures.”11 Accordingly, the PRA renamed the agency the U.S. Postal Service, restructured its operations, removed it from the Cabinet to ensure its political independence, and required—for the first time—that the Postmaster General be appointed by a newly-established Board of Governors rather than the President. The PRA also created the Postal Rate Commission, an independent body to oversee postage rate decisions and certain other agency actions.
33. The PRA affirms that the U.S. Postal Service is “a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by Act of Congress, and supported by the people.” 39 U.S.C. § 101(a). Its “basic function” is to meet “the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people.” Id.
34. Consistent with the agency’s core function, the PRA directs that the U.S. Postal Service “shall provide prompt, reliable, and efficient services to patrons in all areas and shall
11 H.R. Rep. No. 91-1104, at 1 (1970) (Conf. Rep.), as reprinted in 1970 U.S.C.C.A.N. 3649, 3650.
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render postal services to all communities.” Id. “The costs of establishing and maintaining the Postal Service shall not be apportioned to impair the overall value of such service to the people.” Id.
35. Under the PRA, Congress also directs that the U.S. Postal Service must follow specific statutory commands for agency action at each stage of designing, planning, and providing prompt postal services. For example, “in determining all policies for postal services, the Postal Service shall give the highest consideration to the requirement for the most expeditious collection, transportation, and delivery of important letter mail.” 39 U.S.C. § 101(e).
36. The PRA further provides that “[i]n selecting modes of transportation, the Postal Service shall give highest consideration to the prompt and economical delivery of all mail. Modern methods of transporting mail by containerization and programs designed to achieve overnight transportation to the destination of important letter mail to all parts of the Nation shall be a primary goal of postal operations.” 39 U.S.C. § 101(f).
37. As reflected in these commands, the U.S. Postal Service is duty-bound to “serve as nearly as practicable the entire population of the United States.” 39 U.S.C. § 403(a). In particular, the agency must “maintain an efficient system of collection, sorting, and delivery of the mail nationwide”; (2) “provide types of mail service to meet the needs of different categories of mail and mail users”; and (3) “establish and maintain postal facilities of such character and in such locations, that postal patrons throughout the Nation will . . . have ready access to essential postal services.” 39 U.S.C. § 403(b).
38. For greater oversight of the detailed statutory scheme governing the U.S. Postal Service, Congress passed the Postal Accountability and Enhancement Act (“PAEA”) in 2006. Pub. L. No. 109-435, 120 Stat. 3198 (Dec. 20, 2006) (codified at 39 U.S.C. § 3600 et seq.). The
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PAEA expanded the former Postal Rate Commission into the Postal Regulatory Commission, increasing the Commission’s authority with regard to the agency’s execution of its duties and obligations. By law, the Commission maintains political independence with bipartisan members who are appointed by the President, confirmed by the Senate, and may only be removed for cause. See 39 U.S.C. § 502(a).
39. The U.S. Postal Service must go through the Commission before making major changes to its policies or operations. Specifically, “[w]hen the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis, it shall submit a proposal, within a reasonable time prior to the effective date of such proposal, to the Postal Regulatory Commission requesting an advisory opinion on the change.” 39 U.S.C. § 3661(b).
40. Following the submission of a proposal, “[t]he Commission shall not issue its opinion on any proposal until an opportunity for hearing on the record under [the Administrative Procedure Act] has been accorded to the Postal Service, users of the mail, and an officer of the Commission who shall be required to represent the interests of the general public. The opinion shall be in writing and shall include a certification by each Commissioner agreeing with the opinion that in his judgment the opinion conforms to the policies established under this title.” 39 U.S.C. § 3661(c). III. The Trump Administration has interfered with the U.S. Postal Service and states’
mail-in voting plans. 41. Despite Congress’s efforts to insulate the U.S. Postal Service from political interloping, the Trump Administration has improperly interfered with this independent agency. The Trump Administration and the agency have also pressured states to change their plans to conduct the November 3, 2020 election through expanded mail-in voting, with the intent of
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impairing the delivery of mailed ballots otherwise authorized by state law.
42. Following his appointment by President Trump, David Williams served as a vice
chairman of the U.S. Postal Service’s Board of Governors from 2018 to 2020 after 13 years as
the agency’s Inspector General.12 In April 2020, Williams resigned from the Board of
Governors to protest the politicization of the agency.13 On August 20, 2020, Williams testified
before Congress that the Secretary of the Treasury Steven Mnuchin had been directly interfering
with the agency’s operations in the months prior to Williams’s resignation.
43. Williams testified that “Mnuchin indicated he wanted to have some say over how
the postal service ran.”14 Specifically, “[t]he Secretary has called over board members to
provide instructions and requests and express his displeasure, which is really striking. I’m not
sure I’ve run into that before, where one department is trying to run another department.”15 As
Williams explained, “[n]ormally you would simply reject the effort and report it to Congress.”16
Instead, Secretary Mnuchin ordered operational changes at the agency in line with those he had
recommended to the President in a 2018 report.17
44. Upon information and belief, Secretary Mnuchin also continuously sought to
12 Catie Edmondson, Who Is David C. Williams? A Postal Service Overseer Who Resigned, The N.Y. Times (Aug. 20, 2020), https://www.nytimes.com/2020/08/20/us/politics/david-williamspostal-service.html. 13 Id.; see also Nicholas Fandos et al., Former Postal Governor Tells Congress Mnuchin Politicized Postal Service, The N.Y. Times (Aug. 20, 2020), https://www.nytimes.com/2020/08/20/us/politics/former-postal-governor-tells-congressmnuchin-politicized-postal-service.html. 14 See Progressive Caucus ad hoc hearing on Trump Admin’s sabotage of USPS operations, Cong. Progressive Caucus (Aug. 20, 2020), https://www.pscp.tv/w/1BdxYnvDppzKX (video). 15 Id. 16 Id. 17 See Task Force on the United States Postal System, United States Postal Service: A Sustainable Path Forward (Dec. 4, 2018), https://home.treasury.gov/system/files/136/USPS_A_Sustainable_Path_Forward_report_12-042018.pdf.
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exercise influence over the U.S. Postal Service through the selection of new Governors that were aligned with his vision, and who would select a new Postmaster General that would implement the requested operational changes.18 Among other actions, Secretary Mnuchin discussed the issue privately with U.S. Postal Service Governor Robert M. Duncan on several occasions. He also recommended to President Trump that he appoint John M. Barger to the Board of Governors, who, after being confirmed by the Senate, was tasked with leading the committee to select a new Postmaster General.19
45. According to Williams, Secretary Mnuchin’s efforts to intercede continued even after the U.S. Postal Service informed him that his demands on the agency were illegal.20
46. Upon information and belief, following the appointment of Postmaster General DeJoy, Secretary Mnuchin has further used the Treasury’s position as a lender to the agency as leverage to obtain further control over its operations. Secretary Mnuchin sought to condition a loan to the U.S. Postal Service “in exchange for sweeping operational control of the Postal Service, including provisions that would allow the Trump administration to approve senior postal personnel decisions, service contracts with third-party shippers, collective bargaining negotiation strategies and high package prices.”21
47. After Congress passed CARES Act relief in March, which authorized the Treasury Department to lend $10 billion to the U.S. Postal Service “upon terms and conditions
18 Kenneth P. Vogel et al. Mnuchin Paved Way for Postal Service Shake-Up, The N.Y. Times (Aug. 22, 2020), https://www.nytimes.com/2020/08/22/business/economy/dejoy-postmastergeneral-trump-mnuchin.html. 19 Id. 20 See Progressive Caucus ad hoc hearing on Trump Admin’s sabotage of USPS operations, Cong. Progressive Caucus (Aug. 20, 2020), https://www.pscp.tv/w/1BdxYnvDppzKX (video). 21 Jacob Bogage, Treasury agrees to lend Postal Service $10 billion in trade for rivals’ shipping contracts, Wash. Po. (July 29, 2020), https://www.washingtonpost.com/business/2020/07/29/postal-service-treasury-loan.
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mutually agreed upon by [the Treasury Department] and the Postal Service,”22 the Department
and the U.S. Postal Service entered into an agreement on July 28, 2020. Under the agreement,
the agency would receive $10 billion in exchange for information regarding the U.S. Postal
Service’s most valuable business contracts with third-party shippers, as well as various financial reporting requirements.23 Postmaster General DeJoy testified that he has discussed the loan
directly with Secretary Mnuchin, but that they did not discuss operational plans in “grave detail.”24 Rather, he informed the Secretary that he is “working on a plan.”25
48. The Treasury Department has repeatedly resisted efforts by Congress and good
government groups to obtain information regarding Secretary Mnuchin’s role in the U.S. Postal Service’s operations and the selection of its leadership.26
49. While Secretary Mnuchin was directly interfering with the independence of the
U.S. Postal Service, President Trump began a public campaign against the agency and mail-in
voting. As more states began to adopt expanded mail-in voting procedures due to the spread of
the COVID-19 virus and associated state and local lockdowns, the President attacked the
procedures as encouraging fraud.
50. At this point, President Trump has expressed his opposition to increased mail-in
22 See Letter from Steven T. Mnuchin, Sec’y of Treasury, to the Hon. Louis DeJoy, Postmaster General (July 28, 2020), https://federalnewsnetwork.com/wp-content/uploads/2020/07/2020-0729-UST-Production-summary-of-terms.pdf. 23 Id. 24 Kenneth P. Vogel et al. Mnuchin Paved Way for Postal Service Shake-Up, The N.Y. Times (Aug. 22, 2020), https://www.nytimes.com/2020/08/22/business/economy/dejoy-postmastergeneral-trump-mnuchin.html. 25 Id. 26 See Letter from Sen. Charles Schumer to The Hon. Robert M. Duncan, Chairman of U.S. Postal Serv. Board of Governors (Aug. 19, 2020), https://www.democrats.senate.gov/imo/media/doc/CES%20to%20USPS%20Board%208.20.pdf; Citizens for Responsibility and Ethics in Washington v. U.S. Dept. of Treasury, No. 20 Civ. 2256 (D.D.C. filed Aug. 17, 2020).
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voting no less than 70 times.27 Throughout, the President has repeatedly stated that universal
mail-in voting would harm Republicans’ ability to win elections. On March 30, 2020, President
Trump disparaged a COVID-19 relief bill from House Democrats, arguing that “[t]he things they
had in there were crazy. They had things—levels of voting that, if you ever agreed to it, you’d
never have a Republican elected in this country again.”28
51. President Trump has reiterated that sentiment again and again. On April 8, 2020,
he tweeted to his more than 85 million Twitter followers that “Republicans should fight very
hard when it comes to state wide mail-in voting,” noting that, “for whatever reason, [mail-in
voting] doesn’t work out well for Republicans.”29 On May 28, 2020, President Trump tweeted
that mail-in voting would “LEAD TO THE END OF OUR GREAT REPUBLICAN PARTY.”30
On July 2, 2020, he again tweeted his disdain for mail-in voting, urging that “Republicans, in
particular, cannot let this happen!”31 On August 3, 2020, the President lambasted Nevada for
supposedly hurting Republicans’ chances by adopting universal mail-in voting: “In an illegal late
night coup, Nevada’s clubhouse Governor made it impossible for Republicans to win the
state.”32
27 Amy Gardner and Josh Dawsey, As Trump leans into attacks on mail voting, GOP officials confront signs of Republican turnout crisis, Wash. Po. (Aug. 3, 2020), https://www.washingtonpost.com/politics/republicans-race-to-promote-mail-voting-as-trumpsattacks-discourage-his-own-supporters-from-embracing-the-practice/2020/08/03/9dd1d988d1d9-11ea-9038-af089b63ac21_story.html. 28 Aaron Blake, Trump just comes out and says it: The GOP is hurt when it’s easier to vote, Wash. Po. (Mar. 30, 2020), https://www.washingtonpost.com/politics/2020/03/30/trump-votingrepublicans. 29 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 8, 2020, 8:20 a.m.), https://twitter.com/realDonaldTrump/status/1247861952736526336. 30 Donald J. Trump (@realDonaldTrump), Twitter (May 28, 2020, 9:00 p.m.), https://twitter.com/realDonaldTrump/status/1266172570983940101. 31 Donald J. Trump (@realDonaldTrump), Twitter (July 2, 2020, 7:41 p.m.), https://twitter.com/realDonaldTrump/status/1278836342609379328. 32 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 3, 2020, 7:37 a.m.),
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52. Indeed, the President has routinely attacked specific states for increasing access to mail-in voting—including Plaintiffs New York33 and New Jersey.34 Despite fervently opposing mail-in voting in these states, President Trump has, conversely, supported mail-in voting in other states. On August 4, 2020, the President tweeted: “Whether you call it Vote by Mail or Absentee Voting, in Florida the election system is Safe and Secure, Tried and True. Florida’s Voting system has been cleaned up (we defeated Democrats attempts at change), so in Florida I encourage all to request a Ballot & Vote by Mail! #MAGA.”35
53. On August 5, 2020, the President again differentiated between states: “Nevada has ZERO infrastructure for Mail-In Voting. It will be a corrupt disaster if not ended by the Courts. It will take months, or years, to figure out. Florida has built a great infrastructure, over years, with two great Republican Governors. Florida, send in your Ballots!”36
54. Beyond opposing mail-in voting, the President has also disparaged how states plan to collect mail-in ballots. On August 17, 2020, he tweeted: “Some states use ‘drop boxes’ for the collection of Universal Mail-In Ballots. So who is going to ‘collect’ the Ballots, and what might be done to them prior to tabulation? A Rigged Election? So bad for our Country. Only
https://twitter.com/realDonaldTrump/status/1290250416278532096. 33 Donald J. Trump (@realDonaldTrump), Twitter (July 29, 2020, 6:28 p.m.), https://twitter.com/realDonaldTrump/status/1288602262567153664. 34 Donald J. Trump (@realDonaldTrump), Twitter (July 2, 2020, 7:41 p.m.), https://twitter.com/realDonaldTrump/status/1278836342609379328; Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2020, 4:51 p.m.), https://twitter.com/realDonaldTrump/status/1287490820669616128; Donald J. Trump (@realDonaldTrump), Twitter (Aug. 22, 2020, 8:44 a.m.), https://twitter.com/realDonaldTrump/status/1297152619526393856. 35 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 4, 2020, 12:55 p.m.), https://twitter.com/realDonaldTrump/status/1290692768675901440. 36 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 5, 2020, 7:08 p.m.), https://twitter.com/realDonaldTrump/status/1290967953542909952.
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Absentee Ballots acceptable!”37
55. Consistent with President Trump’s position, his campaign has sued Nevada,38
New Jersey,39 Pennsylvania,40 and “two Democratic-leaning Iowa counties”41 over their mail-in
ballot policies. In New Jersey and Nevada, the campaign has opposed plans to mail ballots to
voters. In Pennsylvania, the campaign has taken action against the state’s use of drop-off boxes
for ballots.
56. At the same time, President Trump has opposed emergency funds and
supplemental election-related funds for the U.S. Postal Service because of his opposition to
expanded mail-in voting.42 On August 13, 2020, President Trump stated in a Fox Business
interview that “[i]f we don’t make a deal [on U.S. Postal Service funding], that means they don’t
get the money. That means they can’t have universal mail-in voting. They just can’t have it.”43
57. As recently as yesterday, on August 24, 2020, President Trump tweeted that
37 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 17, 2020, 11:40 a.m.), https://twitter.com/realDonaldTrump/status/1295385113862090753. 38 Joseph Ax, Trump campaign sues Nevada over mail-in ballots, asserting ‘inevitable’ fraud, Reuters (Aug. 5, 2020), https://www.reuters.com/article/us-usa-election-nevada/trumpcampaign-sues-nevada-over-mail-in-ballots-asserting-inevitable-fraud-idUSKCN2512CZ. 39 Kanishka Singh, Trump campaign sues New Jersey after its decision to mail ballots in November election, Reuters (Aug. 19, 2020), https://www.reuters.com/article/us-usa-electionnew-jersey-lawsuit/trump-campaign-sues-new-jersey-after-its-decision-to-mail-ballots-innovember-election-idUSKCN25F0B4. 40 Jonathan Lai, The Trump campaign is suing Pennsylvania over how to run the 2020 election, The Phil. Inquirer (June 29, 2020), https://www.inquirer.com/politics/election/trump-campaignlawsuit-pennsylvania-mail-ballots-20200629.html. 41 Ryan J. Foley, Trump campaign sues key Iowa counties over absentee mailings (Aug. 13, 2020), https://apnews.com/22e6d33f1a2eeadde8e193a9330cde16. 42 Remarks by President Trump in Press Briefing, The White House (Aug. 13, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-press-briefing081320. 43 Megan Henney, Trump rips Dems for holding up coronavirus stimulus deal with demand for post office aid, FOX Bus. (Aug. 13, 2020), https://www.foxbusiness.com/politics/trump-ripsdems-for-holding-up-coronavirus-stimulus-deal-with-demand-for-post-office-aid.
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“[r]epresentatives of the Post Office have repeatedly stated that they DO NOT NEED MONEY,” claiming that recent pushes for funding are “all another HOAX by the Democrats to give 25 Billion unneeded dollars for political purposes, without talking about the Universal Mail-In Ballot Scam.” 44 The President encouraged his readers to “fight the []51 million unasked for Ballots.”45 IV. Without regard to Congress’s commands, the U.S. Postal Service abruptly instituted
changes with nationwide impact.
58. While President Trump and his administration have been orchestrating a campaign against mail-in voting and funding for the U.S. Postal Service, the agency has instituted a series of new measures to overhaul operations in ways that align with the President’s campaign against mail-in voting.
59. On May 6, 2020, the U.S. Postal Service’s Board of Governors announced that Louis DeJoy would become the 75th Postmaster General of the United States and the agency’s Chief Executive Officer.46 Within days of starting his tenure, DeJoy and agency leadership began an “operational pivot” to overhaul how the U.S. Postal Service collects, processes, and delivers mail throughout the country.
60. In June and July 2020, the agency adopted its new policies (the “Postal Policy Changes”) without seeking an advisory opinion from the Postal Regulatory Commission or adequately accounting for its obligation to maintain timely, efficient postal service and facilities
44 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 22, 2020, 4:51 p.m.), https://twitter.com/realDonaldTrump/status/1297275235432005632. 45 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 22, 2020, 4:51 p.m.), https://twitter.com/realDonaldTrump/status/1297275241203458048. 46 Board of Governors Announces Selection of Louis DeJoy to Serve as Nation’s 75th Postmaster General, U.S. Postal Serv. (May 6, 2020), https://about.usps.com/newsroom/nationalreleases/2020/0506-bog-announces-selection-of-louis-dejoy-to-serve-as-nations-75thpostmaster-general.htm.
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for the entire population of the United States. Rather, the Postal Policy Changes were issued by fiat without any consideration or direction as to how to offset negative impacts on workflows and delivery outcomes. These Postal Policy Changes have:
61. Reduced access to postal services. The U.S. Postal Service has reduced the number of collection mailboxes available to the public. The agency has removed hundreds of mailboxes in Montana, New Jersey, New York, Oregon, and Pennsylvania, among other states. For example, U.S. Postal Service mailboxes were removed in multiple locations in New York City on or about August 15, 2020, including in West Harlem and the Bronx. While the U.S. Postal Service has stated that the mailboxes removed in New Jersey will be replaced, it has not explained why the mailboxes were removed at this time, or indicated when they will be replaced.
62. According to former Postal Governor Williams, Secretary Mnuchin ordered the removal of the collection boxes. “The blue boxes were maybe the most interesting of all. Those were not part of ongoing plans,” Williams testified.47 “To my knowledge, as a matter of fact, Secretary Mnuchin wanted that done. His study of the Postal Service asked that it be done.”48
63. Reduced processing capacity. The U.S. Postal Service has removed, dismantled, destroyed, or sold hundreds of major mail-sorting machines responsible for processing millions of letter mail and flat mail each day. By the date of today’s filing, the U.S. Postal Service was scheduled to have reduced its processing capacity by over 600 machines.49 By the end of September, the U.S. Postal Service planned to have reduced the number of total sorting machines
47 See Progressive Caucus ad hoc hearing on Trump Admin’s sabotage of USPS operations, Cong. Progressive Caucus (Aug. 20, 2020), https://www.pscp.tv/w/1BdxYnvDppzKX (video). 48 Id. 49 Letter from Rickey R. Dean, Manager, Contract Administrator, U.S. Postal Serv., to Mark Dimondstein, President, Am. Postal Workers Union (June 17, 2020), https://www.21cpw.com/wp-content/uploads/2020/06/mail-processing-equipment-reduction_617-2020.pdf.
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across the country by 10 percent—or roughly 670 machines. Together, these machines process 21.4 million pieces of paper mail per hour.50
64. These major mail-sorting machines include Automated Facer-Canceler Systems, Delivery Bar Code Sorters, Automated Flat Sorting Machines, and Flat Sequencing Systems. All told, several cities, including Plaintiff New York City, are seeing sorting capacity reductions of over 300,000 pieces of mail per hour.51 This decreased sorting capacity requires postal facilities to redistribute mail to its remaining machines for sorting or sort the mail manually. In some cases, mail left sitting overnight also must be re-sorted in the morning in order to combine the sitting mail with newly-arrived mail into the proper “delivery point sequence”—the delivery order used by mail carriers. In turn, re-sorting old mail lengthens processing times.
65. Postal technicians estimate that it would take “30 employees over their entire shift” to replicate the work of a single mail-sorting machine.52 In this way, increased manual sorting of letter mail and flat mail diverts resources from the processing of package mail—a serious problem given increased package volume during the pandemic.
66. Given the critical role of sorting machines to the effective processing of all mail, managers at postal facilities typically have the opportunity to negotiate if, when, and how a sorting machine is removed or decommissioned. Often, facility managers simply turn off sorting machines on a trial basis to test whether the machine will still be necessary for operations
50 Jacob Bogage and Christopher Ingraham, Here’s why the Postal Service wanted to remove hundreds of mail-sorting machines, Wash. Po. (Aug. 20, 2020), https://www.washingtonpost.com/business/2020/08/20/postal-service-mail-sorters-removals. 51 Erin Cox, Elise Viebeck, Jacob Bogage & Christopher Ingraham, Postal Service warns 46 states their voters could be disenfranchised by delayed mail-in ballots, Wash. Post (Aug. 14, 2020), https://wapo.st/2FsD0Il. 52 Curt Devine, Bob Ortega & Paul P. Murphy, Postal Service Removes Some Mail-sorting Machines, Sparking Concerns Ahead of Election, CNN (Aug. 13, 2020, 9:17 PM), https://www.cnn.com/2020/08/13/politics/postal-service-sorting-machines/index.html.
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following shifts in mail volume. 67. Typically, the agency has several reasons for not removing or destroying
machines due to temporary volume fluctuations. First, “you don’t save money by breaking down machines and putting them away and storing them, you spend money.”53 Second, the agency relies on high-speed sorting machines to be flexible and redirect mail following major events— as in the case of elections, the COVID-19 pandemic, Hurricane Katrina, or September 11th.54 Upon information and belief, however, postal facility managers were not given any opportunity to contest or negotiate the reduction of the roughly 670 machines ordered removed across the country. Nor was there any trial period during which managers could evaluate the impact on service before decommissioning machines permanently.
68. Cut or curtailed overtime. Despite strains on labor due to substantially reduced sorting capacity throughout the country, the U.S. Postal Service has also failed to provide the overtime needed to provide sufficient time for postal workers and carriers to meet basic processing and delivery requirements.
69. For years, overtime has been built into the agency’s operational model. Since the PAEA requires the U.S. Postal Service to pre-fund retiree health benefits,55 the agency has generally chosen to increase overtime rather than hire new employees in order to cut costs. As a result, nearly 20 percent of all work by mail handlers, city carriers, and postal drivers is typically done through overtime.56 In recent months, the need for overtime has only increased as 40,000
53 See Progressive Caucus ad hoc hearing on Trump Admin’s sabotage of USPS operations, Cong. Progressive Caucus (Aug. 20, 2020), https://www.pscp.tv/w/1BdxYnvDppzKX (video). 54 Id. 55 U.S. Postal Serv., Retiree Health Benefits Prefunding (2010), https://about.usps.com/who-weare/financials/annual-reports/fy2010/ar2010_4_002.htm. 56 Nicole Goodkind, Trump-backed postmaster general plans to slow mail delivery, Fortune (July 24, 2020), https://fortune.com/2020/07/24/usps-mail-delivery-postmaster-general-louis-dejoy-us-
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U.S. Postal Service employees have needed to quarantine due to COVID-19 exposure and as 83 employees have lost their lives to the virus.57
70. At the same time, the U.S. Postal Service has no plans in place to account for the
compounding labor shortages triggered by its new policies—including both the loss of
operationally necessary overtime and the reduction of processing capacity due to machine removals. The agency does not plan to hire more employees.58
71. Prohibited extra trips. Like overtime, the U.S. Postal Service relies on “extra”
trips to ensure the timely delivery of mail. These non-scheduled trips ensure that the U.S. Postal
Service can timely deliver mail that comes into a facility after letter carriers have left for their
shifts. Extra trips also allow the agency to account for daily fluctuations in mail volume,
processing malfunctions or errors, and other disruptions.
72. Even as mail volume has decreased over the past several decades, the U.S. Postal
Service has continued to rely on extra trips. For example, the agency reported 176,940 extra trips from processing facilities to delivery units in the latter half of 2019.59
73. With reduced capacity and less time to work, postal workers need to be flexible in order to deliver the mail in a timely manner. As part of its “operational pivot,”60 however, the
postal-service. 57 Id.; see also Postmaster General Louis DeJoy Testifies on Postal Service Operations & MailIn Voting, C-SPAN (Aug. 24, 2020), https://www.c-span.org/video/?474917-1/postmastergeneral-louis-dejoy-testifies-postal-service-operations-mail-voting (video). 58 Nicole Goodkind, Trump-backed postmaster general plans to slow mail delivery, Fortune (July 24, 2020), https://fortune.com/2020/07/24/usps-mail-delivery-postmaster-general-louis-dejoy-uspostal-service. 59 Office of the Inspector General, Late and Extra Trips at the Philadelphia, PA, Processing and Distribution Center, U.S. Postal Serv. (May 13, 2020), https://www.uspsoig.gov/sites/default/files/document-library-files/2020/20-164-R20.pdf. 60 Mandatory Stand Up Talk for All Employees: Pivoting for Our Future, U.S. Postal Serv. (July 10, 2020), https://www.washingtonpost.com/context/internal-usps-document-tells-employees-toleave-mail-at-distribution-centers/175dd1ae-e202-4777-877c-
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U.S. Postal Service has prohibited postal workers from making the extra trips necessary to ensure
that no mail is left sitting in postal facilities at the end of the day.
74. The agency acknowledged that it “may be difficult for employees” because they
“may see mail left behind or mail on the workroom floor . . . which is not typical,” but
nevertheless instituted its ban on extra trips.61 By August 13, 2020, the U.S. Postal Service had
“reduced extra trips by 71 percent.”62 Postmaster General DeJoy testified that this reduction
amounts to 5,000 fewer extra trips per day.63
75. Prohibited late trips. At the same time, the U.S. Postal Service has prohibited
network, plant, and delivery workers from making late trips—i.e., from embarking on their trip
any later than the scheduled time.64 As with overtime and extra trips, however, late trips are
necessary to the agency’s operations. In fact, the U.S. Postal Service reported 591,140 late trips
from processing facilities to delivery units during six months in 2019.65 Postmaster General
DeJoy testified that the agency has now reduced late trips from 3,500 per day to 600 per day.66
33442338d1cc/?itid=lk_interstitial_manual_14&itid=lk_inline_manual_35 (uploaded document); see also Jory Heckman, USPS Warns Staff of Temporary Mail Delays as it Cuts ‘Soaring’ Delivery Costs, Federal News Network (July 15, 2020), https://federalnewsnetwork.com/management/2020/07/usps-warns-staff-of-temporary-maildelays-as-it-cuts-soaring-delivery-costs. 61 Id. 62 Path Forward: PMG Addresses Restructuring, U.S. Postal Serv. LINK (Aug. 13, 2020), https://link.usps.com/2020/08/13/path-forward-2. 63 See Senate Hearing on U.S. Postal Service, C-SPAN (Aug. 21, 2020), https://www.cspan.org/video/?474940-1/senate-hearing-us-postal-service (video). 64 Mandatory Stand Up Talk for All Employees: Pivoting for Our Future, U.S. Postal Serv. (July 10, 2020), https://www.washingtonpost.com/context/internal-usps-document-tells-employees-toleave-mail-at-distribution-centers/175dd1ae-e202-4777-877c33442338d1cc/?itid=lk_interstitial_manual_14&itid=lk_inline_manual_35 (uploaded document). 65 Office of the Inspector General, Late and Extra Trips at the Philadelphia, PA, Processing and Distribution Center, U.S. Postal Serv. (May 13, 2020), https://www.uspsoig.gov/sites/default/files/document-library-files/2020/20-164-R20.pdf. 66 See Senate Hearing on U.S. Postal Service, C-SPAN (Aug. 21, 2020), https://www.cspan.org/video/?474940-1/senate-hearing-us-postal-service (video).
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76. Combined with the agency’s other operational changes, the impact of eliminating
late trips cannot be overstated. For example, fewer sorting machines in a facility may require the
remaining machines to process thousands more pieces of mail. As there is a limit to how much
the processing capacity of the remaining machines can be increased, the mail may run late on the
machine. Because a postal driver may not leave for their delivery route behind schedule, the driver is forced to embark on their delivery route even if there is no mail ready for delivery.67
Later drivers therefore have exponentially more mail to deliver, but not more time due to
insufficient overtime. Nor do delivery trucks have more space to account for all the extra mail.
With no extra trips to make up the shortfall, mail is left sitting in postal facilities or delivery bays
overnight.
77. Built in delays. In fact, the U.S. Postal Service is moving to institutionalize
delayed mail processing and sorting. Under the new “Expedited to Street/Afternoon Sortation
(ESAS)” initiative, postal workers at 384 facilities are prohibited from sorting “any mail during the morning operation” in an effort to “allow carriers to leave for the street earlier.”68 The 384
facilities include those located in the jurisdictions of Plaintiffs here—New Jersey, New York, New York City, and San Francisco.69
67 Michael Sainato, Postmaster General’s Changes Causing Mail Delays, USPS Workers Say, The Guardian (Aug. 16, 2020), https://www.theguardian.com/business/2020/aug/16/usps-maildelays-postmaster-general-changes-workers (“A carrier outside of Chicago claimed their station has experienced occurrences where mail trucks failed to deliver post to the USPS station on time, forcing carriers to go out on routes with practically no mail.”). 68 Stand-Up Talk Expedited to Street/Afternoon Sortation (ESAS) City Carrier, U.S. Postal Serv. (July 16, 2020), https://www.nrlca.org/Documents/WebContent/EditorDocuments/ESAS%20F2%20Stand%20U p%20Talk%207.16.20.pdf; see also Jory Heckman, USPS Reduces Morning Office Time for Letter Carriers for ‘More Consistent Delivery’, Federal News Network (July 24, 2020), https://federalnewsnetwork.com/management/2020/07/usps-reduces-morning-office-time-forletter-carriers-for-more-consistent-delivery. 69 Expedited to Street Afternoon Sortation (ESAS) Test Sites, Nat’l Assoc. of Letter Carriers,
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78. As a result, these carriers may now only deliver mail that was sorted the previous day, save for any “unsorted First Class flats” that would be “routed in delivery sequence while on the street.”70 After returning from the street in the afternoon, carriers sort the mail sitting at the postal office for delivery the next day.71 In other words, mail delivery is typically at least one day late.
79. Altered election mail standards. The impact of these changes is especially perilous given that the U.S. Postal Service abandoned its practice of treating all election mail as First Class mail. During prior elections, the U.S. Postal Service strived to process and deliver election mail at First Class speeds of one to three days without regard to the paid class of service.72 As a result, even ballots classified as Nonprofit Marketing Mail with delivery speeds of three to ten days were delivered on First Class timeframes. For example, the agency’s inspector general found that 95.6 percent of election and political mail was delivered within First Class mail speed standards.73
80. Reversing course on its longstanding policy, the U.S. Postal Service’s general counsel sent letters to 46 states and the District of Columbia on or around July 31, 2020 informing them that they should alter their election plans or pay First Class postage rates in order to mail their ballots in a timely fashion prior to the November election.74 For states, purchasing
https://www.nalc.org/news/nalc-updates/body/ESAS-Test-Sites-7-13.pdf. 70 Id. 71 Id. 72 Office of the Inspector General, Service Performance of Election and Political Mail During the 2018 Midterm and Special Elections, U.S. Postal Serv., (Nov. 4, 2019), https://www.uspsoig.gov/sites/default/files/document-library-files/2019/19XG010NO000.pdf. 73 Id. 74 U.S. Postal Service letters to states, Wash. Po. (Aug. 17, 2020), https://www.washingtonpost.com/context/u-s-postal-service-letters-to-states/b50799f2-25ad40ed-ba1e-9d648b1814ad/?itid=lk_interstitial_manual_6 (uploaded documents).
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First Class postage would raise the price per piece of election mail from 20 cents to 55 cents. As a result, states, counties, and cities will lose tens of millions of dollars at a time with state and local budgets already suffering due to COIVD-19 impacts. V. The U.S. Postal Service’s changes continue to have nationwide impact.
81. On August 18, 2020, DeJoy issued a statement that the U.S. Postal Service would be “suspending” certain of the Postal Policy Changes.75 Although DeJoy stated that “[m]ail processing equipment and blue collection boxes will remain where they are” and that overtime would be approved “as needed,” he did not indicate whether the hundreds of removed sorting machines and boxes would be returned. Nor did DeJoy explain if the U.S. Postal Service would be lifting the prohibitions on late trips or extra trips, halting ESAS, or committing to treating election mail as First Class mail.
82. Within days, on August 20, 2020, the U.S. Postal Service’s director of maintenance operations had clarified that sorting machines would not be returned to postal facilities. He instructed the agency’s maintenance managers “not to reconnect/reinstall machines that have previously been disconnected without approval from HQ Maintenance, no matter what direction they are getting from their plant manager.”76
83. On August 21, 2020, Postmaster General DeJoy testified before the Senate Homeland Security and Governmental Affairs Committee. He recognized that “transportation changes have led to delays,” testifying that “[w]e all feel, you know, bad about what the dip in
75 Postmaster General Louis DeJoy Statement, U.S. Postal Serv. (Aug. 18, 2020), https://about.usps.com/newsroom/national-releases/2020/0818-postmaster-general-louis-dejoystatement.htm. 76 Jacob Bogage and Christopher Ingraham, Here’s why the Postal Service wanted to remove hundreds of mail-sorting machines, Wash. Po. (Aug. 20, 2020), https://www.washingtonpost.com/business/2020/08/20/postal-service-mail-sorters-removals.
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our service level has been.”77 Specifically, DeJoy testified that the Postal Policy Changes did not “align” the separate systems for sorting, transporting, and delivering mail.78
84. Despite these acknowledgements, DeJoy refused to return the U.S. Postal
Service’s policies to the status quo ante. He testified that he would not reinstall removed sorting machines to facilities or reverse his policy eliminating extra trips.79 Although DeJoy verbally
committed to delivering election mail at the First Class rate speed, he failed to account for how
this commitment would play out in practical terms given that he was not rescinding the policies that were delaying delivery.80
85. On August 24, 2020, Postmaster General DeJoy testified before the House of Representatives Committee on Oversight and Reform.81 DeJoy reiterated that he would not reverse any of the Postal Policy Changes, despite again acknowledging impacts on service.82 He
testified that the agency would not replace sorting machines unless Congress provided $1 billion in funding for machines, which he stated Congress had “no way” of doing.83 DeJoy further
testified that he would not lift the prohibition of late trips or extra trips, claiming “I would not know how to reverse that now.”84 On election mail, DeJoy testified that the agency would act
“in a manner consistent with the proven processes and procedures that we have relied upon for
years,” while maintaining that “it would be best if the State election boards follow the
77 See Senate Hearing on U.S. Postal Service, C-SPAN (Aug. 21, 2020), https://www.cspan.org/video/?474940-1/senate-hearing-us-postal-service (video). 78 Id. 79 Id. 80 Id. 81 Postmaster General Louis DeJoy Testifies on Postal Service Operations & Mail-In Voting, CSPAN (Aug. 24, 2020), https://www.c-span.org/video/?474917-1/postmaster-general-louisdejoy-testifies-postal-service-operations-mail-voting (video). 82 Id. 83 Id. 84 Id.
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recommendations” from the U.S. Postal Service’s general counsel.85 VI. The U.S. Postal Service’s abrupt changes have triggered dramatic delays.
86. As former Postal Governor Williams testified, the Postal Policy Changes constitute “infrastructure cuts that are destroying the Postal Service’s commitment to service delivery standards.”86 Even though letter and flat mail volume is down during the COVID-19 pandemic, the mail is moving much more slowly. These drop-offs have caused widespread delays and service gaps in the delivery of mail of all types, including in Plaintiffs’ jurisdictions.
87. The U.S. Postal Service’s own records show that on-time delivery of First Class and flat mail significantly dropped off in mid-July, following the implementation of the Postal Policy Changes.87 Although on-time delivery in the agency’s Eastern service area had hovered between 91 and 95 percent in the preceding five months, on-time delivery dropped for three weeks straight in July—down to 79 percent the week of July 19.88 Nationally, on-time delivery was down to 84 percent.89
85 Id. 86 See Progressive Caucus ad hoc hearing on Trump Admin’s sabotage of USPS operations, Cong. Progressive Caucus (Aug. 20, 2020), https://www.pscp.tv/w/1BdxYnvDppzKX (video). 87 U.S. Postal Serv., Eastern Area AIM Meeting - Service Update (Aug. 4, 2020), https://postalpro.usps.com/node/8407 (including Figures 1 and 2). For Figures 1 to 4, “SPYL” refers to “same period last year.” Additionally, FY2020 started on October 1, 2019 for the U.S. Postal Service. Accordingly, Week 41 corresponds to the week of July 5. 88 Id. 89 Id.
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Case 1:20-cv-02340 Document 1 Filed 08/25/20 Page 29 of 64 Fig. 1
88. The U.S. Postal Service’s records show that on-time delivery of Marketing Mail—which includes election mail in many states—dropped even lower, from about 91 to 94 percent in the preceding months down to almost 73 percent in mid-July.90 That number had rebounded only to about 79 percent by the last week of July, a full 16 percent drop compared to the same period last year.91
Fig. 2
90 Id. 91 Id.
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89. In the Pacific region, First Class and flat mail on-time delivery likewise began to dip sharply in early July, exceeding service impacts typically experienced during the U.S. Postal Service’s busy holiday season.92 That number had rebounded somewhat by the start of August, but only matching holiday service levels and still 10 percent below the same period last year.93
Fig. 3
90. For Marketing Mail, drop-offs in the Pacific region were even more pronounced. On-time delivery began to dip below target levels in late June, taking a complete nose dive starting in the beginning of July.94 Levels had dropped from roughly 94 percent to about 83 by mid-July, only to drop down further by the first week of August.95
92 U.S. Postal Serv., Pacific Area AIM Meeting Presentation (Aug. 13, 2020), https://postalpro.usps.com/node/8472 (including Figures 3 and 4). 93 Id. 94 Id. 95 Id.
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Case 1:20-cv-02340 Document 1 Filed 08/25/20 Page 31 of 64 Fig. 4
91. Other U.S. Postal Service records show that processing delays following the Postal Policy Changes contributed to the impact on on-time delivery. An August 12, 2020 presentation shows performance drops in both processing and delivery.96
Fig. 5
96 U.S. Postal Serv., Service Performance Measurement: PMG Briefing (Aug. 12, 2020), available at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/PMG%20Briefi ng_Service%20Performance%20Management_08_12_2020.pdf (Figures 5 to 7).
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Case 1:20-cv-02340 Document 1 Filed 08/25/20 Page 32 of 64 Fig. 6
Fig. 7
92. Beginning in June 2020, Plaintiffs have felt the acute effects of the U.S. Postal Service’s order to remove hundreds of mail-sorting machines across the country. In Plaintiffs’ jurisdictions, the U.S. Postal Service ordered the removal of:
i. Fifty-two machines in New York, including (1) five Delivery Bar Code Sorters out of 20 from one Buffalo, NY postal processing facility alone, (2) 32

Case 1:20-cv-02340 Document 1 Filed 08/25/20 Page 33 of 64
four out of 15 machines from the Taft Road facility in Syracuse, NY,97 (3)
and 15 machines across the New York City area.
ii. Twenty Delivery Bar Code Sorters from Kearny, NJ, Teterboro, NJ,
Bellmawr, NJ, Hamilton, NJ, and New Castle, DE, each of which are major
distribution centers servicing New Jersey. The agency has also removed or is
removing four Advanced Facer Canceler Systems from Kearny, NJ,
Bellmawr, NJ, and New Castle, DE, and three Automated Flat Sorting
Machines from Kearny, Teterboro, and Bellmawr. iii. Four machines in Hawaii.98 Sorting capacity for Honolulu has reportedly
been reduced by approximately 100,000 to 200,000 pieces of mail per hour.99
iv. Nine sorting machines in San Francisco.
93. These machines have played a critical role in the U.S. Postal Service’s operations
for over twenty years. For example, one Advanced Facer Canceller System positions letter mail
and postmarks stamps at 36,000 pieces per hour. A single Delivery Bar Code Sorter
electronically sorts an average of 30,000 individual pieces of mail per hour and places them into
97 Mark Weiner, Central New York mail delivery slows as sorting machines are tossed, unions say, The Post-Standard (Aug. 19, 2020), https://www.syracuse.com/politics/cny/2020/08/centralnew-york-mail-delivery-slows-as-sorting-machines-are-tossed-unions-say.html. 98 See Ari Berman, DeJoy Says USPS Won’t Reinstall More Than 600 Removed Mail Sorting Machines, Mother Jones, Aug. 21, 2020, https://www.motherjones.com/politics/2020/08/dejoysays-usps-wont-reinstall-more-than-600-removed-mail-sorting-machines (document attached to article); see also Letter from Rickey R. Dean, Manager, Contract Administrator, U.S. Postal Serv., to Mark Dimondstein, President, Am. Postal Workers Union (June 17, 2020), https://www.21cpw.com/wp-content/uploads/2020/06/mail-processing-equipment-reduction_617-2020.pdf. 99 See Erin Cox, Elise Viebeck, Jacob Bogage, Christopher Ingraham, Postal Service warns 46 states their voters could be disenfranchised by delayed mail-in ballots, Washington Post, Aug. 14, 2020, https://www.washingtonpost.com/local/md-politics/usps-states-delayed-mail-inballots/2020/08/14/64bf3c3c-dcc7-11ea-8051-d5f887d73381_story.html (map included in article).
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walk sequence bins that are ready for immediate delivery by letter carriers. The Automated Flat Sorting Machine sorts flat mail at 17,000 pieces per hour.100
94. The removal of electronic sorting machines directly affects postal operations by reducing sorting capacity, adding strain to both the remaining machines in use and the available labor force. Because of the prohibitions on late trips and extra trips, mail will be left behind if postal workers are unable to sort the day’s mail before scheduled leave times.
95. Whereas ordinarily letter carriers would use overtime allowances to deliver mail following the conclusion of their shift, the U.S. Postal Service has instituted significant roadblocks for the approval of overtime—even going so far as to outright ban overtime in certain offices in Plaintiffs’ jurisdictions.
96. Prior to the implementation of these dramatic changes, letter mail left behind in postal facilities overnight was exceedingly rare. By contrast, the combination of the removal of sorting machines, the prohibition on late and extra trips, and the severe impediments to overtime all lead to a startling reality: Every day, tens of thousands of pieces of mail in Plaintiffs’ jurisdictions are going undelivered.
97. In central New York State, for example, the combined effects of machine removals and other Postal Policy Changes at the Syracuse facility has led to delivery delays of one to three days.101 Certain categories of mail have been delayed for up to seven days.102 Prior to the Postal Policy Changes, the Syracuse facility was a top-three Northeast-based processing
100 U.S. Postal Serv., Postal Facts: Innovation in the Mail, https://facts.usps.com/innovation (last visited Aug. 24, 2020. 101 Mark Weiner, Central New York mail delivery slows as sorting machines are tossed, unions say, The Post-Standard (Aug. 19, 2020), https://www.syracuse.com/politics/cny/2020/08/centralnew-york-mail-delivery-slows-as-sorting-machines-are-tossed-unions-say.html. 102 Id.
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plant for timely delivery of First Class mail.103 98. Delivery issues tend to impact the same communities repeatedly. Because mail is
typically sorted by locality and in the same order each day, localities who are “last in line” for sorting are more likely to have their mail delayed for multiple days in a row.
99. In New York, the impact on delivery can be seen on an almost daily basis throughout the state:
i. On July 11, 2020, no letter mail was delivered in the hamlets of Bowmansville, DePew, or the town of Lancaster. On a typical day, these localities collectively receive approximately 80,000 pieces of mail;
ii. On July 25, 2020, no letter mail was delivered in the hamlets of Stow, Weston Mills, and Maple Springs;
iii. In late July 2020, no letter mail was delivered in the hamlet of DePew or in the town of Lancaster;
iv. On July 10, 2020, July 25, 2020 and August 3, 2020, no letter mail was delivered in Centreville, New York;
v. On July 18, 2020, July 25, 2020 and August 1, 2020, no letter mail was delivered in the localities of Stow and Greenhurst;
vi. Between August 10–12, 2020, 173 Express Mail parcels were not delivered to customers in the Buffalo region. Due to Express Mail warranty requirements, customers may seek a refund for late delivery. At a minimum rate of $26 per Express Mail parcel, this amounts to approximately $4,400.00 owed to customers for those days alone;
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vii. On August 11, 2020, approximately 36,000 pieces of letter mail were not delivered in the town of East Amherst;
viii. On August 14, 2020, several boxes of mail that were scheduled to be delivered on August 7, 2020 were still sitting undelivered in the Baychester, NY postal facility; and
ix. On August 16, 2020, several tubs of mail at the Planetarium Station processing facility in New York City were staged for delayed next-day delivery, rather than going out the same day.
100. Delivery in New Jersey has experienced similar impacts: i. On August 16, 2020, Marketing Mail packages scheduled for delivery on July 18, 2020 were still sitting in the New Jersey International/National Distribution Center in Jersey City, NJ, tagged with “Delayed” stickers; ii. On August 16, 2020, Marketing Mail packages scheduled for delivery on August 4, 2020 were still sitting in the New Jersey International/National Distribution Center in Jersey City, NJ, tagged with “Delayed” stickers; and
iii. On August 16, 2020, multiple carts of package mail were sitting in the New Jersey International/National Distribution Center in Jersey City, NJ, some tagged with “Delayed” stickers.
101. Upon information and belief, the U.S. Postal Service has still not sought an advisory opinion from the Postal Regulatory Commission for the Postal Policy Changes.
102. Upon information and belief, the U.S. Postal Service implemented its far-reaching Postal Policy Changes without due consideration for their deleterious nationwide effects and impact on postal operations, including but not limited to the collection, transportation, and
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delivery of important letter mail. 103. Upon information and belief, due to the implementation of the Postal Policy
Changes, the U.S. Postal Service has failed to provide prompt, reliable and efficient services to customers in Plaintiffs’ jurisdictions.
104. Upon information and belief, due to the implementation of the Postal Policy Changes, the U.S. Postal Service has failed to maintain postal facilities of such character and in such locations necessary to ensure ready access to essential postal services.
105. Upon information and belief, due to the implementation of the Postal Policy Changes, the U.S. Postal Service has failed to provide a maximum degree of effective and regular postal services to all customers and communities in Plaintiffs’ jurisdictions. VII. The U.S. Postal Service’s delays harm Plaintiffs’ election plans.
106. Due to the effects of COVID-19, experts estimate that roughly 80 million Americans will vote by mail in November.104 Plaintiffs also anticipate their residents will vote by mail in record numbers. Because Plaintiffs’ residents must submit their ballots via the U.S. Postal Service, Plaintiffs will be forced to expend substantial economic and administrative resources in order to ensure that all ballots sent through the U.S. Postal Service are counted.
107. Given the documented delays in mail delivery, the U.S. Postal Service’s equivocation on how it will ensure election mail is timely delivered, and the Trump Administration’s campaign to undermine both the agency and mail-in voting, Defendants’ actions are interfering with Plaintiffs’ administration of state electoral schemes, undermining Plaintiffs’ ability to perform core governmental functions, and imposing added costs and
104 Juliette Love, Matt Stevens, and Lazaro Gamio, Where Americans Can Vote by Mail in the 2020 Elections, The N.Y. Times (Aug. 11, 2020), https://www.nytimes.com/interactive/2020/08/11/us/politics/vote-by-mail-us-states.html.
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administrative burdens. A. New York. 108. For years, Plaintiff the State of New York has permitted voters to cast an absentee
ballot if they satisfy a justification set forth in the State’s Election Law.105 109. In advance of the November general election, the Legislature has expanded
absentee ballot access to all New Yorkers, by permitting voters to cite the risk of illness, including COVID-19, as a basis to apply for an absentee ballot.106
110. Governor Cuomo issued an Executive Order to provide for similar access in advance of the June primary election,107 resulting in a greater than six-fold increase of the number of voters voting by absentee ballots, as compared to the June 2016 primary election. The number of absentee ballots cast in the 2020 general election could exceed ten times the number cast in the 2016 general election.108 The increased reliance on mail voting at the November 3, 2020 election increases the exposure of New York’s voting process to any problems with mail delivery.109
111. To prepare for the substantial increase in absentee voting, the Legislature has permitted voters to request absentee ballots immediately, earlier than the thirty-day window
105 In New York, absentee ballots are available to voters who: will be absent from their county of residence, or for New York City residents absent from New York City, on Election Day; have a temporary or permanent illness or disability; are the primary caregiver of an individual who has a temporary or permanent illness or disability; are patients at a Veterans’ Administration Hospital; or are detained in jail awaiting a Grand Jury action, or confined in prison for conviction on an offense other than a felony. N.Y. Elec. Law § 8-400 (McKinney). 106 S.8015-D/A.10833. 107 Exec. Order No. 202.15 (Apr. 9, 2020). 108 Decl. of Robert A. Brehm at ¶9, Gallagher v. NYSBOE, No. 20 Civ. 05504 (S.D.N.Y. Jul. 22, 2020), ECF No. 18. 109 Id.
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previously provided in the Election Law for certain requests.110 New York’s city and county boards of Elections will begin mailing out absentee ballots on or about September 18,111 and voters can apply by mail for absentee ballots up to seven days prior to Election Day, or can apply in person no later than the day before Election Day.112
112. An absentee ballot either must be postmarked by Election Day and received within seven days after Election Day to be counted, or, if it lacks a postmark, be received by the day after Election Day.113
113. Voters may also take completed absentee ballots to: an early voting polling place during New York’s early voting period (October 24 through November 1), their local Board of Elections office, or a polling place on Election Day.114
114. With 70 days to Election Day, New York’s State Board of Elections has been working quickly to prepare for an election with historic administrative challenges. New Yorkers will be selecting the President, all New York members of the United States House of Representatives, the State Senate, State Assembly and a host of judicial and local contests— amidst a global pandemic.115 New York’s absentee voting system, designed to accommodate approximately 4% to 10% of New York’s participating voters, is likely to account for 40% or
110 S. 8783a/A. 10807. 111 New York State Board of Elections, Absentee Voting, https://www.elections.ny.gov/votingabsentee.html (last visited Aug. 20, 2020). 112 N.Y. Election Law § 8-400(2)(c). 113 N.Y. Elec. Law § 8-412 (McKinney); S. 8799/A. 10808. 114 New York State Board of Elections, Absentee Voting, https://www.elections.ny.gov/votingabsentee.html (last visited Aug. 20, 2020). 115 New York Board of Elections Testimony to N.Y. Senate Standing Committee on Elections, Senate Standing Committee on Local Government, Assembly Standing Committee on Election Law, Assembly Standing Committee on Local Governments, Elections in a Pandemic: A Review of the 2020 Primaries (Aug. 11, 2020).
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more of the total votes cast in the November election.116 Mail delays may require New York election officials to take other measures to avoid disenfranchisement of New York voters.
B. Hawaii. 115. On July 1, 2019, Act 136 went into effect for the State of Hawaii. See 2019 Haw. Sess. Laws Act 136, §§ 2 & 63 at 475-79, 499 (codified at Haw. Rev. Stat. Chapter 11, Part VIIA). Act 136 adopted a system of virtually universal voting by mail for Hawaii, starting with the 2020 Primary Election. Haw. Rev. Stat. § 11-101. 116. Pursuant to Act 136, county clerks are directed, to the extent possible, to mail ballot packages to all registered voters so that they will receive the ballot package approximately 18 days before an election. Id. § 11-102. Voters are then allowed to return a completed ballot in one of three ways: (1) by mail so that it is received by the clerk by closing time on the date of the election; (2) by personal delivery at a designated place of deposit no later than 7:00 pm on the date of the election; and (3) by personal delivery to a voter service center no later than closing time on the date of the election. Id. § 11-102. Voters, particularly disabled voters, may also register and vote in person at voter service centers, which are open 10 business days before and through the date of the election. Id. §§ 11-1, 11-15.2, 11-109. 117. Voting by mail is extremely popular in Hawaii. In the 2020 primary election, 99% of the votes cast were delivered by mail ballot rather than in person.117 118. Because Hawaii’s election system is now almost entirely a vote by mail system (with a few exceptions), any actions by the U.S. Postal Service that reduce the efficiency of or
116 Id. 117 Dan Nakaso, Record primary election sees 99% of votes cast by mail-in ballots, Honolulu Star-Advertiser (Aug. 11, 2020), https://www.staradvertiser.com/2020/08/11/hawaiinews/record-primary-election-sees-99-of-votes-cast-by-mail-inballots/?HSA=82d1c031c503128f38f06cadd46fbca425c92d81.
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delay mail delivery will have a detrimental effect on Hawaii’s election system. 119. Changes in U.S. Postal Service practices and procedures, such as reductions in
overtime, refusal to allow extra or late mail delivery trips, delays built into procedures, removal of mail sorting machines, and removal of mailboxes, threaten to delay mail delivery.
120. If postal workers are forced to miss work due to infection or quarantine as a result of COVID-19, that will create staffing shortages and make the impact of the U.S. Postal Service’s new practices and procedures even worse. Since August 2020, Hawaii has been experiencing a major spike in coronavirus cases.118
121. Furthermore, voter turnout for the November 2020 election is likely to be very high. The 2020 primary election turnout was 406,425, which represents an increase from 38.6% in 2018 to 51.1% in 2020.119 And general elections usually have higher turnout than primary elections.120 In the last presidential election year, the 2016 primary election had a turnout of 252,725 while the 2016 general election had a turnout of 437,664.121 The fact that the upcoming election will be the very first general election to be held under the new mail-in ballot standard means that unexpected circumstances may arise, which may magnify the detrimental impact of the Postal Policy Changes.
122. Under Hawaii law, the chief election officer of the State Office of Elections supervises all state elections. Haw. Rev. Stat. § 11-2. However, for elections by mail involving
118 See State of Hawaii – Department of Health, Disease Outbreak Control Division -- COVID19, https://health.hawaii.gov/coronavirusdisease2019/what-you-should-know/current-situationin-hawaii/ (last visited Aug. 18, 2020). 119 State of Hawaii – Office of Elections, Registration and Turnout Statistics, https://elections.hawaii.gov/resources/registration-voter-turnout-statistics/ (last visited Aug. 18, 2020). 120 Id. 121 Id.
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both state and county offices, or involving both federal and county offices, the counties are responsible for the mailing and receipt of ballots. Id. § 11-110(b)(1)(A). Therefore, for the upcoming election, the county clerks are responsible for actually sending the mail ballots to the registered voters in their respective counties and for receiving them when they are returned.
123. The county clerks in the majority of Hawaii’s counties are concerned that the Postal Policy Changes threaten to delay mail delivery and harm Hawaii’s election system.
124. The City and County of Honolulu has the largest population of Hawaii’s counties and, therefore, the volume of mail involved would be greater.122 The Counties of Maui, Hawaii, and Kauai are more rural than Honolulu, postal workers have greater distances to cover, and mail may have to be processed in Honolulu as well.
125. Furthermore, Honolulu generally mails its ballots at the Marketing Mail rate, but the U.S. Postal Service’s past practice had been to deliver the ballots within the same time frame as First-Class Mail, rather than within the longer Marketing Mail time frame. If the U.S. Postal Service changes this practice and Honolulu continues to use the Marketing Mail rate, mail ballots for Honolulu may be delayed. If Honolulu instead pays the First-Class Mail rate to ensure delivery on time, it will dramatically increase Honolulu’s costs. Maui, Hawaii, and Kauai Counties generally mail their ballots using First-Class Mail.
126. The counties may have to expend time and resources informing the public that they need to mail in their ballots earlier than previously expected. The counties may also have to obtain and install more places of deposit (i.e., drop boxes) to help ensure that people have
122 See Department of Business, Economic Development & Tourism, Census – Annual Estimates of the Resident Population for Counties in Hawaii: April 1, 2010 to July 1, 2019, https://census.hawaii.gov/wp-content/uploads/2020/03/co-est2019-annres-15.pdf (last visited Aug. 18, 2020).
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additional means of returning their ballots that do not rely on the mail. 127. In letters sent to 46 states, the U.S. Postal Service warned states that mail-in
ballots may not arrive in time to be counted, see supra. The letter sent to Hawaii warned that “certain deadlines concerning absentee ballots appear to be incongruous with the Postal Service’s delivery standards. This mismatch creates a risk that some ballots will not be returned by mail in time to be counted under your laws as we understand them.”123
128. The State Office of Elections previously recommended that voters mail in their ballots three to five days before the election.124 However, in the letters sent to the states, the U.S. Postal Service is now telling states to have their voters mail in their ballots a week before the election.125
129. Furthermore, under Hawaii law, if someone does not receive a mail ballot five days before the election (or otherwise needs a replacement ballot within five days of the election), Act 136 authorizes voters to request that a replacement ballot be sent to them electronically. Haw. Rev. Stat. § 11-107. However, Hawaii law also expressly provides that those ballots, when completed, may be returned by mail (in addition to three other methods). Id. § 11-107(b)(2). But if that ballot is sent by mail, it may not arrive in time, since it will
123 See U.S. Postal Service letters to states, Wash. Po. (Aug. 17, 2020), https://www.washingtonpost.com/context/u-s-postal-service-letters-to-states/b50799f2-25ad40ed-ba1e-9d648b1814ad/?itid=lk_interstitial_manual_6 (uploaded document). 124 See State of Hawaii – Office of Elections, Hawaii Votes by Mail, https://elections.hawaii.gov/hawaii-votes-by-mail/ (last visited Aug. 18, 2020). 125 See U.S. Postal Service letters to states, Wash. Po. (Aug. 17, 2020), https://www.washingtonpost.com/context/u-s-postal-service-letters-to-states/b50799f2-25ad40ed-ba1e-9d648b1814ad/?itid=lk_interstitial_manual_6 (uploaded document) (“To allow enough time for ballots to be returned to election officials, domestic voters should generally mail their completed ballots at least one week before the state's due date. So, if state law requires ballots to be returned by Election Day, voters should mail their ballots no later than Tuesday, October 27.”).
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necessarily be mailed less than a week before the election. Consequently, the new U.S. Postal Service estimates, which are based on the new practices and procedures, are inconsistent with express provisions of Act 136.
130. Therefore, the Postal Policy Changes threaten to delay delivery of the mail and could affect whether some Hawaii mail ballots are counted.
131. The Postal Policy Changes threaten to undermine Hawaii’s election laws on voting by mail and harm Hawaii’s sovereign interest in enforcing its own laws.
132. The Postal Policy Changes may require expenditure of additional time and resources, thereby harming Hawaii’s proprietary interests.
133. Finally, by interfering with the right to vote of Hawaii residents, the Postal Policy Changes threaten Hawaii’s quasi-sovereign interests.
C. New Jersey. 134. For over a decade, New Jersey has allowed any qualified voter to vote by mail without being required to demonstrate a reason why the voter cannot appear at the polling location on Election Day. N.J. Stat. Ann. § 19:63-3. Paragraphs 135 to 139 below describe certain statutory procedures and requirements for mail-in voting in New Jersey, and Paragraphs 140 to 146 describe certain changes to those procedures and requirements made by Executive Orders issued by Governor Philip D. Murphy with respect to the primary election held on July 7, 2020, and the general election that will be held on November 3, 2020, due to the impact of COVID-19 on New Jersey. See N.J. Exec. Order 144 (May 15, 2020) (“NJ EO 144”) (concerning the primary election); N.J. Exec. Order 177 (August 14, 2020) (“NJ EO 177”) (concerning the general election). 135. Under New Jersey statutes, each of the State’s county clerks starts delivering
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mail-in ballots no later than 45 days before an election to all voters who have already applied for a mail-in ballot. N.J. Stat. Ann. § 19:63-9(a). Thereafter, county clerks deliver mail-in ballots on a rolling basis to voters whose applications are approved at a later date. Id.
136. Under New Jersey statutes, a voter may apply for a mail-in ballot by mail up to 7 days before an election, or may apply in-person up to 3 p.m. the day before the election. N.J. Stat. Ann. § 19:63-3(b), (d). In addition, certain municipalities with populations of 500 or less can conduct elections entirely by mail, and voters in those jurisdictions automatically receive mail-in ballots. N.J. Stat. Ann. §§ 19:62-1 to -2.
137. County clerks are required to deliver the mail-in ballots by first-class mail or hand delivery. N.J. Stat. Ann. § 19:63-9(a).
138. New Jersey’s mail-in voting materials are designed to protect the secrecy of each voter’s ballot and to ensure that each ballot is cast by the voter entitled to cast it. Each mail-in voter receives two envelopes—an inner envelope and an outer envelope—to return to the county board of elections. N.J. Stat. Ann. § 19:63-12 to -13. After marking the ballot, which itself includes no information identifying the voter, the voter places it in the inner envelope, which is then sealed. On the margin of the flap on the inner envelope is a certificate, to be signed by the voter and any person assisting the voter, attesting to their identity(ies) and address(es). N.J. Stat. Ann. § 19:63-13. The voter then seals the inner envelope and attached certificate in the outer envelope, which is addressed to the appropriate county board of elections. N.J. Stat. Ann. § 19:63-12. At the discretion of the county clerk, the outer envelope may be a postage paid return envelope. Id. No one other than the voter may mail or transport the ballot unless the envelope is sealed and the bearer’s name, address, and signature appear on the outer envelope. Id.
139. Under New Jersey statutes, mail-in ballots that are received up to 48 hours after
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the close of the polls may be valid if they are postmarked no later than the day of the election. N.J. Stat. Ann. § 19:63-22. The county boards of elections canvas the valid mail-in ballots before counting and certifying the results. Id. Canvassing is the process used to determine if a mail-in ballot is valid, which involves comparing the signature on the ballot to the signature recorded on the voter rolls and confirming compliance with the requirements of applicable statutes. Once a mail-in ballot is determined to be valid, the board of elections strips the certificate from the inner envelope and stores the sealed inner envelope containing the marked ballot, which is to be opened on Election Day. Id. § 19:63-22. This preserves the secrecy of the ballot, once its validity has been confirmed, since removing the certificate affixed to the inner envelope leaves the inner envelope and ballot without any identifying information.
140. On May 15, 2020, Governor Murphy issued NJ EO 144, to protect public health in connection with the primary election held on July 7, 2020, including by providing that the primary election be conducted primarily via vote-by-mail to reduce overcrowding at polling locations and minimize the risk of community spread of COVID-19.
141. Among other things, NJ EO 144 provided that mail-in ballots be sent to all “active” registered Democratic and Republican voters without the need for an application; that all “active” voters registered as “Unaffiliated” and all “inactive” registered voters receive voteby-mail applications; that the deadline for submitting a vote-by-mail application be suspended; that all vote-by-mail return envelopes and vote-by-mail applications have prepaid postage; that a schedule adopted by the Secretary of State would displace the statutory deadlines for delivery of mail-in ballots; and that each county, to the extent possible, procure at least five secure ballot drop boxes and place them in locations readily accessible to the registered voters within the county. See NJ EO ¶¶ 1-3, 6, 12.
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142. To account for the increase in vote-by-mail ballots and ensure that registered voters’ efforts to vote were not impacted by U.S. Postal Service delays, NJ EO 144 suspended the ballot-return deadline of 48 hours after the close of polls, for ballots postmarked on or before the date of the election, so that every vote-by-mail ballot postmarked on or before the day of the election and received by July 14, 2020, at 8:00 p.m. would be considered valid and canvassed. Id. ¶ 14.
143. NJ EO 144 further provided for in-person voting by provisional ballot, subject to health and safety standards. Id. ¶¶ 7-10, 16-17. Moreover, NJ EO 144 directed the Secretary of State to establish standards to ensure that all eligible voters, including but not limited to those with disabilities, were able to exercise their right to vote, and directed the Secretary and county election officials to coordinate with the Postal Service to facilitate proper delivery of ballots. Id. ¶¶ 19-20.
144. On August 14, 2020, Governor Murphy issued NJ EO 177, to protect public health in connection with the general election to be held on November 3, 2020, including by providing that the general election be conducted primarily via vote-by-mail to reduce overcrowding at polling locations and minimize the risk of community spread of COVID-19. Through NJ EO 177, Governor Murphy effected similar modifications to the otherwise applicable statutory procedures and requirements as in NJ EO 144. NJ EO 177 was issued after the Secretary of State received correspondence from the U.S. Postal Service identifying potential impacts of mail delivery processes on the November 3 general election.
145. Pursuant to NJ EO 177, all active registered voters will automatically be sent a mail-in ballot for the election, without the need to apply for one, at least 29 days before the election and in a manner to ensure the ballot’s timely receipt and return; whenever a county clerk
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forwards a mail-in ballot by mail to a voter between the 29th day and the 13th day before the election, it shall be transmitted within three business days of receipt of the application and in a manner to ensure the ballot’s timely receipt and return; all vote-by-mail return envelopes will have prepaid First-Class postage; the deadline to apply for a mail-in ballot by mail will be October 23, 2020; the deadline for returning a vote-by-mail application in person is suspended; and each county, to the extent possible, will have at least ten secure ballot drop boxes placed in locations readily accessible to the registered voters within the county. NJ EO 177, ¶¶ 1-2, 4, 1112. In addition, to account for the increase in vote-by-mail ballots and to help ensure that registered voters’ efforts to vote are not impacted by delays in the postal service, the ballot-return deadline of 48 hours after the close of polls, for ballots postmarked by the date of the election, is suspended, so that every vote-by-mail ballot postmarked on or before the day of the election and received by November 10, 2020, at 8:00 p.m. will be considered valid and canvassed, assuming the ballot meets all other statutory requirements. Id. ¶ 14. Additionally, every ballot without a postmark, and every ballot mismarked and confirmed by the post office to have been received by the post office on or before election day, that is received by the county board of elections from the Postal Service within 48 hours of the closing of the polls shall be considered valid and canvassed, assuming the ballot meets all other statutory requirements. Id.
146. NJ EO 177 further provides for in-person voting by provisional ballot, subject to health and safety standards, and requires public schools to close on election day to facilitate inperson voting. Id. ¶¶ 5-10, 18-19. In contrast to NJ EO 144, which governed the primary election, NJ EO 177 allows voters to return mail-in ballots at polling places for the general election. Compare NJ EO 144 ¶ 11, with NJ EO 177 ¶¶ 8-9. VIII. The U.S. Postal Service’s delays harm Plaintiffs’ sovereign functions.
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147. Plaintiffs depend upon the U.S. Postal Service to perform a wide range of critical functions, including the administration of elections, the provision of medical care, and the delivery of notices affecting residents’ legal obligations and rights. All of these functions are disrupted by the delivery delays caused by Defendants’ ill-conceived operational changes to the U.S. Postal Service.
148. For example, New York State’s Office of Children and Family Services (“OCFS”), and Office of Temporary and Disability Assistance (“OTDA”), which provide programs, benefits, and services to support New York’s most vulnerable populations, both rely heavily on U.S. Postal Service mail to deliver critical benefits and correspondence to New Yorkers, including notices to hearings at which they may challenge administrative actions. See N.Y. SSL 390, 18 NYCRR 413.3, 413.5 (OCFS fair hearing to challenge termination of day care operator license); 45 CFR § 205.10(4)(i)(A) (OTDA hearing notices must be mailed at least ten days prior to final agency action). Delays in mail risk widespread defaults on such rights that agencies will be forced to either expend resources to restore, or have the communities they serve forfeit.
149. In New York City, the Department of Finance (“DOF”) collects the revenues that make every city service possible, including public education, police and fire protection, hospitals and healthcare facilities, and parks and recreation centers. DOF relies heavily on timely delivery of mail by the U.S. Postal Service.
150. Each year, DOF receives billions of dollars in essential revenue by the mail. For example, in the fiscal year ending June 30, 2020, DOF received by mail approximately $7 billion in revenue for fiscal year 2020, comprised of approximately 900,000 property tax payments by mail, containing $4.2 billion in city revenue; approximately 220,000 business tax payments by
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mail containing $2.8 billion in city revenue; and approximately 1.2 million parking fine payments by mail containing $80 million in city revenue.
151. Money received by mail is immediately deposited into an interest-bearing account and subsequently transferred to income-earning investments. Based on the $7 billion in property taxes, business taxes, and parking fines received by mail in fiscal year 2020, a postal delay of just one day on average over the course of the year would cost the city millions of dollars in lost income.
152. In addition, mail delays would likely lead DOF to send significantly greater numbers of delinquency notices (or notices with out-of-date balances), causing confusion and the need to devote extra staff resources to resolving the issues.
153. Further, postal delays would have significant consequences for the recipients of delinquency notices, even if the balance due is accurate, because the mailing of the notices triggers deadlines for payment of overdue amounts. For example, a taxpayer has 30 days to pay certain overdue business income and excise taxes, running from the mailing of a Notice of Tax Due, in order to avoid the Notice and Demand—a statutory notice. And if overdue taxes are not paid within 10 days after the mailing of a Notice and Demand, a tax warrant can be docketed.
154. Delays impact New York City’s other governmental functions as well. The New York City Department of Social Services (“DSS”) is the largest local social services agency in the country. It is comprised of two subsidiary administrative agencies: the Human Resources Agency (“HRA”) and the Department of Homeless Services (“DHS”). DSS is dedicated to fighting poverty and income inequality by assisting over three million New Yorkers through the administration of more than twelve major public social service programs in New York City. These public benefits programs include: the Supplemental Nutrition Assistance Program
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(“SNAP,” formerly known as the Food Stamps program); temporary Cash Assistance programs, such as the Temporary Assistance for Needy Families (“TANF”) program and New York State and City-funded benefits under the New York State Safety Net Assistance Program; the Medicaid program; and homelessness prevention services.
155. DSS relies on the U.S Postal Service to send and receive a variety of time sensitive documents to and from its clients. The COVID-19 pandemic has increased such reliance as clients can no longer travel safely to physical locations.
156. For example, clients are entitled to send applications for Cash Assistance and SNAP to DSS by mail. Benefits will flow from the day the application is registered by DSS, which cannot occur until it is delivered by the U.S. Postal Service. Any delays by the U.S. Postal Service in delivering these applications to DSS prolong the time clients are without benefits and reduce the net amount of benefits they receive overall.
157. If additional information is necessary to process an application, DSS sends that request through the mail. DSS is required by various state and federal statutes and regulations to make an eligibility determination within a circumscribed period of time. See 7 U.S.C. § 2020(e)(3)); 7 C.F.R. § 273(a), (g)(1); and N.Y. Comp. Codes R. & Regs. Tit. 18, § 387.2(o) (establishing time frames for SNAP). See also 45 C.F.R. § 206.10(a)(3); N.Y. Soc. Serv. Law § 158(4); N.Y. Comp. Codes R. & Regs. Tit. 18, § 351.8(b) (establishing time frames for various Cash Assistance programs). If delivery of documents necessary to establish eligibility is delayed by the U.S. Postal Service, client’s applications will be rejected through no fault of their own.
158. Furthermore, once clients are approved for SNAP and Cash Assistance benefits, they will receive their Common Benefit Identification Card (“CBIC”) in the mail, which provides access to those benefits. Prior to the COVID-19 pandemic, temporary cards (also
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known as vault cards) were provided to clients during the in-person application procedure so clients could access their benefits while waiting for the permanent CBIC to arrive in the mail.
159. Since the pandemic, most interviews are no longer conducted in person in order to protect public health and safety. Now clients must depend on the U.S Postal Service for delivery of their CBIC. Delays in delivery prevent clients from immediately accessing vital financial assistance, unless they travel to one of HRA’s open borough-based offices to obtain a temporary vault card or to the state’s contracted vendor in Brooklyn to obtain a permanent CBIC, jeopardizing public health during the pandemic.
160. Postal delays in delivering CBIC cards place already vulnerable clients in even greater jeopardy of food insecurity. Over the last two months, DSS has received reports that clients are experiencing lengthy delays in receiving CBIC cards by mail. Those delays have resulted in an influx of clients in desperate need of access to their benefits to travel to a DSS office and wait on increasingly longer lines in order to obtain temporary relief pending the delivery of their CBIC card.
161. Once benefits are approved, many clients are required to recertify every six months. DSS mails notices, forms, and other correspondence vital to the recertification process to some of its clients. If responses are not received timely, DSS must close cases and terminate benefits as required by N.Y. Comp. Codes R. & Regs. Tit. 18, §§ 351.21 and 387.17.
162. Notices of Intent to terminate or reduce benefits are also sent out by mail. Clients have ten days from the receipt of such notice to request a hearing if they wish for their benefits to continue during its pendency. If notices are delayed by the U.S Postal Service, clients may miss the window in which they have to request a hearing, resulting in the termination of their benefits. Increased terminations may lead to an increase in new applications, as well as increased foot
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traffic in the centers that remain open during the COVID-19 pandemic which, in turn, jeopardizes public health and safety.
163. The U.S. Postal Service’s delays will increase the burden on DSS’s administration of these benefit programs as individual cases may be closed due to the delays and interruptions. This will result in an increase in requests for fair hearings and in the administrative resources that such hearings require.
164. Furthermore, mail delays will result in the loss of or delay in providing SNAP and Cash Assistance benefits among New York’s most vulnerable families and individuals. The loss of these benefits for any period of time will lead to increased financial hardship and risk of food insecurity.
165. DHS operates the City of New York’s shelter system, which provides temporary housing for approximately 55,000 individuals. One of DHS’s primary goals is to assist shelter residents in securing permanent housing, including through various rental subsidy programs. Prior to the COVID-19 pandemic, DHS would hand-deliver initial rental subsidies to new landlords at the time shelter residents were to take possession of an apartment. Because of COVID-19 and limitations on in-person gatherings, DHS now sends these rental subsidies to landlords by the U.S Postal Service. The U.S. Postal Service’s delays have led to new landlords waiting weeks before receiving initial rental payments, and many have refused to allow the shelter residents to move into the apartment until payments were received, thereby impeding the ability of families and individuals to move out of shelters and requiring New York City to bear the costs of providing continued shelter for days or weeks.
166. Furthermore, many residents of the New York City shelter system receive vital medications through the mail. Delivery delays causing a lapse in treatment can have life
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threatening consequences and force vulnerable individuals to seek emergency health care. 167. Hawaii agencies also rely on the U.S. Postal Service to facilitate the performance
of important governmental functions. State courts, and the parties and attorneys appearing in state courts, often use the U.S. mail to serve notices and documents relating to court cases. See Haw. R. Civ. P. 5(b)(1)(b).
168. Hawaii administrative agencies often send important notifications or decisions to individuals using U.S. mail. People can miss important deadlines if the mail is delayed and can thereby suffer severe consequences, including loss of benefits or appeal rights (subject to COVID-19 suspensions). For example, the Hawaii Department of Taxation sends state tax notices via U.S. mail. See Haw. Rev. Stat. § 231-17. If taxpayers do not receive those notice and respond to them in a timely manner, they could be assessed penalties and interest. See id. §§ 231-34 to 231-41. The Hawaii Department of Human Services sends notices via U.S. mail, and important rights regarding public benefits may be lost if claimants do not receive those notices and respond in time. See Haw. Admin. R. §§ 17-649-3, 17-602.1-6. The Hawaii Department of Labor and Industrial Relations sends important notices regarding unemployment benefits or workers compensation benefits via U.S. mail, which also need to be received and responded to in time. See Haw. Rev. Stat. §§ 383-36, 383-38, 386-86, 386-87, 386-88; Haw. Admin. R. §§ 12-589, 12-10-72. The Hawaii Child Support Enforcement Agency also sends notices regarding child support cases, arrearages, hearings, and decisions using U.S. mail, which have to be received and responded to in time. See Haw. Rev. Stat. §§ 576E-4, 576E-5, 576E-6 576E-11, 576E-12, 576E-13.
169. To the extent that payments from Hawaii agencies are still being made by check, they would be affected by delays in the mail. See, e.g., Haw. Admin. R. § 17-681-9. Even
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payments now made by debit card would be affected in that initial delivery of the debit cards would still have to come by mail. See id. §§ 17-681-50 to 17-681-57. See also Haw. Rev. Stat. 576D-10(c).
170. Many New Jersey state agencies also rely on U.S. mail to carry out essential government functions. In particular, state and municipal courts and law enforcement officers commonly use regular U.S. mail to serve important court notices. For instance, preliminary notices of an intent to foreclose that precede an eventual judgment of foreclosure may be served by regular mail, as will service of process in civil cases when personal service is unsuccessful, see N.J. Court Rule 4:4-4.
171. Likewise, certain agencies with civil enforcement powers, such as the Department of Environmental Protection, deliver Notices of Violations to violators via U.S. mail. The Motor Vehicle Commission also delivers renewal driver’s licenses to New Jersey individuals via U.S. mail when a person renews their license online, and delivers reminders and the forms to renew a driver’s license or vehicle registration to residents via U.S. mail.
172. Further, New Jersey’s state agencies rely on U.S. mail to transmit certain public benefits payments to New Jersey residents. Specifically, benefits such as family leave and disability insurance payments are paid to residents by transferring funds to pre-loaded debit cards that are sent to beneficiaries via U.S. mail. New Jersey residents rely on some of these benefits payments to provide for essential needs like food, housing, medications, and utility services.
173. In San Francisco, the Department of Child Support Services (“CSS”) is heavily reliant on the U.S. Postal Service to successfully discharge its duties. For example, child support summons, complaints, orders, and modification requests must be in writing and transmitted through mail. Instructions about how to properly submit support are also announced via mail.
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Orders and notices that are not provided in writing could be legally ineffective. 174. Furthermore, timely delivery of mail is critical due to statutory or court deadlines.
For example, the failure to respond to summonses and complaints could lead to issuance of a bench warrant, and penalties and interest could be imposed on noncustodial parents for support payments that are timely mailed but delivered late. Delivery delays will further result in the diversion of resources to answer client questions, resolve confusion, and ensure that repercussions for late filings or support payments are not wrongly imposed.
175. In addition, child support payments to needy children and families could be delayed if the mail is not punctual. If a child or family does not timely receive the support to which they are entitled, CSS will be burdened with attempting to resolve the matter and enforcing the support order. Such delays can have detrimental effects on the populations that CSS serves, which are predominantly lower income and people of color.
176. The COVID-19 pandemic has created huge burdens for CSS and has made it even more reliant on mail. Due to the economic downturn, CSS is seeing a massive increase in the number of support modification requests. Because CSS’s physical office is currently closed, all of its operations (including serving approximately 500 walk-in clients per year) now, must be conducted entirely by mail.
177. CSS is taking concrete steps to mitigate the harmful effects of mail delays on CSS. CSS will need to increase or redirect staff hours to address problems created by the delays, including setting up additional phone lines to provide case status updates or confirmations regarding the receipt and processing of critical legal documents to clients.
178. CSS is also planning an informational outreach campaign via postcards to inform clients about potential mail delays and to advise them of the need to plan ahead when mailing
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materials. CSS has also engaged a vendor to generate automated telephone calls and text messages to advise clients to mail all documents earlier than usual and to expect delays.
179. CSS anticipates that it will need three additional fulltime caseworkers to handle the additional work that will result from delays in the mail, including answering client inquiries about the status of cases and receipt of documents or resolving disputes regarding the timeliness of support payments.
180. CSS anticipates it will need to spend or redirect approximately $500,000 to implement the foregoing measures—steps that are being taken directly in response to the U.S. Postal Service delays that are ongoing and anticipated.
181. The San Francisco Office of the Treasurer and Tax Collector (“the Treasurer’s Office” or “the Office”) also informs taxpayers of certain tax obligations by mail. Because the consequences for failing to pay taxes on time include significant penalties and interest, it is critical that bills sent by the Office are delivered in a timely fashion to taxpayers so that they are on notice regarding what they owe and have sufficient opportunity to pay on time. If tax notices are not timely received due to mail delays, that could lead to confusion or disagreement with the taxpayer about the amount owed, which would require time and resources from the Office to resolve. Furthermore, delayed notices lead to delayed payments, which deprive the City of funds needed for its operations, as well as money that could have grown by being invested.
182. Before the COVID-19 pandemic occurred, the Treasurer’s Office already relied on the U.S. Postal Service to send out approximately 1.7 million tax notices. Since the pandemic, the Treasurer’s Office has become even more reliant on the U.S. Postal Service because the Office has had to increase its mailings leading up to significant tax deadlines because the Office is closed for in-person operations. For example, a county tax that will soon
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be due will require that notices be sent to approximately 20,000 taxpayers that collectively owe approximately $200 million. Delayed receipt of notices of obligation may lead to late payments and associated penalties and fees or, worse, no payment, which then requires collection action. Loss of this revenue undermines San Francisco’s mission to safeguard its funds and to serve the City’s residents.
183. Similarly, the Treasurer’s Office depends on the U.S. Postal Service to expeditiously transmit mail addressed to it, most of which are tax payments. Indeed, most tax payments are sent to us by mail. The Treasurer’s Office is obligated to immediately deposit payments remitted to it: nearly 99 percent of payments are deposited on the same day they are received. This is so that San Francisco can accrue interest on the overnight funds, which generates a significant amount of income for the City. Even assuming a very conservative interest rate, San Francisco can realize a gain of $26 for every $100,000 deposited. Thus, every day that a payment to our office is delayed by mail equates to money lost.
184. Employees in the Office have reported increasing instances of mail delays and problems at the U.S. Postal Service. For example, the Office tracks mail that has been sent and returned to it. It has noticed that more mail returned to the Office is increasingly delayed, frequently by more than five days, thus hindering it from timely notifying taxpayers about what they owe and resulting in delayed payments.
185. In addition, delayed notices to taxpayers could result in late tax payments, which incur penalties and interest, which in turn lead those taxpayers to protest the penalties and interest, which requires additional staff hours and resources to process and adjudicate. To compound the cost of mail delays, as explained earlier, the failure to timely receive tax payments results in significant investment losses.
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186. The Postal Policy Changes and the resulting delays are significantly concerning for the Treasurer’s Office due to negative effects on the Office’s operations, including the need to divert or expend additional resources to counteract the consequences of the delays. These include sending out guidance to encourage taxpayers to submit their payments early to avoid incurring penalties and interest. The Office may also need to invest in enhancing means for payments to be made online, including informational and educational campaigns to promote online payment. Again, late mail will also require more staff hours to address taxpayer concerns, adjudicate waiver claims for late fees, and audits of postmarks.
187. Mail remains the primary method by which the Treasurer’s Office and taxpayers communicate with each other due to the stark divide between those who have digital access and those who do not. A significant proportion of people who rely on mail to receive information from the Office and pay their tax bills are people of color, low income, and/or elderly. These are people who especially cannot afford to have penalties and interest imposed on them following delays in the mail.
188. The Treasurer’s Office is particularly concerned about an upcoming property tax collection period which begins in October 2020 and ends December 2020, a period which overlaps with the 2020 November election. If mail is delayed due to the election, the Office and San Francisco will incur significant losses due to the unrealized interest the Office could have otherwise obtained. Furthermore, staffing may have to increase to examine postmarks, address customer complaints, and evaluate tax waivers.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (Ultra Vires Agency Action—Postal Accountability and Enhancement Act) 189. Plaintiffs incorporate by reference the allegations set forth in each of the
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preceding paragraphs of this Complaint. 190. The PAEA requires the U.S. Postal Service to seek an advisory opinion from the
Postal Regulatory Commission at a reasonable time prior to implementing substantially nationwide changes in service. 39 U.S.C. § 3661.
191. Despite the law’s clear command, the U.S. Postal Service has implemented nationwide changes without seeking an advisory opinion.
192. The U.S. Postal Service’s abrupt actions are therefore ultra vires. The agency’s changes to its operations should therefore be declared unlawful and enjoined.
193. Defendants’ violation causes ongoing harm to Plaintiff States and their residents. SECOND CLAIM FOR RELIEF
(Ultra Vires Agency Action—Postal Reorganization Act) 194. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 195. The PRA requires the U.S. Postal Service to comply with specific service requirements when designing, planning, and providing postal services in accordance with the agency’s central obligations. 39 U.S.C. § 101. 196. By ignoring its obligation to give the highest consideration to the convenience and efficiency of processing, transporting, and delivering important letter mail, the U.S. Postal Service has acted ultra vires. 197. The PRA also requires the U.S. Postal Service to provide ready access to postal services to the entire population of the United States. 39 U.S.C. § 403. 198. By eliminating ready access to postal services to certain populations, the U.S. Postal Service has acted ultra vires. 199. Defendants’ violation causes ongoing harm to Plaintiff States and their residents.
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THIRD CLAIM FOR RELIEF (U.S. Constitution article I, section 4, clause 1) 200. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 201. The Elections Clause of the Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” U.S. Const. art. I, § 4, cl. 1. 202. The Elections Clause grants to the States “broad power” to regulate the procedural mechanisms for congressional elections. Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986). 203. The State Plaintiffs have exercised that power by establishing procedures for the transmission and return of ballots by mail for primary and general congressional elections, including the general election on November 3, 2020. 204. The President has repeatedly and publicly opposed mail-in voting and has expressly stated his opposition to providing additional resources to the U.S. Postal Service, with the intent of impairing the delivery of mailed ballots otherwise authorized by state law. 205. Defendants’ actions will hinder the delivery of mail ballots and ballot applications, and thereby undermine the States’ constitutionally-delegated role to regulate congressional elections in violation of the Elections Clause. 206. Defendants’ violation causes ongoing harm to the State Plaintiffs and their residents.
PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that this Court:
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1. Issue an order holding unlawful, vacating, and setting aside the Postal Policy Changes;
2. Declare that the Postal Policy Changes are ultra vires because they are not authorized by and conflict with Congress’s clear statutory mandates to the U.S. Postal Service;
3. Declare that the Postal Policy Changes are unconstitutional; 4. Enjoin Defendants and all their officers, employees, and agents, and anyone acting in concert with them, from implementing, applying, or taking any action whatsoever to further the Postal Policy Changes; 5. Enjoin Defendants from implementing any substantially nationwide changes in service without first seeking an advisory opinion from the Postal Regulatory Commission; 6. Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees; and 7. Grant such other and further relief as the Court deems just and proper. DATED: August 25, 2020 Respectfully submitted,
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LETITIA JAMES Attorney General of the State of New York
By: /s/ Matthew Colangelo Matthew Colangelo (D.C. Bar No. 997893)
Chief Counsel for Federal Initiatives Daniela Nogueira,* Assistant Attorney General Morenike Fajana,* Special Counsel Lindsay McKenzie,* Assistant Attorney General Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 Phone: (212) 416-6057 Matthew.Colangelo@ag.ny.gov
Attorneys for the State of New York

CLARE E. CONNORS Attorney General of the State of Hawaii
By: /s/ Lori N. Tanigawa Lori N. Tanigawa*
Deputy Attorney General Department of the Attorney General State of Hawaii 425 Queen Street Honolulu, HI 96813 (808) 586-0618 lori.n.tanigawa@hawaii.gov
Attorneys for the State of Hawaii

GURBIR S. GREWAL Attorney General of New Jersey
MAYUR P. SAXENA Assistant Attorney General
By: /s/ Tim Sheehan TIM SHEEHAN* Deputy Attorney General New Jersey Attorney General’s Office Richard J. Hughes Justice Complex 25 Market Street Trenton, New Jersey 08625 (609) 815-2604 Tim.Sheehan@law.njoag.gov
Attorneys for Plaintiff State of New Jersey

JAMES E. JOHNSON Corporation Counsel of the City of New York
By: /s/ Aaron Bloom Aaron Bloom* Joseph Pepe Tonya Jenerette 100 Church Street New York, NY 10007 abloom@law.nyc.gov Tel. (212) 356-2274
Attorneys for Plaintiff City of New York

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DENNIS J. HERRERA City Attorney for the City and County of San Francisco By: /s/ Dennis J. Herrera Dennis J. Herrera,* City Attorney Jesse C. Smith, Chief Assistant City Attorney Ronald P. Flynn, Chief Deputy City Attorney Yvonne R. Meré, Chief of Complex and Affirmative Litigation Sara J. Eisenberg, Deputy City Attorney Kevin Yeh,* Deputy City Attorney San Francisco City Attorney’s Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 Kevin.Yeh@sfcityatty.org Tel. (415) 554-3856 Fax (415) 437-4644 Attorneys for Plaintiff City and County of San Francisco
* Registration or pro hac vice forthcoming.
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 Case 1:20-cv-02340-EGS Document 48 Filed 09/22/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF NEW YORK, et al., Plaintiffs,
v. DONALD J. TRUMP, in his official capacity as President of the United States, et al.
Defendants.

No. 1:20-cv-2340-EGS

BRIEF OF U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE IN SUPPORT OF THE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-02340-EGS Document 48 Filed 09/22/20 Page 2 of 18
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... ii INTRODUCTION AND STATEMENT OF INTEREST ............................................................. 1 ARGUMENT ................................................................................................................................. 2
I. CONGRESS ESTABLISHED AND REFORMED THE UNITED STATES POSTAL SERVICE TO ENSURE A CONNECTED, INFORMED NATION. ......................................................................................... 2 A. Congress Created the United States Post Office, the Forerunner to the Modern-Day Postal Service, in Part to Provide Critical Infrastructure for Connecting and Informing the Electorate...................... 2 B. The Postmaster General’s Service Rollbacks Undermine the Postal Service’s Operations and Contravene Congressional Intent...................... 4
II. CONGRESS HAS LONG RECOGNIZED THAT FREE AND FAIR ELECTIONS DEPEND UPON RELIABLE MAIL SERVICE. ........................... 7 A. Congress Has Repeatedly Legislated to Secure and Enhance the Fundamental Right to Vote Through the Use of the Mail. ........................ 7 B. A Reliable Postal Service Is Essential to a Free and Fair Electoral Process. .................................................................................................... 10 C. The Postal Service’s Recent Changes Threaten Participation in, and the Integrity of, the Upcoming Election............................................ 11
CONCLUSION............................................................................................................................ 12
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TABLE OF AUTHORITIES
Page(s)
Cases
MacDougall v. Green, 335 U.S. 281 (1948).................................................................................................................12
McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003).....................................................................................................................7
Rowan v. U.S. Post Office Dep’t, 397 U.S. 728 (1970)...................................................................................................................3
United States v. Slone, 411 F.3d 643 (6th Cir. 2005) .....................................................................................................7
Constitution, Statutes, and Legislative Materials
U.S. Const. Amend. XIV...............................................................................................................................7 Amend. XV ................................................................................................................................7 Amend. XIX...............................................................................................................................7 Amend. XXIV............................................................................................................................7 Amend. XXVI............................................................................................................................7 Art. I, § 4, cl. 1 ...........................................................................................................................7 Art. I, § 8, cl. 7 ...........................................................................................................................2
39 U.S.C. § 101(a) ......................................................................................................................................4 § 3406(a) ....................................................................................................................................9 § 3661(b) ....................................................................................................................................4 § 3661(c) ....................................................................................................................................4
52 U.S.C. § 10502(a) ..................................................................................................................................9 § 10502(d) ..................................................................................................................................9 § 20302(a)(1) .............................................................................................................................8 § 20501(b)(1) ...........................................................................................................................10 § 20505.....................................................................................................................................10
Act of Feb. 20, 1792 (Postal Service Act), ch. 7, 1 Stat. 232 § 1...................................................................................................................3
Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719 ...............................................................................................4
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H. Rep. No. 9, 103d Cong. (1st Sess. 1993) ..................................................................................10
H. Rep. No. 765, 99th Cong. (2d Sess. 1986) ..................................................................................8
H. Rep. No. 1104, 91st Cong. (2d Sess. 1970) ................................................................................4
Rules of the U.S. House of Representatives (116th Cong.), Rule II.8(b), https://perma.cc/M25F-496H................................................................................1
Other Authorities
Boyd A. Martin, The Service Vote in the Elections of 1944, 39 Am. Pol. Sci. Rev. 720 (1945) ..........................................................................................7, 8
Department of Justice Archives, The MOVE Act (Oct. 21, 2010), https://perma.cc/9NNU-VHNB .................................................................................................9
Erin Cox et al., Postal Service Warns 46 States Their Voters Could Be Disenfranchised by Delayed Mail-In Ballots, Washington Post (Aug. 14, 2020), https://perma.cc/5WEL-692T.............................................1
George Washington, Third Annual Message to Congress (Oct. 25, 1791), https://perma.cc/4FV4-2E5E .....................................................................................................3
House Committee on Oversight and Reform, DeJoy Admits that Mail Delays Are Far Worse than Expected, But Fails to Take Responsibility (Aug. 24, 2020), https://perma.cc/XQ73-Q7SZ ....................................................................................................5
House Committee on Oversight and Reform, Oversight Committee to Issue Subpoena to DeJoy (Aug. 31, 2020), https://perma.cc/M62Y-3XBA .......................................5
James Madison, Notes on Debates, 6 December 1782, Founders Online, National Archives, https://perma.cc/8P7H-BSWS .......................................2
Juliette Love et al., Where Americans Can Vote by Mail in the 2020 Elections, New York Times (Aug. 14, 2020), https://perma.cc/T67Z-MS6M .........................................11
Louis DeJoy, Letter to Committee on Homeland Security and Governmental Affairs and Committee on Oversight and Reform, dated August 31, 2020 https://perma.cc/VDR9-6P43 .....................................................................................................5
Miles Parks, Why Is Voting By Mail (Suddenly) Controversial?, NPR (June 4, 2020), https://perma.cc/TT44-AYG7.......................................................................................10
National Association of Secretaries of States, Letter to Postmaster General DeJoy, dated August 7, 2020, https://perma.cc/5YH8-8BQQ .............................................................12
National Conference of State Legislatures, Receipt and Postmark Deadlines for Absentee Ballots (Aug. 17, 2020), https://perma.cc/L9VV-EHVA...........................................6
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Postal Times, PMG Addresses Restructuring (Aug. 13, 2020), https://perma.cc/LUC2-FUGN...................................................................................................1
Richard B. Kielbowicz, Preserving Universal Postal Service As A Communication Safety Net: A Policy History and Proposal, 30 Seton Hall Legis. J. 383 (2006) ...................................................................................................................3
Remarks in the Capitol Rotunda at the Signing of the Voting Rights Act, 2 Pub. Papers 841 (Aug. 6, 1965) .........................................................................................................9
Royce Crocker, The National Voter Registration Act of 1993: History, Implementation, and Effects, CRS Report For Congress 7-5700 (Sept. 18, 2013), https://perma.cc/GB77-XFF6.......................................................................10
The Federalist No. 84 (Alexander Hamilton), https://perma.cc/6UHW-QG6A ..............................2 U.S. Election Assistance Commission, 2016 Comprehensive Report (June 2017),
https://perma.cc/L3KZ-HS75.....................................................................................................9 U.S. Election Assistance Commission, 2018 Comprehensive Report (June 2019),
https://perma.cc/G66L-W2K2 .................................................................................................10 U.S. Election Assistance Commission, Post Office and Election Office, Critical
Partners in Democracy (May 9, 2019), https://perma.cc/2MQJ-3XDD .................................11 United States Postal Service, Congressional Briefing: Transportation & Service
Performance Updates (Aug. 31, 2020), https://perma.cc/2VD4-6AHX ...................................5 USPS OIG, 20-225-R20, Audit Report: Processing Readiness of Election and
Political Mail During the 2020 General Elections (Aug. 31, 2020) https://perma.cc/Z2Q9-TYU6 ................................................................................................5, 6 USPS OIG, MS-AR-13-008, Audit Report: Political & Election Mail Sales, Audit Report (June 19, 2013), https://perma.cc/D78Z-6YNL ...........................................................11 USPS OIG, 19XG010NO000-R20, Audit Report: Service Performance of Election and Political Mail During the 2018 Midterm and Special Elections (Nov. 4, 2019), https://perma.cc/FQR8-L5AE.......................................................................................11 USPS Postal Bulletin 22342, https://perma.cc/2WTH-3P5S.........................................................11
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INTRODUCTION AND STATEMENT OF INTEREST Amicus curiae, the United States House of Representatives, has a special interest in this case, which challenges service rollbacks by the United States Postal Service in advance of the upcoming national election.1 Since June 2020, the Postal Service has abruptly eliminated or substantially altered multiple operational policies and practices essential to the timely delivery of mail. The Postmaster General has described these changes as “transformative.” Postal Times, PMG Addresses Restructuring (Aug. 13, 2020).2 Key rollbacks include removing hundreds of collection boxes and high-speed sorting machines, cutting or curtailing overtime for postal workers, and prohibiting postal workers from making extra or late trips to complete deliveries. These changes have created dramatic delays in mail delivery. See Erin Cox et al., Postal Service Warns 46 States Their Voters Could Be Disenfranchised by Delayed Mail-In Ballots, Washington Post (Aug. 14, 2020).3 Congress established and oversees the Postal Service, and has enacted various statutes to, among other benefits, secure and protect the right to vote, which in today’s world depends upon a properly functioning postal system. The House is well-suited to describe how the Postmaster General’s recent changes run contrary to centuries-old principles underlying the Postal Service’s
1 The Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives, which “speaks for, and articulates the institutional position of, the House in all litigation matters,” has authorized the filing of an amicus brief in this matter. Rules of the U.S. House of Representatives (116th Cong.), Rule II.8(b), https://perma.cc/M25F-496H. The BLAG comprises the Honorable Nancy Pelosi, Speaker of the House, the Honorable Steny H. Hoyer, Majority Leader, the Honorable James E. Clyburn, Majority Whip, the Honorable Kevin McCarthy, Republican Leader, and the Honorable Steve Scalise, Republican Whip. Representative McCarthy and Representative Scalise dissented.
2 https://perma.cc/LUC2-FUGN. 3 https://perma.cc/5WEL-692T.
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operation, and how those changes undermine Congressional efforts to secure fair and accurate elections.
ARGUMENT I. CONGRESS ESTABLISHED AND REFORMED THE UNITED STATES POSTAL
SERVICE TO ENSURE A CONNECTED, INFORMED NATION. A. Congress Created the United States Post Office, the Forerunner to the
Modern-Day Postal Service, in Part to Provide Critical Infrastructure for Connecting and Informing the Electorate. Article I of the Constitution entrusts to Congress, as one of its enumerated powers, the authority “[t]o establish Post Offices and post Roads.” U.S. Const., art. I, § 8, cl. 7 (the “Postal Power”). The Founders provided the Postal Power to Congress cognizant that, in the words of Alexander Hamilton, “citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance.” The Federalist No. 84 (Alexander Hamilton).4 This shared interest operates with particular force in the context of the upcoming election, which is expected to depend on the mail to an unprecedented extent to determine the outcomes of local and national contests. As Hamilton stated, a well-functioning “expeditious” post office is essential to ensure that informed citizens can “sound the alarm when necessary” and “point out the actors in any pernicious project.” Id. James Madison likewise recognized that a national postal service would be the “principal channel through which a general knowledge of public affairs[] was diffused.” James Madison, Notes on Debates, 6 December 1782, Founders Online, National Archives.5 And George Washington urged Congress to establish a postal service because, as he explained, it would be an “instrumentality in diffusing a knowledge of the laws and proceedings of the government [among
4 https://perma.cc/6UHW-QG6A. 5 https://perma.cc/8P7H-BSWS.
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citizens], which … serves also to guard them against the effects of misrepresentation and misconception.” George Washington, Third Annual Message to Congress (Oct. 25, 1791).6 Recent USPS actions endanger citizens’ ability to participate in those “public affairs” and “proceedings of the Government” by threatening to impede their fundamental right to vote.
These developments contravene and undermine one of the very purposes for which Congress created the postal system. Congress exercised the Postal Power when it adopted the Postal Service Act of 1792, which created the United States Post Office Department. The Act outlined in extensive detail the “roads [to] be established as post roads,” stretching from Maine to Georgia in a network of arteries and veins that would connect the nation. Act of Feb. 20, 1792 (Postal Service Act), ch. 7, 1 Stat. 232 § 1.
As the nation expanded, Congress continued to play a significant role with detailed legislation that shaped the corresponding growth of the postal service. See, e.g., Richard B. Kielbowicz, Preserving Universal Postal Service As A Communication Safety Net: A Policy History and Proposal, 30 Seton Hall Legis. J. 383, 394 (2006) (noting that from 1792 “until the closing of the frontier in the late 1800s, Congress required the Post Office to inaugurate service on new routes that lawmakers delineated in excruciatingly detailed postal acts”).
In modern times, through World Wars and great social and economic change, the Post Office has remained an “indispensable adjunct of … civilized society” facilitating the interpersonal “communication … imperative to a healthy social order.” Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 736 (1970). In the latter half of the twentieth century, to continue fulfilling this essential mission, the Post Office needed systemic modernization. Accordingly, in 1970, Congress passed the Postal Reorganization Act (“PRA”), converting the Cabinet-agency Post Office into an
6 https://perma.cc/4FV4-2E5E.
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independent agency within the Executive Branch—the present-day Postal Service—which was intended to “free[]” postal operations “from direct political pressures,” H. Rep. No. 1104, 91st Cong. (2d Sess. 1970); see Pub. L. No. 91-375, 84 Stat. 719.
In effectuating this transformation, the PRA reaffirmed the Postal Service’s “basic function” of “provid[ing] postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people.” 39 U.S.C. § 101(a). Far from condoning service rollbacks in the name of purported modernization, the PRA provided that the Postal Service would ensure “prompt, reliable, and efficient services to patrons in all areas … [and] all communities.” Id. To accomplish these goals, the PRA placed substantive limits on the Postal Service’s authority to implement unilateral transformative changes by requiring the Postal Service to request “an advisory opinion” from the Postal Regulatory Commission—also established by the PRA as an independent agency in the Executive Branch—on any changes “which will generally affect service on a nationwide or substantially nationwide basis.” 39 U.S.C. § 3661(b). The Commission may not issue such an opinion until users of the mail have been afforded an opportunity to present their views at a hearing. Id. § 3661(c).
B. The Postmaster General’s Service Rollbacks Undermine the Postal Service’s Operations and Contravene Congressional Intent.
As part of its constitutional prerogative and to inform potential legislation, Congress actively monitors and investigates the Postal Service. This is essential for Congress to remain “fully informed on postal affairs so that it may discharge its responsibilities to see to it that the Postal Service is conducted consistently with” Congressional intent. H. Rep. No. 1104, 91st Cong. (2d Sess. 1970) (noting that Congress must set the “policy guidelines for the operations of the Postal Service”).
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Pursuant to Congress’s oversight authority, the House Committee on Oversight and Reform recently issued a subpoena for documents related to, and held a hearing about, Postmaster General Louis DeJoy’s service rollbacks.7 The House’s investigation has uncovered disturbing evidence that Mr. DeJoy’s recent maneuvers are causing substantial systemic mail delivery delays.
For example, on August 31, 2020, in response to inquiries from the House Committee on Oversight and Reform, the Postal Service released jarring statistics revealing that delivery metrics have, in the weeks since Mr. DeJoy’s “transformative” changes, fallen substantially for First-Class and Marketing Mail—the classes that include election ballots and other election-related mail. United States Postal Service, Congressional Briefing: Transportation & Service Performance Updates (Aug. 31, 2020) (“August 31 Congressional Briefing”).8 For example, overall service performance for presorted First-Class Mail dropped nearly ten percent following Mr. DeJoy’s changes—in just a matter of weeks—and even after his purported delay of further rollbacks, performance for presorted First-Class Mail remains over five percent lower than prior to his actions. Id. at 9.
Also on August 31, 2020, the Postal Service’s Office of Inspector General (“OIG”) released an audit report demonstrating the challenges already faced by the Postal Service with respect to election-related mail even prior to Mr. DeJoy’s rollbacks. USPS OIG, 20-225-R20, Audit Report: Processing Readiness of Election and Political Mail During the 2020 General Elections (Aug. 31,
7 See, e.g., House Committee on Oversight and Reform, DeJoy Admits that Mail Delays Are Far Worse than Expected, But Fails to Take Responsibility (Aug. 24, 2020), https://perma.cc/XQ73-Q7SZ; House Committee on Oversight and Reform, Oversight Committee to Issue Subpoena to DeJoy (Aug. 31, 2020), https://perma.cc/M62Y-3XBA.
8 https://perma.cc/2VD4-6AHX; see Louis DeJoy, Letter to Committee on Homeland Security and Governmental Affairs and Committee on Oversight and Reform, dated August 31, 2020, at 1 (First-Class and Marketing Mail includes ballots and election-related mail), https://perma.cc/VDR9-6P43.
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2020) (“August 2020 OIG Report”).9 Given these extant challenges, Mr. DeJoy’s rollbacks are all the more dangerous.
The Postal Service’s experience handling ballots for state and local elections and primaries earlier this year specifically demonstrates these preexisting challenges. See August 2020 OIG Report at 3 (reporting that the amount of election and political mail delivered on time decreased nearly two percent compared to 2018). Against this backdrop, Mr. DeJoy’s rollbacks are particularly perilous, as the existing challenges with the distribution of election-related mail are likely only to multiply in November because the general and Presidential elections historically generate far larger turnout than these earlier contests. This November, with the nation in the grips of a pandemic and many Americans fearful of gathering with strangers in indoor polling places, much of that increased turnout will depend on the success of the postal system.
As the August 2020 OIG Report recognizes, “[t]he Postal Service plays a vital role in the American democratic process and this role continues to grow as the volume of Election and Political Mail increases.” Id. at 1. The August 2020 OIG Report revealed that, in the seven Postal Service facilities audited by OIG, approximately eight percent of “identifiable Election and Political Mail mailpieces [were] not delivered on time from April 2020 through June 2020,” amounting to 1.6 million total untimely deliveries of election-related mail in that three-month period. Id. at 3. The facilities’ overall performance score decreased markedly from prior years, id., a downward trend that has only worsened since Mr. DeJoy assumed his position. See, e.g., August 31 Congressional Briefing. Such delays in delivery pose an unacceptable and unmitigated risk for the upcoming election, particularly because 29 states count only those ballots received by Election Day, regardless of when they are postmarked. See, e.g., National Conference of State
9 https://perma.cc/Z2Q9-TYU6.
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Legislatures, Receipt and Postmark Deadlines for Absentee Ballots (Aug. 17, 2020).10 Given the rapidly approaching November election, now is the time to, in Hamilton’s words, “sound the alarm.” II. CONGRESS HAS LONG RECOGNIZED THAT FREE AND FAIR ELECTIONS
DEPEND UPON RELIABLE MAIL SERVICE. A. Congress Has Repeatedly Legislated to Secure and Enhance the Fundamental
Right to Vote Through the Use of the Mail. The Elections Clause, U.S. Const., art. I, § 4, cl. 1, empowers Congress “to protect the integrity of federal elections.” United States v. Slone, 411 F.3d 643, 649 (6th Cir. 2005) (citing McConnell v. Federal Election Comm’n, 540 U.S. 93, 187 (2003)). The Constitution also grants Congress broad authority to enact legislation to ensure that all citizens enjoy the right to vote equally and free from discrimination. See U.S. Const. amends. XIV, XV, XIX, XXIV, XXVI. Pursuant to these constitutional powers, Congress has enacted numerous laws that promote and protect the right to vote through use of the mail, including laws that provide absentee ballots to military and civilian service members stationed overseas; provisions of the Voting Rights Act (“VRA”); and the National Voter Registration Act of 1993 (“NVRA”). Through each of these Acts, Congress has increased access to absentee ballots and mail-in voter registration. As reflected by these enactments, Congress views a well-functioning Postal Service as essential to securing Americans’ fundamental right to vote. Soldier Voting Acts. Legislatures have long recognized the importance of preserving service members’ right to vote: during the Civil War, some states coordinated commissions to “record votes [of soldiers] in the field or for absentee voting.” Boyd A. Martin, The Service Vote in the Elections of 1944, 39 Am. Pol. Sci. Rev. 720, 720 (1945). Still, prior to World War II,
10 https://perma.cc/L9VV-EHVA.
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service members stationed overseas who sought to vote were required to do so pursuant to the myriad requirements of state laws, which were not designed to facilitate overseas voting. Id. at 724. Some states prohibited absentee voting altogether, and others imposed onerous requirements, such as requiring that ballots be mailed within the boundaries of the state. Id. Such state laws had, for example, disenfranchised millions of Americans serving in World War I. Id.
Two decades later, with 5.5 million Americans mobilized for World War II, the public demanded that Congress take action for “service personnel to be given the privilege of voting.” Id. at 724. Congress thus adopted the 1942 Soldier Voting Act “to overcome the[] difficulties, differences, and the inevitable inequities arising” from varying state laws and other obstacles. Id. at 724–25. Two years later, Congress amended the 1942 Soldier Voting Act to expand the franchise further; that year, “approximately 4,400,000 federal and state absentee ballots were cast by service personnel.” Id. at 730, 732. The difficulties, differences, and inequities caused by Mr. DeJoy’s service cutbacks contradict longstanding Congressional intent to rely on the mail to protect voters’ rights.
Congress repeatedly demonstrated, and acted upon, that intent in the decades that followed. For example, Congress responded when new problems arose for military and overseas voters attempting to vote in the 1984 election. Thousands had been disenfranchised “simply because their ballots arrived either too late or not at all.” H. Rep. No. 765, 99th Cong. (2d Sess. 1986) at 10–13. Shortly thereafter, in 1986, Congress responded by passing the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”). Through that enactment, Congress guaranteed that active duty service members, their dependents, and other United States citizens residing overseas have the right “to vote by absentee ballot in general, special, primary, and runoff elections for Federal office.” 52 U.S.C. § 20302(a)(1). Congress further strengthened UOCAVA’s guarantees
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in 2009 by passing the Military and Overseas Voter Empowerment Act, which “expanded [UOCAVA] significantly … to provide greater protections for servicemembers, their families and other overseas citizens.” Department of Justice Archives, The MOVE Act (Oct. 21, 2010).11
UOCAVA requires states to use the Postal Service to transmit validly requested ballots to eligible voters at least 45 days before a federal election, and mandates that balloting materials be “carried expeditiously and free of postage.” 39 U.S.C. § 3406(a). In the last Presidential election, voters returned over 630,000 ballots pursuant to this statute. U.S. Election Assistance Commission (EAC), 2016 Comprehensive Report, at 12 (June 2017) (“2016 EAC Report”).12
Voting Rights Act. Congress passed the VRA—hailed by President Lyndon Johnson as “one of the most monumental laws in the entire history of America”—to enshrine every citizen’s right to an equal opportunity to participate in our democracy. Remarks in the Capitol Rotunda at the Signing of the Voting Rights Act, 2 Pub. Papers 841 (Aug. 6, 1965). Recognizing that “the lack of sufficient opportunities” for absentee registration and balloting abridged “the inherent constitutional right” to vote, Congress amended the VRA in 1970 to ensure that all qualified voters, regardless of where they might be on election day, have the opportunity to vote in Presidential elections. 52 U.S.C. § 10502(a) (Congressional findings). The 1970 VRA amendments ordered states to provide absentee ballots in Presidential elections to all qualified residents who expect to be absent from their districts on Election Day and who apply for a ballot at least seven days before the election. 52 U.S.C. § 10502(d). In the last Presidential election, twenty-three percent of all ballots cast were through the mail. 2016 EAC Report at 10.
11 https://perma.cc/9NNU-VHNB. 12 https://perma.cc/L3KZ-HS75.
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National Voter Registration Act. In 1993, Congress passed the NVRA to “increase the number of eligible citizens who register to vote in elections for Federal office.” 52 U.S.C. § 20501(b)(1). The NVRA reflects Congress’s view that the mail is a “key element” essential to increasing voter registration. H. Rep. No. 9, 103d Cong. at 3 (1st Sess. 1993). The Act requires states to provide for registration by mail and to set a voter registration cutoff for federal elections of no more than 30 days before the election. 52 U.S.C. § 20505. By 2013, twenty years after the NVRA’s enactment, voter registration had increased nationally by seven percent. Royce Crocker, The National Voter Registration Act of 1993: History, Implementation, and Effects, CRS Report For Congress R40609 (Sept. 18, 2013).13 Mail-in registration continues to play a vital role. EAC, 2018 Comprehensive Report, at 35 (June 2019) (“2018 EAC Report”) (noting by-mail applications account for eleven percent of registration applications).14
The Postal Service rollbacks challenged in this litigation cause delays—and thus exacerbate the likelihood of potential disenfranchisement—at every stage in the process, from application, to registration, to the citizen’s ultimate vote. Such measures impede Congress’s goal of securing each citizen’s right to vote as reflected in the legislation described above.
B. A Reliable Postal Service Is Essential to a Free and Fair Electoral Process. Registering to vote and voting by mail—including as contemplated by these various Congressional enactments—depend on a properly functioning and apolitical Postal Service. All 50 states and the District of Columbia have some form of vote-by-mail procedure. Miles Parks, Why Is Voting By Mail (Suddenly) Controversial?, NPR (June 4, 2020).15 Over the past 20 years, Americans nationwide have cast more than 250 million ballots by mail. Id. In the last federal
13 https://perma.cc/GB77-XFF6. 14 https://perma.cc/G66L-W2K2. 15 https://perma.cc/TT44-AYG7.
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election, more than 31 million Americans voted by mail, over a quarter of all voters. 2018 EAC Report at 12. Because these ballots are delivered by the Postal Service, the agency is charged with a critical role in the electoral process—ensuring that “every eligible voter is able to cast their ballot.” EAC, Post Office and Election Office, Critical Partners in Democracy (May 9, 2019).16
In recognition of its “vital role in the American democratic process,” the Postal Service has long embraced policies and procedures to facilitate the prompt and reliable delivery of election mail. USPS OIG, MS-AR-13-008, Audit Report: Political & Election Mail Sales (June 19, 2013).17 For example, in the 2018 Midterm and Special Elections, the Postal Service committed to treating all election mail as First-Class mail or better, developed an official election mail logo to help distinguish it from other types of mail, and trained employees on the proper handling of election mail. USPS OIG, 19XG010NO000-R20, Audit Report: Service Performance of Election and Political Mail During the 2018 Midterm and Special Elections, at 7 (Nov. 4, 2019);18 USPS Postal Bulletin 22342.19
C. The Postal Service’s Recent Changes Threaten Participation in, and the Integrity of, the Upcoming Election.
Due to the COVID-19 pandemic, the Postal Service will play an even greater role in the election process. So far, 27 states and the District of Columbia have expanded voter access to mail ballots. Juliette Love et al., Where Americans Can Vote by Mail in the 2020 Elections, New York Times (Aug. 14, 2020).20 All told, an unprecedented seventy-five percent of Americans are now eligible to vote by mail. Id. Those jurisdictions—and the voters within those jurisdictions—rely
16 https://perma.cc/2MQJ-3XDD. 17 https://perma.cc/D78Z-6YNL. 18 https://perma.cc/FQR8-L5AE. 19 https://perma.cc/2WTH-3P5S. 20 https://perma.cc/T67Z-MS6M.
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on the Postal Service as a “partner in administering” successful elections. National Association of Secretaries of States, Letter to Postmaster General DeJoy, dated August 7, 2020.21 To the extent the Postal Service cannot fully serve as that partner because of Mr. DeJoy’s destructive and transformative operational changes, the integrity of the November election is imperiled.
“Free and honest elections are the very foundation of our republican form of government.” MacDougall v. Green, 335 U.S. 281, 288 (1948) (Douglas, J., dissenting). Today, as during the Civil War and World War II, America faces a sudden surge of citizens who will rely on absentee ballots. Congress has already provided for mechanisms to protect the right to vote in such extreme circumstances, including by establishing and maintaining the Postal Service, adopting laws that endorse and facilitate voting by mail, and overseeing the Postal Service’s operations. Mr. DeJoy’s changes undermine these enactments and threaten the integrity of the upcoming election. They should be enjoined.
CONCLUSION For the reasons stated above, the House submits this brief in support of the Plaintiffs.
21 https://perma.cc/5YH8-8BQQ.
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KATHLEEN R. HARTNETT COOLEY LLP 101 California Street San Francisco, CA 94111 (415) 693-2000 khartnett@cooley.com
ELIZABETH B. PRELOGAR ELIAS S. KIM COOLEY LLP 1299 Pennsylvania Ave. NW Washington, DC 20004 (202) 842-7800 eprelogar@cooley.com
ADAM S. GERSHENSON LIZ A. TRAFTON ZACHARY SISKO COOLEY LLP 500 Bolyston St Boston, MA 02116 (617) 937-2300 agershenson@cooley.com
BARRETT J. ANDERSON COOLEY LLP 4401 Eastgate Mall San Diego, CA 92121-1909 (858) 550-6000 banderson@cooley.com

Respectfully submitted,
/s/ Douglas N. Letter DOUGLAS N. LETTER
General Counsel TODD B. TATELMAN
Principal Deputy General Counsel ADAM A. GROGG ERIC R. COLUMBUS JONATHAN B. SCHWARTZ OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 Douglas.Letter@mail.house.gov

Counsel for Amicus Curiae U.S. House of Representatives September 10, 2020

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 Case 1:20-cv-02340-EGS Document 18-1 Filed 09/04/20 Page 1 of 34

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________

}

STATE OF NEW YORK, et al.,

}

}

Plaintiffs, }

}

v.

} Case No. 20 Civ. 2340

}

DONALD J. TRUMP, in his official capacity as

}

President of the United States, et al.,

}

}

Defendants. }

________________________________________________}

[PROPOSED] AMICI CURIAE BRIEF OF THE COUNTY OF SANTA CLARA, THE CITY OF COLUMBUS, AND THIRTY LOCAL AND TRIBAL GOVERNMENTS

Zach Klein, City Attorney Richard N. Coglianese, City Solicitor General 77 South Front Street, 4th Floor Columbus, Ohio 43215
Jonathan B. Miller, Legal Director LiJia Gong, Counsel Sophia TonNu, Legal Fellow Victoria Stilwell, Staff Attorney PUBLIC RIGHTS PROJECT 4096 Piedmont Avenue #149 Oakland, California 94611

James R. Williams, County Counsel Greta S. Hansen, Chief Assistant County Counsel Tony LoPresti, Assistant County Counsel Laura S. Trice, Lead Deputy County Counsel Julia B. Spiegel, Deputy County Counsel Mary E. Hanna-Weir, Deputy County Counsel Zoé E. Friedland, Deputy County Counsel 70 West Hedding Street, East Wing, Ninth Floor San José, California 95110-1770
Attorneys for the County of Santa Clara, California

Attorneys for the City of Columbus, Ohio

Jessica M. Scheller Chief; Advice, Business & Complex Litigation Division Lauren E. Miller Special Assistant State’s Attorney Civil Actions Bureau – Affirmative & Impact Litigation Cook County State’s Attorney’s Office 500 Richard J. Daley Center Chicago, Illinois 60602

Attorneys for Cook County, Illinois

Case 1:20-cv-02340-EGS Document 18-1 Filed 09/04/20 Page 2 of 34
TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………………………………………………….iii STATEMENT OF INTEREST…………………………………………………………………. 1 SUMMARY OF ARGUMENT………………………………………………………………… 3 ARGUMENT………………………………………………………………………………….... 4
I. USPS CHANGES HARM AMICI’S ABILITY TO ADMINISTER AND FACILITATE THE NOVEMBER 3, 2020 PRESIDENTIAL GENERAL ELECTION…………………………………………………………………………. 4 A. USPS Changes Impede Amici’s Ability to Reliably Send and Receive Critical Election Materials to Voters…………………………………………….5 1. USPS Changes Impede Delivery and Receipt of Vote-By-Mail, Absentee, Replacement, Emergency, Military, and Overseas Ballots………………….6 2. USPS Changes Impede Voter Registration and List Maintenance…………. 8 3. USPS Changes Impede Voter Outreach and Education Efforts …………… 9 4. USPS Changes Impede Outreach to Cure Ballot Deficiencies….………….. 10 B. USPS Changes Create Significant Administrative and Operational Burdens for Amici Administering Elections……………………………………………....11 1. Many Amici Must Seek to Expand In-Person Voting Options and Resources….………………………………………………………………... 12 2. Many Amici Will Need to Add Official Ballot Drop Boxes, More Frequently Empty Drop Boxes, and Increase Messaging Around Drop Box Availability…………………………………………………………….. 13 3. Amici Must Absorb Increased Mail and Other Costs………………………..15
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II. USPS CHANGES UNDERMINE OTHER CORE LOCAL AND TRIBAL GOVERNMENT FUNCTIONS……………………………………………………. 16 A. USPS Delays Interfere with Timely Payments to and from Amici and Increase Administrative Burdens…..…………………………………………… 16 B. USPS Delays Harm Amici’s Enforcement Efforts……………………………… 18 C. USPS Delays Undermine Critical Local Health Care Services.…………………20
III. A NATIONWIDE INJUNCTION IS REQUIRED TO REDRESS THE HARMS CAUSED BY THE USPS CHANGES ……………………………………………...23
CONCLUSION…………………………………………………………………………………..25
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TABLE OF AUTHORITIES Page
Cases Pennsylvania v. Trump,
351 F. Supp. 3d 791, 830-35 (E.D. Pa.) .................................................................................... 24 Trump v. Int’l Refugee Assistance Project,
137 S. Ct. 2080, 2087 (2017) ................................................................................................... 23 Federal Statutes and Rules 52 U.S.C. § 20507........................................................................................................................... 9 52 U.S.C. § 21004(a)(3)................................................................................................................ 10 Fed. R. App. P. 29(a)(4)(E)............................................................................................................. 1 State Statutes 10 Ill. Comp. Stat. 5/1A-17........................................................................................................... 10 10 Ill. Comp. Stat. 5/2B-15 ........................................................................................................... 10 10 Ill. Comp. Stat. 5/2B-20 ........................................................................................................... 12 10 Ill. Comp. Stat. 5/7-40(a) ......................................................................................................... 10 10 Ill. Comp. Stat. 5/19-8(b)-(c) ................................................................................................... 11 10 Ill. Comp. Stat. 5/19-8(g-5)...................................................................................................... 11 10 Ill. Comp. Stat. 5/20-8.............................................................................................................. 12 Cal. Elec. Code §§ 2225(b), (c) ...................................................................................................... 9 Cal. Elec. Code § 3019 ................................................................................................................. 11 Cal. Elec. Code § 3020(b)(1), (d) ................................................................................................. 11 Cal. Elec. Code § 4005(a)(10)(I)(i)............................................................................................... 10 Tex. Elec. Code § 18.061................................................................................................................ 9 Tex. Elec. Code § 86.006.............................................................................................................. 15 Tex. Elec. Code § 87.0431(a), (b)(3) ............................................................................................ 11
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Local and Tribal Ordinances Cincinnati, Ohio, Mun. Code § 1101-63....................................................................................... 19
Cincinnati, Ohio, Mun. Code § 1123-05....................................................................................... 20
Cincinnati, Ohio, Mun. Code §§ 1101-57, 1101-61, 1101-81 ...................................................... 19
Emergency Yurok Tribe Election Ordinance §§ 4003, 4203, 4401, 4502 (Aug. 11, 2020) ......... 13
Other Authorities Alex Ura, Texas’ Most Populous County Sending Mail-in Ballot Applications to Millions of
Registered Voters, Tex. Trib. (Aug. 25, 2020)............................................................................ 7
Alexa Ura, Texas Tells Harris County to Halt Plan to Send all Voters Applications for Mail-in Ballots, Tex. Trib. (Aug. 28, 2020) ..................................................... 7
Bethany Blankley, Candidates, Others Sue Secretary of State over Election Law Violations, Ctr. Square (Aug. 21, 2020) ...................................................................................................... 15
Bill Bush, Few Will Travel Far to Franklin County’s Single Early-Voting Site, Analysis Finds, Columbus Dispatch, Nov. 11, 2018 ............................................................................... 15
Catherine Candisky, Ohio Drug Overdose Deaths Back on Rise, Columbus Dispatch (July 21, 2020) .......................................................................................... 22
Cherokee County, Iowa, Military/Overseas Voting........................................................................ 8
Columbus, Ohio, Access to Naloxone........................................................................................... 23
Cook County Government, Cook County Health Patients Experience Major Delays in Mail Deliveries for Daily Medical Prescriptions (Aug. 24, 2020) ..................................... 21, 22
Erin Cox et al., Postal Service Warns 46 States Their Voters Could Be Disenfranchised by Delayed Mail-In Ballots, Wash. Post (Aug. 14, 2020) ............................................................... 7
Erin Spaht, VERIFY: No, the Post Office Did Not Triple the Cost States Pay to Mail Election Ballots, WUSA (Aug. 13, 2020) ............................................................................................... 16
Jacob Bogage, ‘Everyone’s Clueless’: Cost-Cutting Uncertainty Mires Postal Service In More Delays, Wash. Post (Aug. 29, 2020) ........................................................................................... 4
Jacob Pramuk, Fewer voters say they’re voting by mail amid uproar over USPS changes, CNBC/Change Research polls find, CNBC (Aug. 26, 2020).................................................... 12
Jan Hoffman, Fearing a ‘Twindemic,’ Health Experts Push Urgently for Flu Shots, N.Y. Times (Aug. 16, 2020)........................................................................................................ 2
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Letter from Thomas J. Marshall, Gen. Couns., U.S. Postal Serv., to U.S. States (July 29, 2020) . 6
Lila Carpenter, Signature Match Laws Disproportionately Impact Voters Already on the Margins, ACLU (Nov. 2, 2018) ................................................................................................ 12
Mark Munro, As COVID-19 Resurges, So Does the Threat to Local Budgets, Brookings Inst. (June 2020) ...................................................................................................... 18
Nat’l Conf. of State Legislatures, Voting Outside the Polling Place, at tbl. 11 (2020 ............. 7, 11
Nat’l Inst. of Health, National institute on Drug Abuse: Opioid Summaries by State (2018)...... 22
Ohio Sec’y of State, The Use of Drop Boxes and Additional Instructions for Curbside Voting (Aug. 12, 2020) .................................................. 14
Press Release, Harris County Clerk, Harris County Clerk Chris Hollins Requests Governor Abbott to Extend Deadline to Receive Mailed Ballots After Election Day (Aug. 20, 2020)....... 7
Samuel Stebbins & Grant Suneson, Amid Coronavirus Pandemic, Missed Rent and Mortgage Payments Are Piling Up In Nearly Every State, USA Today (July 2020) ............................................................................................................ 18
Santa Clara County, Cal., Emergency Ballot Delivery Program, (2020) ....................................... 8
Tony Romm, Over 700 Cash-strapped Cities Halt Plans to Repair Roads, Water Systems, or Make Other Key Investments, Wash. Post (June 23, 2020),...................................................... 18
U.S. Ctrs. for Disease Control & Prevention, CDC COVID Data Tracker: Trends in Number of COVID-19 Cases in the US Reported to CDC, by State/Territory ........... 1
U.S. Dep’t of Health & Human Servs., Cincinnati City Health Department: Northside Health Center ........................................................................................................... 23
U.S. Dep’t of Just., Uniformed and Overseas Citizens Absentee Voting Act, (Feb. 18, 2020)....... 8
U.S. Election Assistance Comm’n, Election Administration and Voting Survey: 2018 Comprehensive Report, at i, 98 (2018) ....................................................................................... 6
U.S. Postal Serv., 2020 Official Election Mail ............................................................................... 4
U.S. Postal Serv., State and Local Election Mail – User’s Guide, Pub. No. 632 (Jan. 2020)...... 15
United Indian Health Servs, UIHS COVID-19 Response, Facebook (Apr. 2, 2020).................... 21
United Indian Health Servs., Consortium Tribes.......................................................................... 21
Zach Gespart, Harris County OKs $17M to Add Polls, Voting Hours and Drive-Thru Balloting For November Election, Houston Chronicle (Aug. 25, 2020) .................................................. 13 v
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STATEMENT OF INTEREST Amici, led by the County of Santa Clara and the City of Columbus,1 are local and tribal
governments from across the county—representing communities large and small, rural and
urban. Amici rely on the United States Postal Service (“USPS” or “Postal Service”) as the
operational backbone of many essential government functions. Through the mail, amici
administer elections, issue notices of violations of local ordinances, send pension checks, deliver
medication, and provide diagnostic medical testing results—many of which are time-sensitive,
time-bound, or otherwise require immediate attention.
Amici’s dependence on reliable Postal Service mail delivery has taken on even greater
significance over the past six months due to the outbreak of the COVID-19 pandemic across the United States.2 With many government offices closed, in-person staffing significantly reduced,
and residents encouraged to limit in-person contacts with people outside of their households,
much of the business of government is conducted online, over the phone, and increasingly,
through the mail. For some segments of the population, whether because of lack of familiarity
with or access to the internet, the mail is the easiest way to apply for benefits, pay tickets and
utility bills, or obtain additional services from their local or tribal government. The COVID-19-
induced public health and economic crises have increased residents’ reliance on their local and
tribal governments, including for the receipt of rental assistance and health care.
1 Amici declare that: (i) none of the parties nor their counsel prepared this brief in whole or in part; (ii) no party or party’s counsel contributed money that was intended to fund the preparation or submission of the brief; and (iii) no person or entity contributed money that was intended to fund the preparation or submission of the brief. Fed. R. App. P. 29(a)(4)(E). 2 As of September 4, 2020, more than 6 million people have contracted COVID-19 and over 185,000 COVID-19related deaths have been reported in the United States; the Centers for Disease Control and Prevention reported 43,249 new COVID-19 cases on September 1, 2020 alone. U.S. Ctrs. for Disease Control & Prevention, CDC COVID Data Tracker: Trends in Number of COVID-19 Cases in the US Reported to CDC, by State/Territory, https://perma.cc/GDD7-TRJ6.
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Amici also rely on the Postal Service to administer and facilitate federal, state, and local elections. Some amici run elections operations directly, setting up polling locations and counting mail-in or absentee ballots. Others facilitate local elections, are tasked with protecting public safety at polling locations, and engage their communities through registration drives, voter outreach, and other efforts to ensure that residents fulfill their civic duty to vote. All amici are more dependent on the efficient and reliable delivery of election-related mail this year due to public health concerns. Public health experts warn of a new surge of COVID-19 in the fall and winter, which may be aggravated by a severe flu season.3 To mitigate the health risks associated with contact outside of the home such as voting in person, some amici are mailing ballots to all eligible voters, while others are encouraging voters—especially those with health risks or who are living with vulnerable family members—to use mail-in options to cast their ballots. All amici have a vested interest in ensuring that elections are run effectively and fairly, protecting the fundamental rights of their constituents and fulfilling their statutory obligations to run and support elections while complying with public health orders and recommendations.
But now, a series of changes enacted by the recently appointed Postmaster General Louis DeJoy has undermined amici’s ability to use the mail. By slowing mail delivery and reducing the availability of mail services in certain areas, these changes hamper amici’s ability to execute their core governmental functions at a time when communities need services more than ever. Amici submit this brief to highlight the urgent harms that amici face.
3 Jan Hoffman, Fearing a ‘Twindemic,’ Health Experts Push Urgently for Flu Shots, N.Y. Times, (Aug. 16, 2020) https://perma.cc/ZUY3-V4TL.
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SUMMARY OF ARGUMENT For amici—a broad group of local and tribal governments—reliable and efficient mail services are essential to the administration of core local government functions. That reliance is even more acute today because of the COVID-19 pandemic. The changes to Postal Service policies will irreparably harm amici’s ability to administer and facilitate the November General Election. Amici rely on the Postal Service at nearly every point in the election administration process—to maintain voter rolls, register voters, conduct voter outreach and education, provide ballots, and receive completed ballots. The uncertainty and delays caused by the USPS policy changes now jeopardize these critical functions. The changes have undermined public confidence in voting by mail at a time when public health risks weigh strongly against unnecessary contact outside of the home such as voting in person. The changes also have increased the administrative burdens on amici to rapidly set up additional ways for voters to exercise their constitutional right to vote. Further, the changes interfere with amici’s other essential government functions such as collecting fees and taxes, sending pension payments, and enforcing local ordinances. Amici also depend on reliable Postal Service mail to provide critical health care services such as prescription refills, contact tracing, sexually-transmitted infection testing, and opioid overdose prevention. Without these services, patients are at risk for complications that could lead to emergency room visits and hospitalizations at a time when individuals are encouraged to stay home. In many instances, a delay of even a day can lead to irreparable harm—for amici, in fulfilling statutory obligations and ensuring efficient service delivery, and for their constituents, an elderly voter’s ballot may not be counted, a retiree may not be able to pay rent, or a patient may not receive life-
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saving medication. For these reasons, amici urge this Court to grant Plaintiffs’ motion seeking preliminary relief.
ARGUMENT I. USPS CHANGES HARM AMICI’S ABILITY TO ADMINISTER AND
FACILITATE THE NOVEMBER 3, 2020 PRESIDENTIAL GENERAL ELECTION Amici and their voting constituents rely on the Postal Service to conduct free and fair elections. Especially for the amici that are responsible for election administration, their reliance became even more pronounced in recent months as they planned for greater voting by mail in response to public health concerns surrounding in-person contact during the pandemic.4 However, those plans were thrown into question starting in early July 2020, when newly appointed Postmaster General Louis DeJoy instituted significant changes to USPS policies and operations. These changes included restricting operating hours and extra delivery trips, delaying mail processing and sorting, and changing election mail classifications and charges.5 The resulting degradation of USPS operations and mail delivery speed (1) impedes amici’s ability to reliably send and receive critical election materials to voters and (2) creates significant administrative and operational burdens for amici, which must now augment their non-mail voting options and related messaging less than two months before the General Election.
4 The Postal Service also anticipated increased vote by mail in the General Election. See, e.g., U.S. Postal Serv., 2020 Official Election Mail, https://perma.cc/6DXC-UZ96 (noting its creation of an official mail kit “in preparation for increasing Official Election Mail volume during the 2020 election season”). 5 On August 18, 2020, Postmaster DeJoy issued a statement “suspending” some of the changes, at least temporarily, but his statement did not reverse the confusion and harms already caused to USPS operations and amici. See, e.g., Jacob Bogage, (Aug. 29, 2020), ‘Everyone’s Clueless’: Cost-Cutting Uncertainty Mires Postal Service In More Delays, Wash. Post, https://perma.cc/8FMC-XDHQ.
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A. USPS Changes Impede Amici’s Ability to Reliably Send and Receive Critical Election Materials to Voters.
The changes to Postal Service operations and policies hinder amici’s ability to disseminate and receive core election information and materials, as required by federal and state law. Specifically, the USPS changes impede amici’s ability to: (1) send and receive requests for vote-by-mail, absentee, replacement, emergency, military, and overseas ballots; (2) regularly update and maintain voter registration rolls; (3) conduct voter outreach and education, including distribution of voter information guides; and (4) enable voters to timely address vote-by-mail ballot deficiencies.
These concerns about mail efficiency and reliability are not mere speculation. On August 6, 2020, for example, a candidate for office in Santa Clara County contacted the County’s Registrar of Voters to update the candidate’s statement of qualifications and inform the County that the candidate would send the requisite payment using USPS overnight guaranteed delivery. Six days later, the Postal Service sent the candidate a notice indicating it was unable to locate delivery information for the envelope carrying the check, which the County had not received. Not until August 14, 2020, long after the filing deadline, did the Postal Service locate and deliver the envelope. Had the candidate not acted swiftly to find an alternate payment method, due to the Postal Service delays, the candidate likely would have been unable to have the statement included in the county voter information guide, which is sent to all voters within the district.
The Postal Service has acknowledged this new reality. In letters to forty-six states and the District of Columbia, the Postal Service stated that its newly instituted operational delays will slow election-related mail, even indicating that some ballots requested close to state deadlines
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are unlikely to arrive in time to be counted.6 As detailed below, similar delays now imperil amici’s election administration and facilitation plans a mere two months before the General Election.
1. USPS Changes Impede Delivery and Receipt of Vote-By-Mail, Absentee, Replacement, Emergency, Military, and Overseas Ballots.
The mail is a critical way by which voters receive and return their ballots. Whether a voter is using a vote-by-mail, absentee, replacement, or emergency ballot, or is a military or overseas voter, many citizens rely upon the mail to exercise their fundamental right to vote. More than a quarter of the 120 million Americans who cast ballots in the 2018 General Election did so by mail, and Postal Service mail was the most common method of ballot return.7 In Santa Clara County more than 950,000 voters received ballots in the mail in the March primary—and 87% of those who voted used mail-in ballots to cast their votes. In Chicago, Illinois, vote-bymail is on the rise, jumping from around 4% of ballots cast in the 2000-2012 presidential elections to more than 20% in the March 2020 primary, with further increases expected in the 2020 General Election. In surrounding suburban Cook County, Illinois, the County Clerk’s Office already has received more than 176,800 vote-by-mail applications for the upcoming General Election—more than double the total number of mail ballots cast in the 2016 General Election. Harris County, Texas, experienced a more than 550% increase in vote-by-mail use between the 2016 and 2020 presidential primary run-offs and expects even larger numbers in the
6 See Letter from Thomas J. Marshall, Gen. Couns., U.S. Postal Serv., to U.S. States (July 29, 2020), https://perma.cc/E34C-7YXG. 7 U.S. Election Assistance Comm’n, Election Administration and Voting Survey: 2018 Comprehensive Report, at i, 98 (2018), https://perma.cc/8UGH-98UJ. Ballots may also be returned at polling locations and ballot drop boxes, depending on local and state regulations and policies.
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November General Election due, in part, to plans to mail ballot applications to all 2.4 million registered voters.8 And in Los Angeles County, all registered voters will receive vote-by-mail
ballots, meaning that approximately 5.5 million votes could be cast by mail.
The efficient delivery of these ballots is critical for voters to receive, complete, and mail
their ballots back to amici in time for their votes to be counted—as the Postal Service itself acknowledged.9 This is particularly true in the vast majority of states where ballots, postmarked on or before Election Day, must also be received by Election Day or shortly thereafter.10 It is
also disproportionately true for elderly voters, who are more likely to vote by mail, particularly
given their increased vulnerability to COVID-19. For example, in the March 2020 primary, Santa
Clara County voters who were 65 and older used mail-in ballots 93.5% of the time, compared to
around 70-80% for younger voters.
Mail delays are especially harmful to the emergency ballot delivery program in Santa
Clara County and similar programs administered by other amici. The program is used by
facilities that house voters who are hospitalized, incarcerated, or disabled and unable to retrieve
their ballots themselves or to vote in person, allowing them to request a replacement vote-by-
mail ballot. The program has particularly high uptake with senior living facilities, assisted living
8 Press Release, Harris County Clerk, Harris County Clerk Chris Hollins Requests Governor Abbott to Extend Deadline to Receive Mailed Ballots After Election Day (Aug. 20, 2020), https://perma.cc/Y58Z-MEW9; Alex Ura, Texas’ Most Populous County Sending Mail-in Ballot Applications to Millions of Registered Voters, Tex. Trib. (Aug. 25, 2020), https://perma.cc/8NSK-LZBX. Whether all 2.4 million applications for ballots ultimately will be sent to Harris County voters is being contested by the Texas Secretary of State. See Alexa Ura, Texas Tells Harris County to Halt Plan to Send all Voters Applications for Mail-in Ballots, Tex. Trib. (Aug. 28, 2020), https://perma.cc/HH8U-THUD. 9 See Erin Cox et al., Postal Service Warns 46 States Their Voters Could Be Disenfranchised by Delayed Mail-In Ballots, Wash. Post (Aug. 14, 2020), https://perma.cc/5CAW-YWR4. 10 See Nat’l Conf. of State Legislatures, Voting Outside the Polling Place, at tbl. 11 (2020), https://perma.cc/SJ9ECLPW.
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centers, residential care facilities, and behavioral health care facilities. If a facility requests to participate in the program, the County’s Registrar of Voters allows voters to request a ballot to be mailed to them up until seven days before Election Day.11 But given the proximity of these requests to Election Day, mail delays of even one or two days could mean that ballots are not sent to voters or received by the County’s Registrar of Voters in time to be counted.
Uniformed and overseas voters are also acutely impacted. To receive a ballot, these voters must complete a request form, which is typically sent by Postal Service mail.12 In turn, amici must mail, fax, or email the ballot to the military or overseas voter. Once complete, most of these voters must return their ballots by mail, now risking that their ballots will not be received by amici in time to be counted.13 Moreover, some amici have strict time limits within which to mail military and overseas ballots, which increases this risk. In Los Angeles County, for example, the Registrar must mail these ballots between September 4 and September 19; as a result, delays in delivering or returning mailed ballots could result in disenfranchisement.
2. USPS Changes Impede Voter Registration and List Maintenance. Efficient and reliable mail is critical for amici that directly administer elections. The mail is the primary method for voters to update their voter registration and for elections officials to
11 See, e.g., Santa Clara County, Cal., Emergency Ballot Delivery Program, at 3, 7 (2020), https://perma.cc/P6RG5CU2. If the ballot is requested within six days of the election, the County will arrange for ballots to be handdelivered to, or picked up by, the facility. But even then, the voters may be reliant on USPS to return their completed ballots. 12 See generally U.S. Dep’t of Just., Uniformed and Overseas Citizens Absentee Voting Act, (Feb. 18, 2020), https://perma.cc/SF3F-5XAE. 13 See, e.g., Cherokee County, Iowa, Military/Overseas Voting, https://perma.cc/5K3U-ASBJ. Further, in Santa Clara County, even where these voters had the option of returning their ballots by fax, 80% of military and overseas voters in the March 2020 election elected to return their ballots by mail.
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confirm address changes and update their voter rolls, as required under federal and state law.14 For example, in Santa Clara County, in the last five months alone, almost 31,000 new voters registered to vote, more than 8,000 of whom completed their registrations by paper affidavit and returned them using Postal Service mail.
In addition, most residency confirmation required by federal and state law is conducted by sending out postcard mailers. When an elections official receives information indicating possible voter address changes, the official sends postcards by mail to the address at which the voter is registered.15 If the postcard is undeliverable, the voter will not receive a vote-by-mail ballot unless they contact the elections official—often by mail—to update or confirm their address. This process is critical to ensuring that voter registration rolls are up to date—i.e., that active voters receive their voting materials and that these materials are not erroneously sent to voters who have moved or are deceased, thereby reducing the likelihood of voter fraud. In Santa Clara County, at least a few hundred postcards have been marked as undeliverable. But due to the Postal Service delays, the County now may not receive those address corrections in time to send ballots to these voters and have them returned in time to be counted.
3. USPS Changes Impede Voter Outreach and Education Efforts. Voter education and outreach is another critical aspect of amici’s election administration and facilitation efforts. It is also core to the mission of the elections departments for many amici. In many jurisdictions, significant outreach beyond the basic requirements of the Help America
14 See 52 U.S.C. § 20507; Tex. Elec. Code § 18.061 (requiring Texas to implement and maintain a statewide computerized voter registration list). 15 See, e.g., Cal. Elec. Code §§ 2225(b), (c).
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Vote Act is statutorily required.16 Moreover, amici must mail out voter information guides and other voter education material to ensure that voters have essential information in advance of the election—including how to change mailing addresses to receive vote-by-mail ballots. This outreach and messaging may need to be augmented and retooled to address concerns about voting by mail, requiring amici to make additional expenditures. In Santa Clara County, for example, because of uncertainty caused by the USPS changes, the Registrar of Voters altered its outreach messaging to further emphasize that vote-by-mail ballots can be dropped off at official ballot drop boxes and at polling locations as an alternative to returning ballots through the mail. And in response to voter concerns about the Postal Service, the City of Madison plans to have poll workers available in 206 city parks on Saturday, September 26, and on Saturday, October 3, 2020. Voters may drop off their absentee ballot with a poll worker, who will also be available to serve as a witness, if needed. The City estimates that this initiative will cost around $106,000.
4. USPS Changes Impede Outreach to Cure Ballot Deficiencies. USPS delays and uncertainty also impede voter outreach by certain amici to cure ballot deficiencies, as permitted by state law. Nineteen states have a process for voters to correct errors on their mailed-in ballot, such as a missing signature or signature that does not match voter registration records. However, most of these states have extremely short timeframes for elections officials to notify voters of the error and for the voter to correct it, all of which is predominantly
16 52 U.S.C. § 21004(a)(3) (requiring state programs for voter education); see, e.g., Cal. Elec. Code § 4005(a)(10)(I)(i) (same); 10 Ill. Comp. Stat. 5/1A-17 (requiring state departments and public institutes of higher learning to make voter registration information available); id. 5/7-40(a) (regulating ballot boxes, which allow voters to vote via drop box instead of in-person or by mail); id. 5/2B-15 (requiring Illinois election authorities, in light of COVID-19, to automatically send vote by mail applications to any person who voted by mail or in person in a 2018, 2019, or 2020 primary election, as well as to any person who registered to vote or changed their registration address between Illinois’ 2020 primary election and July 31, 2020).
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done by Postal Service mail.17 For example, in California, when elections officials find a missing
signature or mismatch between the signature on file and the signature on the ballot, they mail a
statement to the voter explaining how the ballot error can be cured.18 The voter must send back
the requisite information, arriving no later than two days before certification of the election, or
return the form in-person by the deadline, for the ballot to be counted. Postal Service delays
mean these voters may not have time to cure their ballots and have them counted, absent hand-
delivering them during a pandemic.19 In previous elections, older voters, especially voters with
disabilities, may have had their ballots disproportionately rejected due to signature mismatches
and therefore may be more likely to need to use the signature cure process.20
B. USPS Changes Create Significant Administrative and Operational Burdens for Amici Administering Elections.
The USPS changes have rattled the public’s confidence in using the Postal Service for
election-related services.21 As a result, more voters are likely to opt for in-person voting, despite
17 Nat’l Conf. of State Legislatures, supra note 10. 18 See Cal. Elec. Code § 3019 (requiring elections officials in California to provide notice to all voters with mismatching signatures on vote-by-mail ballots an opportunity to verify their signatures). In Santa Clara County, the County’s Registrar of Voters received around 1,500 of these signature verification forms by USPS mail in the March 2020 primary. See also 10 Ill. Comp. Stat. 5/19-8(g-5) (requiring the election authority in Illinois to send notice by mail of the rejection of a vote-by-mail ballot and allowing up to fourteen days after the election for the voter to cure); Tex. Elec. Code § 87.0431(a), (b)(3) (requiring notice of signature mismatch, but no opportunity to cure). 19 This concern is heightened in California, where the state proactively extended statutory deadlines for receipt of ballots by mail, allowing them to be counted if postmarked on or before Election Day and received by seventeen days after Election Day. Cal. Elec. Code § 3020(b)(1), (d); see also 10 Ill. Comp. Stat. 5/19-8(b)-(c) (requiring that mail-in votes postmarked no later than Election Day to be counted). However, the cure period was not also extended, which means that voters have an even shorter period of time to verify their signature. Compare id. 5/2B20, with id. 5/20-8 (making no changes in period to cure signature mismatches). 20 Lila Carpenter, Signature Match Laws Disproportionately Impact Voters Already on the Margins, ACLU (Nov. 2, 2018), https://perma.cc/U7JG-4QUU. 21 See, e.g., Jacob Pramuk, Fewer Voters Say They’re Voting by Mail amid Uproar over USPS Changes, CNBC/Change Research Polls Find, CNBC (Aug. 26, 2020), https://perma.cc/TCJ3-WBYG (describing swing-state poll indicating significant drops in voters who plan to vote by mail).
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the COVID-19 pandemic, or to seek out ballot boxes. Yet far more voters are receiving ballots by mail than in any prior election. As a result, amici will need to augment their plans for inperson voting, mail-in voting, ballot drop boxes, and other election services, imposing significant administrative and operational burdens only two months before the General Election.
1. Many Amici Must Seek to Expand In-Person Voting Options and Resources.
Due to the unreliability of USPS mail, amici must now seek to increase in-person voting opportunities to the extent practicable. These changes must be implemented only two months before the General Election and in accordance with state and local pandemic-related public health orders and recommendations. Yet many polling locations—many of which are senior centers and living facilities—are now declining to serve in that capacity due to COVID-19 concerns.22 At the same time, amici may be unable to increase poll-worker staff at existing polling locations while maintaining a six-foot distance between work stations, as recommended by the Centers for Disease Control and Prevention. Given these constraints, some jurisdictions are now making significant changes to increase voting hours and otherwise supplement capacity to ensure all voters can safely exercise their right to vote. For instance, after the Postal Service informed the state of Texas of potential delays, to account for the uncertainty of whether voters will vote in person or by mail, Harris County approved an additional $17 million outlay to both extend early voting hours to 10 p.m. on multiple nights, add one 24-hour voting period, and
22 For example, as of the end of August 2020, five senior centers or living facilities in Santa Clara County have declined to serve as polling locations due to COVID-19-related concerns.
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provide drive-through options, as well as to obtain new equipment to process an anticipated record number of ballots received by mail.23
However, for other local jurisdictions, increasing in-person voting capacity is not an option. For example, the Yurok Tribe, which is located in rural Del Norte and Humboldt counties in California, passed emergency legislation requiring the General Election to be conducted entirely by mail because of COVID-19 associated risks.24 As a result, tribal voters are entirely dependent on the mail to vote. In an area where access to the Postal Service is already extremely limited,25 these voters now have no choice but to be subject to USPS’s delays, increasing the likelihood that their ballots will not arrive or be returned in time to be counted. Ultimately, due to uncertainty caused by the USPS changes, many amici will have to prepare for both scenarios: increased voting at polling locations, and increased use of mail-in ballots and ballot boxes—even though budgets are tight and time to prepare is short.
2. Many Amici Will Need to Add Official Ballot Drop Boxes, More Frequently Empty Drop Boxes, and Increase Messaging Around Drop Box Availability.
Particularly where it is not possible to increase polling locations, amici, where possible, will need to increase the number of official drop boxes, drop box pick-ups, and messaging about drop box availability. In Santa Clara County, because of the USPS changes, the Registrar of Voters will need to add three additional routes to pick up drop box ballots. The County will also
23 Zach Gespart, Harris County OKs $17M to Add Polls, Voting Hours and Drive-Thru Balloting For November Election, Houston Chronicle (Aug. 25, 2020), https://perma.cc/XYK4-XNDE. 24 Emergency Yurok Tribe Election Ordinance §§ 4003, 4203, 4401, 4502 (Aug. 11, 2020). 25 In some Yurok tribal areas, mail cannot be delivered to households; rather, members depend on access to transportation to a local Post Office to pick up and send mail. The local Post Office has limited business hours and depends on a postal processing site in Eureka, California, leading to further mail delivery delays.
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need to place twenty-three additional boxes at locations that had high volume return in the March 2020 primary and to increase its public messaging to urge greater drop box use. The County and other amici must now seek to identify funds to provide these additional services at a time when local and tribal government budgets are facing enormous strains due to mounting COVID-related community needs that dwarf shrinking revenue.
Other amici are constrained from increasing drop box availability, putting additional pressure on amici to find other ways to expand voting opportunities. In Ohio, for example, the Secretary of State has issued a directive prohibiting any Board of Elections from using more than one drop box location per county.26 That means that any resident of the City of Columbus, for example, can drop off their ballot at only one location—the Franklin County Board of Elections office—even though that location may be a long distance to travel, in some cases more than 25 miles roundtrip, for many residents of Columbus and broader Franklin County.27 The same is true for the City of Cincinnati, where the only drop box is located outside of the City and is hard to access by public transit. In Harris County—and all counties in Texas—drop boxes are not permitted, though voters may deposit their ballots at the voting clerk’s office. For these jurisdictions, even in the face of a pandemic, in-person voting will be the primary option for casting a vote due to the uncertainty caused by the USPS changes for voting by mail—putting
26 Ohio Sec’y of State, The Use of Drop Boxes and Additional Instructions for Curbside Voting (Aug. 12, 2020), https://perma.cc/392P-MZGN (“Boards of elections are prohibited from installing a drop box at any other location other than the board of elections.”). 27 In 2018, due to state restrictions, Franklin County only operated one early polling location. Almost half of the County’s residents who voted in-person before Election Day lived within five miles of the polling location; those that lived further away used it “sparingly.” Bill Bush, Few Will Travel Far to Franklin County’s Single Early-Voting Site, Analysis Finds, Columbus Dispatch, Nov. 11, 2018, https://perma.cc/EG59-CW6A.
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even greater pressure on these jurisdictions to boost in-person voting capacity while adhering to public health orders and recommendations amid shrinking budgets.28
3. Amici Must Absorb Increased Mail and Other Costs. The USPS’s longstanding practice has been to treat all election mail as First Class mail, which means election mail receives priority and is typically delivered between two and five days after mailing.29 Now, USPS has announced that election mail will instead be treated as standard mail, with delivery timeframes between three and ten days,30 and possibly more when mail volumes are unusually high such as during the winter holidays. As a result, amici may need to pay approximately 35 cents more per piece of election mail to ensure it is treated as First Class mail31—a significant cost and logistical change with little time to locate funds. Other costs include a likely uptick in counter services required to address voting questions at various Registrars of Voters and Boards of Election offices and otherwise deal with the upheaval caused by the USPS changes. Marin County has already noted an increased number of concerned calls to its Registrar of Voters about USPS changes. Taken together, these changes undermine the reliability of election-related mail—and amici’s election administration plans—on the eve of a Presidential General Election that amici
28 See Tex. Elec. Code § 86.006. Harris County has piloted allowing these ballot drop boxes at eleven of the clerk’s office’s locations, making ballot delivery more accessible. Whether these ballot drops can occur during an extended early voting period is currently being litigated. See Bethany Blankley, Candidates, Others Sue Secretary of State over Election Law Violations, Ctr. Square (Aug. 21, 2020), https://perma.cc/T42Z-LE2N. 29 See U.S. Postal Serv., State and Local Election Mail – User’s Guide, Pub. No. 632 (Jan. 2020), https://perma.cc/TGE5-2NW5. 30 Id. 31 Erin Spaht, VERIFY: No, the Post Office Did Not Triple the Cost States Pay to Mail Election Ballots, WUSA (Aug. 13, 2020), https://perma.cc/Y2K7-6Z3C.
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must administer and facilitate during the worst pandemic in a century. Moreover, these changes come at a time when, as detailed below, USPS delays will impose significant non-election related costs on amici. II. USPS CHANGES UNDERMINE OTHER CORE LOCAL AND TRIBAL
GOVERNMENT FUNCTIONS. Separate and apart from the harms to election administration, the USPS changes will hamper other core local and tribal government functions. Indeed, USPS delays will further stress local government services at a time when they already face unprecedented challenges due to COVID-19. These impacts include delays in payments, enforcement actions, and critical health care services. A. USPS Delays Interfere with Timely Payments to and from Amici and
Increase Administrative Burdens. USPS delays will impede revenue streams that fund essential services for residents. Amici collect millions to billions of dollars in parking tickets, tax payments, and user fees, which support police and fire services, public schools, libraries, and park districts, among other things. Much of this revenue flows through the postal system—and is time-sensitive. Year-to-date, for example, the City of Chicago’s Department of Finance has received over $18 million in mailed parking tickets, red light camera violations, and speed camera violations; over $233 million via mailed tax payments; and $422 million in mailed payments related to its Aviation Department.32 And in 2019, Chicago received over $349 million via 403,813 mailed payments for its Utility Billing and Customer Services, which include water, sewer, and garbage fees and related taxes.
32 These payments include, for example, payments for Landing Fees, Terminal Area Use Charges, Rents, Concessions, and other Passenger Facility Charges and Customer Facility Charges.
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Mail delays thus present a two-fold problem for local revenue streams. First, given that cities and counties collect up to billions of dollars through mail-in payments, even small delays can result in the loss of millions of dollars of earned interest income on savings or investments. These losses, in turn, directly impact amici’s bottom lines and budgets, which already are stretched thin during the pandemic and economic downturn. Second, mail delays create confusion for payees and additional operational burdens for local government employees. In Chicago, for example, an automated system electronically imposes late fees on parking ticket fines that are not paid within the allotted time. If a resident’s otherwise timely payment gets delayed or lost in the mail, Chicago must then track the original payment, manually remove the late fee, and communicate with the payee regarding the true amount owed. Given the volume of parking tickets processed daily, particularly in larger cities, these extra administrative burdens can add up to significant manpower and notice costs at a time when localities already are facing significant budget and staffing cuts.33
Relatedly, USPS delays pose a threat to residents who rely on the mail for certain local government payments. In Cincinnati, for example, many residents receive retirement service and pension payments from the City through the mail. A mail delay of just a few days—at a time when 24% of Ohioans either missed their most recent housing payment or are not confident that
33 See, e.g., Mark Munro, As COVID-19 Resurges, So Does the Threat to Local Budgets, Brookings Inst. (June 2020), https://perma.cc/T9GC-SHZP (reporting that in June 2020, states and localities across the country already had laid off 1.5 million government workers as a result of COVID-19 budget cuts); see also Tony Romm, Over 700 Cash-strapped Cities Halt Plans to Repair Roads, Water Systems, or Make Other Key Investments, Wash. Post (June 23, 2020), https://perma.cc/XS42-7BF5.
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they will be able to make their next one34—can make the difference between a missed or late payment and related fees. In the Yurok Tribe, fishermen confronted with depleted salmon stocks rely upon local governments to disburse disaster relief payments, sent through the mail, to make ends meet. Delays could be devastating for these fishermen. Similarly, the City of Chicago’s Department of Family and Support Services operates a Rental Assistance Program to help those who may face homelessness due to COVID-19. Within the past four months, Chicago received over 500 applications for this program through the mail. Even with a significant increase in funding for the program in response to the pandemic, the Department receives twice the number of applications than it can fund in a single month. Because the program has a finite budget that is inadequate to address local demand, and because applications often require back-and-forth to ensure all requirements have been met, mail delays could cause applicants to miss out on this program, or to not apply to other assistance programs for which they would be eligible if their rental assistance applications were denied. As a result, more Chicago residents could be at risk of becoming homeless.
B. USPS Delays Harm Amici’s Enforcement Efforts. In addition to revenue collection, the USPS changes threaten to delay and undermine local enforcement efforts. Specifically, many local governments use the mail system to deliver code violation and fine notices. Timely delivery of these notices is thus crucial to correcting infractions as soon as possible and thereby protecting residents’ safety and well-being.
34 Samuel Stebbins & Grant Suneson, Amid Coronavirus Pandemic, Missed Rent and Mortgage Payments Are Piling Up In Nearly Every State, USA Today (July 2020), https://perma.cc/DVA4-LQ7A.
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In Cincinnati, for example, the City relies on the mail system to enforce building standards and prevent mass foreclosures. Indeed, the Cincinnati Department of Buildings and Investigations—responsible for maintaining the health, safety, and welfare of Cincinnati residents in connection with residential and commercial buildings35—spends $41,000 on postage costs alone each year. Cincinnati uses this postage to send out critical notices concerning building demolitions and repairs that violate city code and face administrative proceedings.36 A delay in these notices may, as a result, perpetuate or create dangerous conditions for residents. Moreover, Cincinnati requires that within ten business days of filing a foreclosure action on residential property, banks register—through the mail—the vacant or foreclosed property with the city and maintain it until it is sold or reoccupied.37 Accurate and timely registrations are critical to Cincinnati’s efforts to track and combat the proliferation of abandoned properties and neighborhood blight, particularly in the present economic downturn.38
Code enforcement extends beyond building violations and, in fact, touches almost every aspect of residents’ everyday lives. In an average year, for example, the City of Chicago’s Department of Streets and Sanitation writes 40,000 to 50,000 tickets for violations, including overgrown weeds, overflowing garbage, and rat harborage—all of which are sent via USPS mail. Accordingly, even a few days’ delay in mail can create and exacerbate unsafe and unsanitary living conditions.
35 Cincinnati, Ohio, Mun. Code § 1101-63. 36 Id. §§ 1101-57, 1101-61, 1101-81. 37 Id. § 1123-05. 38 See supra, note 33.
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More generally, amici rely upon the mail for basic registration and authorization functions. Chicago’s Department of Business Affairs and Consumer Protection, for example, depends on the mail to send out business license applications, certificates, and account documents, including new licenses, cancellation forms, and license payments. Delays in this official correspondence can create significant confusion and backlogs in the licensing process, thus adding to the City’s administrative burdens and harming businesses forced to delay their operations while waiting on documents.
C. USPS Delays Undermine Critical Local Health Care Services. USPS delays present a particularly acute problem for locally administered health care services, which many amici provide to millions of residents. Many of these local health care systems use the mail system to provide aspects of this care. Cook County, Illinois, for example, operates one of the largest hospital systems in the nation. In this role, Cook County Health’s mail order pharmacy fulfills more than 20,000 prescriptions each month and relies on USPS to deliver prescriptions to patients.39 In July 2020, 23% of those prescriptions—more than 5,000 prescriptions—were delayed.40 In comparison, less than 1% of prescriptions faced delays in March of 2020.41 And already-vulnerable populations are disproportionately impacted by these delays. In certain zip codes within the Chicago area’s South Side neighborhoods, for example, as many of 50% of Cook County Health’s mail order
39 Cook County Government, Cook County Health Patients Experience Major Delays in Mail Deliveries for Daily Medical Prescriptions (Aug. 24, 2020), https://perma.cc/NBH3-HH43. 40 Id. 41 Id.
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prescriptions faced mail delays in July.42 Similarly, members of the Yurok Tribe—many of whom already face severely limited mail conditions—depend on mail order prescriptions delivered through the United Indian Health Services.43 The Los Angeles County Department of Health Services (“DHS”) has seen a marked increase in patients receiving their prescriptions by mail during the COVID-19 pandemic, jumping from about 15-16% prior to the pandemic to over 70-72% of patients during it. However, DHS reports that since the USPS policy changes, delivery times for prescriptions have shifted from three to five days to as long as three weeks.
These medication delays have life-threatening consequences, particularly when in-person options pose significant health risks during the pandemic. As the Chief Medical Officer at Cook County Health has explained, “[i]n many cases, these [delayed prescriptions] are life-saving medications that treat diabetes, hypertension and other chronic illnesses. Without these medications, patients are at risk for complications that could lead to emergency room visits and hospitalizations at a time when we are asking people to stay home.”44 Indeed, the Postal Service’s cost-cutting measures will exacerbate the spread of COVID-19 in more ways than one: local government health care providers not only rely upon mail-prescriptions to encourage patients to stay home, but also use the postal system for infectious disease contact tracing and quarantine notices for individuals without reliable internet or phone. A postal delay of just one
42 Id. 43 The Yurok Tribe is one of nine tribes that joined a consortium to operate the United Indian Health Services’ network of clinics. United Indian Health Servs., Consortium Tribes, https://perma.cc/KT53-35ZS. During the pandemic, the network has recommended that patients receive their prescriptions by mail to avoid in-person contact. United Indian Health Servs, UIHS COVID-19 Response, Facebook (Apr. 2, 2020), https://perma.cc/C3SM-GBW8. 44 Cook County Government, supra 39.
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day could, as a result, lead to innumerable infections if an unknowingly infected person goes to work or school while waiting for results, undermining efforts to control an outbreak.
Amici’s mail-related health care services extend beyond prescription programs and the mailing of COVID-19 notices and test results. The State of Ohio, for example, has the fourth highest rate of opioid-involved overdose deaths in the country,45 and Columbus and its surrounding suburbs have the highest number of overdose deaths—543 in 2019—in the state.46 To combat this crisis, Columbus mails free naloxone kits—used to prevent overdoses—through the mail to clinic providers and others.47 A delay in receiving these kits could directly result in preventable deaths. Relatedly, through the mail, the City of Cincinnati provides testing for sexually-transmitted diseases and screening for cancer and other chronic illnesses, such as diabetes.48 And because testing results are confidential, the City mails notices to vulnerable patients, including elderly or unsheltered community members, to request that they follow up with the Department of Health via phone or in person. In these instances, mail delays could worsen health outcomes not only for the recipients, but also for those with whom they may come into contact.
45 Nat’l Inst. of Health, National institute on Drug Abuse: Opioid Summaries by State (2018), https://perma.cc/EV5W-32WA. 46 Catherine Candisky, Ohio Drug Overdose Deaths Back on Rise, Columbus Dispatch (July 21, 2020), https://perma.cc/BP65-LQCU. 47 Columbus, Ohio, Access to Naloxone, https://perma.cc/9ZZ3-CVTU. 48 U.S. Dep’t of Health & Human Servs., Cincinnati City Health Department: Northside Health Center, https://perma.cc/A62G-BSEX.
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III. A NATIONWIDE INJUNCTION IS REQUIRED TO REDRESS THE HARMS CAUSED BY THE USPS CHANGES. The significant harms that amici and the plaintiff states and jurisdictions are experiencing
due to the USPS changes are immediate and irreparable—and they will persist without nationwide relief.49
If only some states are granted relief, voters receiving ballots outside of those select states will continue to be adversely impacted by the USPS changes. For example, for overseas and military voters, and other voters who receive and mail their ballots outside of the jurisdictions that are granted relief, such relief will be incomplete.50 Santa Clara County, for example, has nearly 7,500 military and overseas voters and anticipates mailing more than an additional 11,000 ballots to voters who live in the County but requested that their ballots be mailed to an out-of-state address. The City of Madison has nearly 1,000 military and overseas voters and anticipates more than 2,500 total absentee ballots will be mailed outside of the county. Piecemeal relief will cause further confusion for voters and amici seeking to administer and facilitate elections, with little time to engage in outreach to clarify which voters will still be affected by USPS mail delays. Moreover, these mail delays cannot be redressed or otherwise mitigated through other voting avenues, as out-of-jurisdiction voters do not have the option of
49 Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam) (“Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.”). 50 See Pennsylvania v. Trump, 351 F. Supp. 3d 791, 830-35 (E.D. Pa.), aff'd sub nom. Pennsylvania v. President United States, 930 F.3d 543 (3d Cir. 2019), as amended (July 18, 2019), cert. granted sub nom. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 918, (2020), and cert. granted sub nom. Trump v. Pennsylvania, 140 S. Ct. 918, (2020), and rev'd and remanded sub nom. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020 (exercising judgment and discretion in crafting a remedy that provides “complete relief to the plaintiffs”).
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Case 1:20-cv-02340-EGS Document 18-1 Filed 09/04/20 Page 30 of 34 depositing a ballot in a local drop box or voting in person. Similarly, many local government operations conducted through the mail are not confined to geographical borders. As explained above, some of amici’s infectious disease contact tracing, which can save lives and limit the spread of COVID-19, relies upon mailing test results and quarantine notices to persons connected to local contacts regardless of the other person’s location.
As the Postal Service letters to nearly all states reveal, the USPS changes are nationwide in scope, and so, too, must be the remedy.
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CONCLUSION For the foregoing reasons, amici urge the Court to grant Plaintiffs’ motion for preliminary injunction.

ZACK KLEIN CITY ATTORNEY
Zach Klein, City Attorney Richard N. Coglianese, City Solicitor General 77 South Front Street, 4th Floor Columbus, Ohio 43215
Jonathan B. Miller, Legal Director LiJia Gong, Counsel Sophia TonNu, Legal Fellow Victoria Stilwell, Staff Attorney PUBLIC RIGHTS PROJECT 4096 Piedmont Avenue #149 Oakland, California 94611
Attorneys for the City of Columbus, Ohio
Jessica M. Scheller Chief; Advice, Business & Complex Litigation Division Lauren E. Miller Special Assistant State’s Attorney Civil Actions Bureau - Affirmative & Impact Litigation Cook County State’s Attorney’s Office 500 Richard J. Daley Center Chicago, IL 60602
Attorneys for Cook County, Illinois

Respectfully submitted,
JAMES R. WILLIAMS COUNTY COUNSEL
/s/ Zoé E. Friedland James R. Williams, County Counsel Greta S. Hansen, Chief Assistant County Counsel Tony LoPresti, Assistant County Counsel Laura S. Trice, Lead Deputy County Counsel Julia B. Spiegel, Deputy County Counsel Mary E. Hanna-Weir, Deputy County Counsel Zoé E. Friedland, Deputy County Counsel 70 West Hedding Street, East Wing, Ninth Floor San José, California 95110-1770 Tel. (408) 497-5198 zoe.friedland@cco.sccgov.org
Attorneys for the County of Santa Clara, California

Dated: September 4, 2020
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ADDITIONAL COUNSEL

YIBIN SHEN City Attorney 2263 Santa Clara Avenue Room #280 Alameda, CA 94501 Attorney for the City of Alameda, California
NINA HICKSON City Attorney 55 Trinity Avenue, Suite 5000 Atlanta, GA 30303 Attorney for the City of Atlanta, Georgia

ANDREW W. GARTH Interim City Solicitor 801 Plum Street, Room 214 Cincinnati, Ohio 45202 Attorney for the City of Cincinnati, Ohio
BARBARA J. DOSECK City Attorney 101 W. Third Street P.O. Box 22 Dayton, OH 45401 Attorney for the City of Dayton, Ohio

ANNE L. MORGAN City Attorney P.O. Box 1546 Austin, TX 78701-1546 Attorney for the City of Austin, Texas
FARIMAH FAIZ BROWN City Attorney 2180 Milvia Street, 4th Floor Berkeley, CA 94704 Attorney for the City of Berkeley, California
EUGENE L. O'FLAHERTY Corporation Counsel City Hall, Room 615 Boston MA, 02201 Attorney for the City of Boston, Massachusetts
NANCY E. GLOWA City Solicitor City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Attorney for the City of Cambridge, Massachusetts
MARK A. FLESSNER Corporation Counsel 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 Attorney for the City of Chicago, Illinois

RAFAEL E. ALVARADO JR. City Attorney 2415 University Ave. East Palo Alto, CA 94303 Attorney for the City of East Palo Alto, California
ANGELA WHEELER City Attorney 1101 S. Saginaw Street Flint, MI 48502 Attorney for the City of Flint, Michigan
RODNEY POL, JR. City Attorney 401 Broadway, Suite 101 Gary, IN 46402 Attorney for the City of Gary, Indiana
VINCE RYAN Harris County Attorney 1019 Congress St., 15th Floor Houston, Texas 77002 Attorney for Harris County, Texas
RONALD C. LEWIS City Attorney 900 Bagby, 4th Floor Houston, TX 77002 Attorney for the City of Houston, Texas

Case 1:20-cv-02340-EGS Document 18-1 Filed 09/04/20 Page 33 of 34

MARY C. WICKHAM County Counsel 648 Kenneth Hahn Hall of Administration 500 West Temple Street Los Angeles, CA 90012 Attorney for the County of Los Angeles, California

YVONNE S. HILTON City Solicitor City County Building 414 Grant Street Pittsburgh, PA 15219 Attorney for the City of Pittsburgh, Pennsylvania

MICHAEL N. FEUER City Attorney 200 North Main Street, 8th Floor Los Angeles, CA 90012 Attorney for the City of Los Angeles, California
MICHAEL HAAS City Attorney 210 Martin Luther King Jr. Blvd., Room 401 Madison, WI 53703 Attorney for the City of Madison, Wisconsin

TRACY REEVE City Attorney 1221 SW Fourth Avenue, Room 430 Portland, OR 97204 Attorney for the City of Portland, Oregon
LYNDSEY M. OLSON City Attorney 400 City Hall and Courthouse 15 West Kellogg Boulevard Saint Paul, MN 55102 Attorney for the City of Saint Paul, Minnesota

BRIAN E. WASHINGTON

ANTHONY P. CONDOTTI

County Counsel

City Attorney

3501 Civic Center Drive, Suite 275

Atchinson, Barisone & Condotti

San Rafael, CA 94903

P.O. Box 481

Attorney for Marin County, California

Santa Cruz, CA 95061

Attorney for the City of Santa Cruz, California

LESLIE J. GIRARD

County Counsel

PETER S. HOLMES

168 West Alisal Street, 3rd Floor

Seattle City Attorney

Salinas, CA 93901

701 Fifth Avenue, Suite 2050

Counsel for the County of Monterey, California Seattle, WA 98104-7097

Attorney for the City of Seattle, Washington

BARBARA J. PARKER

City Attorney

FRANCIS X. WRIGHT, JR.

One Frank Ogawa Plaza

City Solicitor

Sixth Floor

93 Highland Avenue

Oakland, CA 94612

Somerville, MA 02143

Attorney for the City of Oakland, California Attorney for the City of

Somerville, Massachusetts

MARCEL S. PRATT

Philadelphia City Solicitor

1515 Arch Street, 17th Floor

Philadelphia, PA 19102

Attorney for the City of

Philadelphia, Pennsylvania

Case 1:20-cv-02340-EGS Document 18-1 Filed 09/04/20 Page 34 of 34

MICHAEL JENKINS City Attorney Best Best & Krieger, LLP 1230 Rosecrans Avenue, Ste 110 Manhattan Beach, CA 90266 Attorney for the City of West Hollywood, California

MAGGIE POFFENBARGER Associate General Counsel 190 Klamath Blvd. Klamath, CA 95548 Attorney for the Yurok Tribe

 
 Case 1:20-cv-02340-EGS Document 21-1 Filed 09/08/20 Page 1 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF NEW YORK, et al.,
Plaintiffs, v. DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

No. 1:20-cv-2340-EGS

BRIEF OF MEMBERS OF CONGRESS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS
Elizabeth B. Wydra (DC Bar No. 483298) Brianne J. Gorod (DC Bar No. 982075) Dayna J. Zolle (DC Bar No. 1672633) CONSTITUTIONAL ACCOUNTABILITY
CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 elizabeth@theusconstitution.org brianne@theusconstitution.org dayna@theusconstitution.org
Counsel for Amici Curiae

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.................................................................................................. ii
INTEREST OF AMICI CURIAE ............................................................................................ 1
INTRODUCTION .................................................................................................................. 1
ARGUMENT ......................................................................................................................... 4
I. Since the Nation’s Founding, The Post Office Has Played a Critically Important Role in American Society .................................................................... 4
II. Reflecting the Importance of the Postal System’s Role, Congress Has Required the Postal Service to Follow Certain Procedures Whenever It Seeks to Change the Nature of Postal Services in a Way That Will Generally Affect Service on a Substantially Nationwide Basis ............................................................................ 7
III. By Failing to Request an Opinion from the Postal Regulatory Commission Before Making Its Recent Changes, the Postal Service Has Violated Federal Law ....................................................................................................................... 12
CONCLUSION ...................................................................................................................... 16
APPENDIX: LIST OF AMICI................................................................................................ 1A

i

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TABLE OF AUTHORITIES

Page(s)

CASES

Buchanan v. U.S. Postal Serv., 508 F.2d 259 (5th Cir. 1975).....................................................................................

11, 14

Carlson v. Postal Regulatory Comm’n, 938 F.3d 337 (D.C. Cir. 2019) ..................................................................................

9, 14

GameFly, Inc. v. Postal Regulatory Comm’n,

704 F.3d 145 (D.C. Cir. 2013) ..................................................................................

9

Govs. of U.S. Postal Serv. v. U.S. Postal Rate Comm’n,

654 F.2d 108 (D.C. Cir. 1981) ..................................................................................

8, 9

United Parcel Serv., Inc. v. U.S. Postal Serv., 604 F.2d 1370 (3d Cir. 1979).................................................................................... 8, 11, 14

U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd.,

540 U.S. 736 (2004) ..................................................................................................

10

CONSTITUTIONAL PROVISIONS, STATUTES, AND LEGISLATIVE MATERIALS

Conf. Rep. No. 91-1363, 91st Cong., 2d Sess. (Aug. 3, 1970) .....................................

12

H.R. Rep. No. 91-1104 (1970) ...................................................................................... passim

Postal Accountability and Enhancement Act of 2006, Pub. L. No. 109-435, 120 Stat. 3198

(Dec. 20, 2006) (codified at 39 U.S.C. § 3600 et seq.) .............................................

1, 12

Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719 (Aug. 12, 1970) (codified at 39 U.S.C. § 101 et seq.) ..............................................

1, 8, 9

Postal Service Act of 1792, ch. 7, 1 Stat. 232 ...............................................................

2, 5

39 U.S.C. § 202(a) .........................................................................................................

8

39 U.S.C. § 202(c) .........................................................................................................

8

39 U.S.C. § 202(d).........................................................................................................

8

39 U.S.C. § 402 .............................................................................................................

11

ii

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TABLE OF AUTHORITIES – cont’d

Page(s)

39 U.S.C. § 3601 ...........................................................................................................

9

39 U.S.C. § 3621 ...........................................................................................................

11

39 U.S.C. § 3622 ...........................................................................................................

9

39 U.S.C. § 3623 ...........................................................................................................

9

39 U.S.C. § 3624 ...........................................................................................................

9

39 U.S.C. § 3661(b)....................................................................................................... 39 U.S.C. § 3661(c) ....................................................................................................... 39 U.S.C. § 3663 ...........................................................................................................

passim 3, 7 9

U.S. Const. art. 1, § 8 ....................................................................................................

2, 4

OTHER AUTHORITIES

Compl., NAACP v. U.S. Postal Serv., No. 1:20-cv-2295 (D.D.C. Aug. 20, 2020) ....... 2, 6, 12, 13

Compl., New York v. Trump, No. 1:20-cv-2340 (D.D.C. Aug. 25, 2020).................... 2, 12, 13, 15

Compl., Washington v. Trump, No. 1:20-3127 (E.D. Wash. Aug. 18, 2020) ...............

9, 12

The Federalist No. 42 (James Madison) (Clinton Rossiter ed., 1961) ..........................

5

Wendell Phillips Garrison, 1 William Lloyd Garrison, 1805-1879: The Story of His Life

Told by His Children (1885) .....................................................................................

6

Richard R. John, Spreading the News: The American Postal System from Franklin to

Morse (1995).............................................................................................................

5

Pres. Richard Nixon, Remarks upon Signing the Postal Reorganization Act

(Aug. 12, 1970) .........................................................................................................

11

President’s Commission on Postal Organization, Towards Postal Excellence (1968) . 3, 4, 8, 10

Rural and Urban Origins of the U.S. Postal Service, RISC Report WP-19-007

(Aug. 26, 2019) .........................................................................................................

6

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TABLE OF AUTHORITIES – cont’d

Page(s)

W. Sherman Savage, Abolitionist Literature in the Mails. 1835-1836,

13 J. Afr. Am. Hist. 150 (1928) ................................................................................

6

Alex Seitz-Wald, How Do You Know Voting by Mail Works? The U.S. Military’s Done It

Since the Civil War, NBC News (Apr. 19, 2020),

https://www.nbcnews.com/politics/2020-election/how-do-you-know-voting-mail-

works-u-s-military-n1186926 ...................................................................................

13

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INTEREST OF AMICI CURIAE1 Amici are members of the U.S. Senate, many of whom served when key components of the nation’s laws governing the U.S. Postal Service, including provisions pertinent to this case, were drafted, debated, and passed. Based on their experience serving in Congress, amici understand that the Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719 (Aug. 12, 1970) (codified at 39 U.S.C. § 101 et seq.), as amended by the Postal Accountability and Enhancement Act of 2006, Pub. L. No. 109-435, 120 Stat. 3198 (Dec. 20, 2006) (codified at 39 U.S.C. § 3600 et seq.), was passed to ensure that management of the Postal Service remains free from partisan politics and accountable to the American public, particularly when the Postal Service seeks to make nationwide changes in the nature of postal services. Amici therefore have a substantial interest in ensuring that this Court recognizes that when the Postal Service and Postmaster General failed to follow the procedures set forth in 39 U.S.C. § 3661—which requires that the Postal Regulatory Commission and members of the public have the opportunity to weigh in before the Postal Service implements certain changes—they not only violated the plain text of § 3661 but also acted counter to Congress’s plan in enacting that legislation. A full listing of amici appears in the Appendix.
INTRODUCTION In June and July 2020, Postmaster General Louis DeJoy instituted several major changes that have had a significant effect on the nature of postal services nationwide. According to Plaintiffs in this lawsuit and others, the U.S. Postal Service has, under DeJoy’s instruction, “removed hundreds of collection boxes and high-speed sorting machines; cut or curtailed
1 Amici state that no counsel for a party authored this brief in whole or in part, and no person other than amici or their counsel made a monetary contribution to the brief’s preparation or submission.
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overtime; prohibited needed late trips and extra trips; and [begun] a pilot program in almost 400 localities that turned how the agency processes mail on its head.” Compl. 2, New York v. Trump, No. 1:20-cv-2340 (D.D.C. Aug. 25, 2020). These changes have allegedly “produced serious delays across the country despite the fact that letter mail volume had decreased during the [COVID-19] pandemic.” Id. at 3; see Compl. 2, NAACP v. U.S. Postal Serv., No. 1:20-cv-2295 (D.D.C. Aug. 20, 2020) (“[T]he Postal Service has made significant changes that have resulted in unreliable service and widespread delays.”). Particularly troubling, these changes “will hinder the delivery of mail ballots and ballot applications” across the country, Compl. 61, New York, No. 1:20-cv-2340, just as many states are “expect[ing] a record-breaking volume of mail-in voting for the November 2020 election,” Compl. 16, NAACP, No. 1:20-cv-2295. The Postal Service has imposed these changes in violation of federal laws that Congress passed to protect the Postal Service from partisan influence and ensure its accountability to the public.
The U.S. Constitution vests Congress with the power to “establish Post Offices and post Roads,” U.S. Const. art. 1, § 8, and Congress created the U.S. Post Office Department just a few years after the Constitution’s ratification, Postal Service Act of 1792, ch. 7, § 1, 1 Stat. 232. The postal system quickly became fundamental to the functioning of American democracy and American society more broadly. As the United States developed and grew, the Post Office Department made changes to the postal system to ensure that it was accessible to everyone, no matter where they lived or how much money they had.
Reflecting the critically important role the Postal Service has played in American society since the nation’s founding, Congress has acted over time to protect the integrity and effectiveness of the postal system. As relevant here, Congress enacted the Postal Reorganization Act of 1970, as amended by the Postal Accountability and Enhancement Act of 2006, which
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requires the Postal Service to follow certain procedures that allow the public to weigh in “[w]hen the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis.” 39 U.S.C. § 3661(b). Specifically, when the Postal Service seeks to make such a change, it “shall submit a proposal . . . to the Postal Regulatory Commission requesting an advisory opinion on the change.” Id. The Act also states that “[t]he Commission shall not issue its opinion on any proposal until an opportunity for hearing on the record . . . has been accorded to the Postal Service, users of the mail, and an officer of the Commission who shall be required to represent the interests of the general public.” Id. § 3661(c).
The history of the Postal Reorganization Act makes clear that Congress passed that law to “[i]nsulate” management of the Postal Service “from partisan politics . . . by having the Postmaster General responsible to the [Postal Regulatory] Commission, which represents the public interest only, for his conduct of the affairs of the Postal Service.” H.R. Rep. No. 91-1104, 3660-61 (1970). The Act was based on the recommendations of the Kappel Commission, which President Johnson assembled to determine whether the postal system needed to be reorganized in light of the nation’s growing economy and population. President’s Commission on Postal Organization, Towards Postal Excellence v (1968). The Commission recommended a major reorganization of the Postal Service, explaining, among other things, that “[b]ecause postal patronage was once a source of party power, the Post Office is still burdened with an anachronistic postmaster selection system,” and that “[b]ecause [the Postmaster General] presides over what was once a major policy arm of Government, [he] is still a member of the President’s Cabinet.” Id. at 47. It concluded that “[p]ostmaster patronage suggests to many that
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partisan politics plays a part in the operation of a post office,” a notion that “undermines public confidence and employee morale.” Id. at 42.
Thus, a key committee report on the Postal Reorganization Act declared that “[i]f the American public is to have the Postal Service that it expects and deserves, the post office must be taken out of politics and politics out of the post office. Nineteenth Century customs of political patronage have no place in a late 20th Century Postal System.” H.R. Rep. No. 91-1104, supra, at 3654. That goal prompted Congress to create the procedures set forth in § 3661. To shield management of the Postal Service from partisan influence and to ensure that the Postal Service is responsive to the public interest, Congress required that the public be allowed to weigh in before the Postal Service implements changes to the nature of postal services on a substantially nationwide basis.
In this case, the Postal Service failed to notify the Postal Regulatory Commission of any of its recent changes in the nature of postal services before their implementation, and it therefore failed to allow the Commission or the public the opportunity to comment in any meaningful way on these reforms. The Postal Service’s decision to bypass the presribed procedures of § 3661 flies in the face of Congress’s plan in passing the Postal Reorganization Act, which was to buffer Postal Service management from partisan influence and to ensure its accountability to the public. Accordingly, this Court should conclude that the Postal Service’s actions are unlawful.
ARGUMENT I. Since the Nation’s Founding, The Post Office Has Played a Critically Important
Role in American Society. The U.S. Constitution vests Congress with the power to “establish Post Offices and post Roads.” U.S. Const. art. 1, § 8. In The Federalist No. 42, James Madison explained, “The power of establishing post roads must, in every view, be a harmless power and may, perhaps, by
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judicious management become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.” The Federalist No. 42, at 271 (James Madison) (Clinton Rossiter ed., 1961).
This important constitutional power did not lie dormant for long. Just a few years after the Constitution’s ratification, Congress enacted the first substantive federal postal law, creating the U.S. Post Office Department led by “one Postmaster General, who . . . shall provide for carrying the mail of the United States” and who served under the direction of the President. Postal Service Act of 1792, ch. 7, § 3, 1 Stat. 232, 234. The law also established post roads, id. § 1; allowed the Postmaster General to enter into contracts, id. § 2; determined postage rates, id. § 9; and set penalties for “neglecting, detaining, delaying, or secreting letters,” id. § 16. Finally, the law subsidized newspaper circulation, allowing for the distribution of newspapers across the country. Id. §§ 21-22.
Scholars have explained that the development of the postal system “spurred a communications revolution that was as profound in its consequences for American public life as the subsequent revolutions that have come to be associated with the telegraph, the telephone, and the computer.” Richard R. John, Spreading the News: The American Postal System from Franklin to Morse vii (1995). Indeed, the Post Office Department created a central communications system that allowed for a robust exchange of ideas—a system that is core to our democracy. As Alexis de Tocqueville aptly commented in his famous study of American democracy, the post office was a “great link between minds.” Id. at 3.
As the United States continued to develop, the Post Office Department made changes to the postal system to ensure that the post was accessible to everyone, no matter where they lived or how much money they had. For example, in the 1840s, after a study from a congressionally
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appointed Postal Commission found that mail was an essential tool for democracy, Congress altered the postage scale to be based on weight, which greatly reduced the cost of postage stamps and made the post more affordable and accessible. Rural and Urban Origins of the U.S. Postal Service, RISC Report WP-19-007 (Aug. 26, 2019).
The U.S. postal system has also provided an essential forum for some of the nation’s most important debates. During the nineteenth century, abolitionists used the mail to circulate newspapers, books, and pamphlets in an effort “to show the horrors of the institution [of slavery,] . . . to develop sentiment against it . . . [and] to arouse the people to a realization of the evils of the institution.” W. Sherman Savage, Abolitionist Literature in the Mails. 1835-1836, 13 J. Afr. Am. Hist. 150, 150 (1928). The American Anti-Slavery Society specifically stated that it would “circulate unsparingly and extensively Anti-Slavery tracts and periodicals,” and William Lloyd Garrison, editor of the abolitionist paper The Liberator, raised money to “provide for the gratuitous distribution of anti-slavery publications” through the postal system. Wendell Phillips Garrison, 1 William Lloyd Garrison, 1805-1879: The Story of His Life Told by His Children 412, 483 (1885). As the nation had little to no communications technology at the time, it was the postal system that made an extensive debate over slavery possible.
Today, the postal service is as important as ever in maintaining our democracy. In light of COVID-19, millions of Americans hope to vote by mail in the upcoming election, but they need a functioning post office to exercise their fundamental right to vote without endangering their health and the health of others. See Compl. 16, NAACP, No. 1:20-cv-2295 (“States witnessed surges in applications for vote-by-mail ballots for 2020 primary elections, and historical levels of mail-in voting during primaries in 2020. . . . Many states likewise expect a record breaking volume of mail-in voting for the November 2020 election.” (footnotes omitted)).
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In sum, ever since Congress created the Post Office in the early years of the Republic, the postal system has played an important role in maintaining our society and our democracy. To help ensure that it is always able to play that role effectively, Congress has over time put in place important procedural requirements that must be followed before changes can be made to the nature of postal services, as the next Section discusses.
II. Reflecting the Importance of the Postal System’s Role, Congress Has Required the Postal Service to Follow Certain Procedures Whenever It Seeks to Change the Nature of Postal Services in a Way That Will Generally Affect Service on a Substantially Nationwide Basis.
Reflecting the important role the postal system plays, Congress has long sought to ensure that the Postal Service is properly managed, free from partisan influence, and accountable to the public. Most significantly, under the Postal Reorganization Act of 1970, as amended by the Postal Accountability and Enhancement Act of 2006 (PAEA), Congress has required the Postal Service to follow certain procedures that allow the public to weigh in “[w]hen the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis.” 39 U.S.C. § 3661(b). Specifically, when the Postal Service seeks to make such a change, it “shall submit a proposal . . . to the Postal Regulatory Commission requesting an advisory opinion on the change” within “a reasonable time prior to the effective date of such proposal,” id., and the Commission must issue a written opinion after providing “an opportunity for hearing on the record under [the Administrative Procedure Act, 5 U.S.C. §§ 556-57] . . . to the Postal Service, users of the mail, and an officer of the Commission who shall be required to represent the interests of the general public,” 39 U.S.C. § 3661(c). Congress viewed these requirements as critical to the proper provision of postal services, as this Section describes.
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A. By the 1960s, the Post Office Department was suffering from inefficiency because of “inadequate or diffused management authority.” Govs. of U.S. Postal Serv. v. U.S. Postal Rate Comm’n, 654 F.2d 108, 109 (D.C. Cir. 1981). President Johnson assembled the Kappel Commission in 1967 to investigate whether to reorganize the postal system in light of the nation’s growing economy and population, Towards Postal Excellence, supra, at v, and Congress itself devoted significant time and resources to determine how best to address the situation. Indeed, the House Committee on Post Office and Civil Service remarked in 1970 that “rarely has any subject received as much careful and intensive consideration by a committee of the Congress as this committee has given to the very complex and important subject of postal reform.” H.R. Rep. No. 91-1104, supra, at 3651.
Based on these careful deliberations, Congress passed the Postal Reorganization Act of 1970, 39 U.S.C. § 101 et seq., which abolished the Post Office Department and established in its place the U.S. Postal Service and the Postal Rate Commission. Id.; see United Parcel Serv., Inc. v. U.S. Postal Serv., 604 F.2d 1370, 1371 (3d Cir. 1979). The Postal Service is managed by an eleven-member Board of Governors, nine of whom are appointed by the President. The Postmaster General is appointed by those nine governors, and the Deputy Postmaster General is appointed by the nine governors and the Postmaster General. Govs. of USPS, 654 F.2d at 109 (citing 39 U.S.C. § 202(a), 202(c)-(d)).
The Postal Reorganization Act, as intially enacted, created the Postal Rate Commission “as an independent establishment,” id. at 110, to serve as a “partner” to the Postal Service’s Board of Governors, id. at 114. To that end, the Act provided that “[w]hen the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis, it shall submit a proposal, within
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a reasonable time prior to the effective date of such proposal, to the Postal Rate Commission requesting an advisory opinion on the change.” Postal Reorganization Act of 1970, Pub. L. No. 91-375, 84 Stat. 719, 764 (Aug. 12, 1970) (codified at 39 U.S.C. § 3661(b)).
Congress similarly charged the Postal Rate Commission “with the duty of making recommendations to the Governors of the Postal Service with respect to rate, fee and classification matters.” Govs. of USPS, 654 F.2d at 110 (citing 39 U.S.C. §§ 3601, 3622-24). “In considering Postal Service requests for recommended decisions on rates, fees, and classifications . . . [,] the Commission [was] required to accord to the Postal Service, users of the mails, and an officer of the Commission representing the public, an opportunity for a hearing,” and the Commission would then provide a written recommendation for the Postal Service. Id.
In 2006, Congress enacted the PAEA. Carlson v. Postal Regulatory Comm’n, 938 F.3d 337, 340 (D.C. Cir. 2019); see Compl. 14, Washington v. Trump, No. 1:20-3127 (E.D. Wash. Aug. 18, 2020). The PAEA “reconstituted the Postal Rate Commission as the Postal Regulatory Commission” and “strengthened the role of the Commission.” Carlson, 938 F.3d at 340 (emphasis added). As amended by the PAEA, the Postal Reorganization Act requires the Postal Service to follow the same procedures it initially required for nationwide changes in the nature of postal services, except that the Postal Service must now seek a written opinion from the Postal Regulatory Commission, rather than the Postal Rate Commission. 39 U.S.C. § 3661(b); see id. (“[The Postal Service] shall submit a proposal, within a reasonable time prior to the effective date of such proposal, to the Postal Regulatory Commission requesting an advisory opinion on the change.”). The PAEA “incorporates the APA as the framework for review” of proposed rate changes as well. Carlson, 938 F.3d at 343 (citing 39 U.S.C. § 3663, and GameFly, Inc. v. Postal Regulatory Comm’n, 704 F.3d 145, 148 (D.C. Cir. 2013)).
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B. According to the House Committee on Post Office and Civil Service, which drafted the Postal Reorgnization Act, Congress’s plan in making these changes was to “convert the Post Office Department into an independent establishment in the executive branch of the government freed from direct political pressures.” H.R. Rep. No. 91-1104, supra, at 3650. Indeed, the Supreme Court has recognized that the Act “was adopted to increase the efficiency of the Postal Service and reduce political influences on its operations.” U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 740 (2004).
The House Committee drafted the Postal Reorganization Act based on the findings of the Kappel Commission, H.R. Rep. No. 91-1104, supra, at 3654, which noted, among other things, that “[b]ecause postal patronage was once a source of party power, the Post Office is still burdened with an anachronistic postmaster selection system,” Towards Postal Excellence, supra, at 47. The Commission explained that “[b]ecause he presides over what was once a major policy arm of Government, the Postmaster General is still a member of the President’s Cabinet.” Id. According to the Commission, “[p]ostmaster patronage suggests to many that partisan politics plays a part in the operation of a post office. Warranted or not, the suspicion undermines public confidence and employee morale.” Id. at 42.
Thus, Congress passed the Postal Reorganization Act to “[i]nsulate” management of the Postal Service “from partisan politics . . . by having the Postmaster General responsible to the [Postal Regulatory] Commission, which represents the public interest only, for his conduct of the affairs of the Postal Service.” H.R. Rep. No. 91-1104, supra, at 3660-61. The House Committee Report explained that the Postal Regulatory Commission in particular “provides an invaluable buffer between the management of the Postal Service and the possible influence of partisan politics.” Id. at 3660. Indeed, the Report emphasized that “[i]f the American public is to have
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the Postal Service that it expects and deserves, the post office must be taken out of politics and politics out of the post office. Nineteenth Century customs of political patronage have no place in a late 20th Century Postal System.” Id. at 3654; see Pres. Richard Nixon, Remarks upon Signing the Postal Reorganization Act (Aug. 12, 1970) (“There is no Republican way or Democratic way to deliver the mail. There is only the right way and that is what this occasion is all about.”).
In describing the portion of the Act establishing “procedures for changes in postal services” in particular, the Committee Report emphasized that “[t]he Postal Service is—first, last and always—a public service.” H.R. Rep. No. 91-1104, supra, at 3668. The Report stated that under the Act, therefore, the Postal Service must “seek out the needs and desires of its present and potential customers—the American public,” and that the Act “provides significant assurance that the postal management will in fact be responsive to the people to a greater degree than has heretofore been known.” Id. The Report described how the Act “contains specific provisions requiring justification and review of changes in service,” and that those provisions compel the Postal Service, when seeking to make those changes in service, to “follow[] procedures comparable to those for proposed rate changes.” Id.; cf. UPS, 604 F.2d at 1377 (“The Act grants the Governors [of the Postal Service] the exclusive and nondelegable authority to establish ‘classes of mail’ and ‘rates of postage’, but only after the Governors have received a recommended decision from the Postal Rate Commission.” (citing 39 U.S.C. §§ 402, 3621)).
The Report concluded that those procedures requiring notice and a public hearing “represent significant innovations that should materially enhance the responsiveness of the Postal Service to the American public.” Id.; see Buchanan v. U.S. Postal Serv., 508 F.2d 259, 263 n.6 (5th Cir. 1975) (“[T]he procedures mandated by 3661 are sufficiently elaborate to amount to a
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significant impediment in the path of the decision making process of the Postal Service.”). Ultimately, Congress largely adopted the House Committee’s version of what became § 3661, see Conf. Rep. No. 91-1363, 91st Cong., 2d Sess., at 3719 (Aug. 3, 1970), and, as explained above, Congress did not alter the required procedures in § 3661 when it passed the PAEA in 2006, except to replace the term “Postal Rate Commission” with “Postal Regulatory Commission.” Postal Accountability and Enhancement Act, Pub. L. No. 109-435, 120 Stat. 3198, § 604(e)-(f).
III. By Failing to Request an Opinion from the Postal Regulatory Commission Before Making Its Recent Changes, the Postal Service Has Violated Federal Law.
The Postal Service’s recent changes are unlawful because they were made without complying with these important requirements that Congress put in place to ensure proper management of the nation’s mail delivery. For example, without seeking input on the matter, the Postal Service “prohibited postal workers from making the extra trips necessary to ensure that no mail is left sitting in postal facilities at the end of the day.” Compl. 23, New York, No. 1:20-cv2340. Likewise, the Postal Service “prohibited network, plant, and delivery workers from making late trips—i.e., from embarking on their trip any later than the scheduled time.” Id. In addition, “671 machines used by the Postal Service to organize and sort letters or other pieces of mail have been or will be removed from dozens of cities across America[,] . . . effectively decommission[ing] 10 percent of the Postal Service’s sorting machines.” Compl. 18-19, Washington, No. 1:20-cv-3127. These changes and others to the Postal Service’s central operations have allegedly “resulted in unreliable service and widespread delays,” Compl. 2, NAACP, No. 1:20-cv-2295, and “there have been widespread reports of mail piling up in
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regional distribution centers and post offices around the country, and of customers experiencing substantial delays and disruptions in mail service,” id. at 19.
If these changes continue to cause widespread delays, they could threaten the reliability of mail-in voting, Compl. 61, New York, No. 1:20-cv-2340—an option that at least some Americans have used to cast their ballots since the American Revolution, see Alex Seitz-Wald, How Do You Know Voting by Mail Works? The U.S. Military’s Done It Since the Civil War, NBC News (Apr. 19, 2020), https://www.nbcnews.com/politics/2020-election/how-do-youknow-voting-mail-works-u-s-military-n1186926—with enormous implications for our country and our democracy.
These changes thus have already affected and will continue to “generally affect service on a nationwide or substantially nationwide basis,” 39 U.S.C. § 3661(b), and the Postal Service made them without so much as notifying the Postal Regulatory Commission, much less having received a written opinion from the Commission following the completion of a public hearing.
The government may argue that these changes are not sufficiently significant to require public comment, but that is plainly wrong. Because Congress was seeking to ensure that there would be public accountability with regard to management of the Postal Service, it required that these procedures be followed with respect to any changes that “generally affect service on a nationwide or substantially nationwide basis,” as these changes plainly do.
Significantly, Congress required the Postal Service to follow comparable procedures for even seemingly minor changes in postal rates or mailing classifications, see H.R. Rep. No. 911104, supra, at 3668 (under the Postal Reorganization Act, “[f]ollowing procedures comparable to those for proposed rate changes, operating management would submit proposals relating to changes in service to the rate board with public notice and opportunity for public comment”
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(emphasis added)), and multiple courts have determined that the procedures governing those changes apply broadly, see, e.g., Carlson, 938 F.3d at 343; UPS, 604 F.2d at 1380. Indeed, the D.C. Circuit has held that the Postal Service needed to submit a proposed 5-cent increase for the price of stamps to the Postal Regulatory Commission before it could lawfully implement that change, recognizing that “Congress directed the Commission to serve as more than just a rubber stamp of the Postal Service’s proposed rate increases.” Carlson, 938 F.3d at 351; see id. (“The PAEA establishes a robust rulemaking process for the Commission, subjecting rate-change proposals to the deliberative and participatory process of notice-and-comment rulemaking under the APA.”). Likewise, the Third Circuit has emphasized that “any proposal which would effect a change in mail classification or a rate, including a test or experiment embodying those features, must be submitted to the Rate Commission, no matter how experimental, temporary, or limited in scope the change.” UPS, 604 F.2d at 1380 (emphasis added).
To be sure, the Fifth Circuit has suggested that § 3661 applies only when the Postal Service seeks to make “changes of significance” that will have a “meaningful impact” on postal services. See Buchanan, 508 F.2d at 262-63. But that notion is contrary to § 3661’s plain text, which states that the statute applies any time “the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis.” 39 U.S.C. § 3661(b) (emphasis added). This statutory language is broad, reflecting Congress’s plan to ensure that the Postal Regulatory Commission and the public could meaningfully weigh in on any prospective changes to postal services that would have a substantially nationwide impact.
In any event, the postal changes at issue in this case would satisfy even the Fifth Circuit’s heightened standard because they are significant, and they have had, and will continue to have, a
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meaningful impact on postal services on a nationwide or substantially nationwide basis. As discussed above, the Postal Service’s changes have already had a major impact on the delivery of the mail with attendant consequences for people throughout the country. Moreover, the changes allegedly “will hinder the delivery of mail ballots and ballot applications” for the November election. Compl. 61, New York, No. 1:20-cv-2340. Changes of this magnitude plainly cannot be made without input from the public and without following the requirements set out in federal law.
* * * In sum, the Postal Service’s recent changes not only violated the plain terms of § 3661 but also cannot be reconciled with Congress’s plan in passing the Postal Reorganization Act. Congress passed that legislation not to impose modest requirements on the Postal Service but to provide a substantial buffer between management of the Postal Service and partisan politics, as well as to ensure accountability to the public. Here, the Postal Service has implemented significant institutional changes that have already affected service nationwide without seeking the requisite input from the independent Postal Regulatory Commission or the American public. These changes exemplify the kind of partisan decisionmaking and lack of public accountability that Congress designed the Postal Reorganization Act, as amended by the PAEA, and the Postal Regulatory Commission to prevent. This Court should therefore hold that the Postal Service and Postmaster General violated § 3661.
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CONCLUSION For the foregoing reasons, this Court should grant plaintiffs’ motion for a preliminary injunction.
Respectfully submitted, /s/ Brianne J. Gorod Elizabeth B. Wydra (DC Bar No. 483298) Brianne J. Gorod (DC Bar No. 982075) Dayna J. Zolle (DC Bar No. 1672633) CONSTITUTIONAL ACCOUNTABILITY
CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 elizabeth@theusconstitution.org brianne@theusconstitution.org dayna@theusconstitution.org Counsel for Amici Curiae Dated: September 8, 2020
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Blumenthal, Richard Senator of Connecticut
Booker, Cory A. Senator of New Jersey
Brown, Sherrod Senator of Ohio
Carper, Tom Senator of Delaware
Hirono, Mazie K. Senator of Hawaii
Klobuchar, Amy Senator of Minnesota
Markey, Edward J. Senator of Massachusetts
Merkley, Jeffrey A. Senator of Oregon
Reed, Jack Senator of Rhode Island
Sanders, Bernard Senator of Vermont
Shaheen, Jeanne Senator of New Hampshire
Warren, Elizabeth Senator of Massachusetts
Whitehouse, Sheldon Senator of Rhode Island
Wyden, Ron Senator of Oregon

APPENDIX LIST OF AMICI

1A

Case 1:20-cv-02340-EGS Document 21-1 Filed 09/08/20 Page 23 of 23

CERTIFICATE OF SERVICE

I hereby certify that on September 8, 2020, the foregoing document was filed with the Clerk

of the Court, using the CM/ECF system, causing it to be served on all counsel of record.

Dated: September 8, 2020

/s/ Brianne J. Gorod Brianne J. Gorod

 
 Case 1:20-cv-02340-EGS Document 51 Filed 09/27/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF NEW YORK, et al., Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

No. 20-cv-2340(EGS)

ORDER For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED the Plaintiffs’ Motion for Preliminary Injunction is GRANTED; and it is further ORDERED that a Preliminary Injunction is hereby entered against Defendants; and it is further ORDERED that pursuant to the Order, Defendants are HEREBY ENJOINED from enforcing the Postal Policy Changes; and it is further ORDERED that any request to stay this Order pending appeal will be denied for the reasons stated in the accompanying Memorandum Opinion.

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SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge September 27, 2020

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF NEW YORK, et al., Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

No. 20-cv-2340(EGS)

MEMORANDUM OPINION I. Introduction
Plaintiffs, the States of New York, Hawaii, and New Jersey; the City of New York; and the City and County of San Francisco filed this lawsuit against Defendants Donald J. Trump, in his official capacity as President of the United States; Louis DeJoy (“Mr. DeJoy”), in his official capacity as Postmaster General of the United States; and the United States Postal Service (“USPS” or (“Postal Service”) alleging the following claims: (1) Ultra Vires Agency Action—Postal Accountability and Enhancement Act; (2) Ultra Vires Agency Action—Postal Reorganization Act; and (3) violation of the Elections Clause of the United States Constitution. Plaintiffs seek a preliminary injunction with regard to their Postal Accountability and Enhancement Act claim. Upon consideration of the Plaintiffs’ motion, the response, and
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reply thereto, the applicable law, and the entire record, the Court GRANTS Plaintiffs’ motion. II. Background
A. Statutory and Regulatory Framework In the Postal Reorganization Act (“PRA”), Public Law 91-375, 84 Stat. 719 (Aug. 12, 1970), Congress replaced the Post Office Department with the United States Postal Service as “an independent establishment of the executive branch of the Government of the United States, under the direction of a Board of Governors, with the Postmaster General as its chief executive officer.” 39 C.F.R. § 1.1. The PRA also created an independent oversight body for the USPS, the Postal Rate Commission. 39 U.S.C. § 501. Congress passed the PRA to “[i]nsulate” the management of the USPS “from partisan politics . . . by having the Postmaster General responsible to the [Postal Rate] Commission, which represents the public interest only, for his conduct of the affairs of the Postal Service.” H.R. Rep. No. 91-1104, 3660-61 (1970). In the Postal Accountability and Enhancement Act (“PAEA”), Pub. L. No. 109-435, 120 Stat. 3198 (Dec. 20, 2006) (codified at 39 U.S.C. § 3600 et seq.), Congress replaced the Postal Rate Commission with the Postal Regulatory Commission (“PRC” or “Commission”) and “strengthened its role.” Carlson v. Postal Regul. Comm’n, 938 F.3d 337, 340 (D.C. Cir. 2019).
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The USPS is responsible for “develop[ing] and promot[ing] adequate and efficient postal services.” 39 U.S.C. § 3661(a). “When the Postal Service determines that there should be a change in the nature of postal services [that] will generally affect service on a nationwide or substantially nationwide basis,” it must “submit a proposal, within a reasonable time prior to the effective date of such proposal, to the Postal Regulatory Commission requesting an advisory opinion on the change.” Id. § 3661(b). This provision was enacted in the PRA, and the only change made in the PAEA was to replace the original “Postal Rate Commission” with the “Postal Regulatory Commission.”
Following the submission of a proposal, “[t]he Commission shall not issue its opinion on any proposal until an opportunity for hearing on the record under [the Administrative Procedure Act] has been accorded the Postal Service, users of the mail, and an officer of the Commission who shall be required to represent the interests of the general public. The opinion shall be in writing and shall include a certification by each Commissioner agreeing with the opinion that in his judgment the opinion conforms to the policies established under this title.” 39 U.S.C. § 3661(c).
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B. Factual Background 1. The COVID-19 Pandemic
Plaintiffs assert that the COVID-19 pandemic has increased reliance on mail delivered by the USPS. See Mem. Supp. Mot. Prelim. Inj. (“Mot.”), ECF No. 12-1 at 8.1 According to Plaintiffs, ‘“[b]ecause COVID-19 is ‘primarily spread through person-to-person contact,’ Ku[2] Decl.[, ECF No. 12-13] ¶ 13, state and local governments, including Plaintiffs here, have undertaken serious efforts to minimize in-person gatherings.” Id. Plaintiffs further state that “some . . . have transformed their plans for the November 2020 election to facilitate voting by mail.” Id. (citing Adinaro3 Decl., ECF No. 12-4 ¶ 9; Kellner4 Decl., ECF No. 12-12 ¶¶ 16–17; Ku Decl., ECF No. 12-13 ¶¶ 8–10; P.L. 2020, ch.72 (N.J. August 28, 2020) (providing that New Jersey’s November General Election is to be conducted primarily by vote-by-mail in part to reduce the risk of community spread of COVID-19 at polling locations)). Those Plaintiffs that have
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 Leighton Ku is a Professor of Public Health Policy and Management and Director of the Center for Health Policy Research at the Milken Institute School of Public Health, George Washington University. 3 David Adinaro is the Deputy Commissioner for Public Health Services for the New Jersey Department of Health. 4 Douglas Kellner is the Co-Chair of the New York State Board of Elections.
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“mail-based election systems” in place “seek to preserve [them] during a pandemic.” Id. (citing Henricks5 Decl. ¶ 3, ECF No. 129; Kaohu6 Decl., ECF No. 12-11 ¶ 3; Takahashi7 Decl., ECF No. 1219 ¶ 3.) Plaintiffs state they “have also expended time, money, and resources to educate the public about social distancing, see Adinaro Decl., ECF No. 12-4 ¶ 8, and to continue to meet their legal obligations to their residents and to administer public benefits programs by increased reliance on U.S. mail, Banks8 Decl., ECF No. 12-5 ¶¶ 4–7, 11, 14; Newton9 Decl., ECF No. 12-15 ¶ 9.” Id.
2. USPS Postal Policy Changes In June and July 2020, the USPS announced and implemented four changes (collectively, “Postal Policy Changes”) to how it collects, processes and delivers mail. First, on June 17, 2020, the USPS announced that it would be removing 671 high-speed sorting machines nationwide “over the next several months.” Pls.’ Ex. 17, ECF No. 12-20 at 2-4. Second, on July 10, 2020, the USPS announced an “operational pivot” to make “immediate, lasting, and impactful
5 Jon Henricks is the County Clerk for the County of Hawaii. 6 Kathy Kaohu is the County Clerk for the County of Maui. 7 Glen Takahashi is the City Clerk for the City and County of Honolulu. 8 Steven Banks is the Commissioner of the New York City Department of Social Services. 9 Jack Newton is the Director of the Public Benefits Unit as Bronx Legal Services.
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changes in our operations and culture.” Pls.’ Ex. 21, ECF No. 12-24 at 2. These changes included prohibiting “late trips” and “extra trips.” Id. “[I]t has long been typical for postal drivers to depart for post offices or delivery points a short period after the prescribed time if needed to ensure that all the mail for that truck would be loaded before departure.” Coradi10 Decl., ECF No. 12-34 ¶ 13. “Extra” trips are nonscheduled delivery trips, which ensure that the agency can maintain the necessary flexibility to timely deliver mail to 160 million addresses for six days a week, id. ¶¶ 5, 14; and have long allowed the agency to account for daily fluctuations in mail volume, processing malfunctions or errors, and other disruptions, id. ¶¶ 13-4. Late trips and extra trips “are needed adjustments to adequately administer a system responsible for delivering over 470 million pieces of mail per day. They are features of the postal system, not bugs.” Id. ¶ 14.
The USPS knew that prohibiting these trips would result in delayed mail delivery: “One aspect of these changes that may be difficult for employees is that—temporarily—we may see mail left behind or mail on the workroom floor or docks (in P&DCs), which
10 Peter Coradi has been the National Business Agent “A” for the Clerk Division, New York Region of the American Postal Workers Union since November 2001. Clerks in the Clerk Division are responsible for, among other things, mail processing, bulk mail entry, retail windows, and call centers.
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is not typical.” Pls.’ Ex. 21, ECF No. 12-24 at 2. By August 13, 2020, the USPS had reduced the number of late trips by 71 percent. Pls.’ Ex. 19, ECF No. 12-22 at 2. Defendants have clarified that late or extra trips are not “banned”; however, they acknowledge that they continue “at a reduced level.” Suppl. Cintron Decl., ECF No. 39-1 ¶ 4. On September 21, 2020, USPS also issued “Operational Instructions” providing that “transportation, in the form of late or extra trips that are reasonably necessary to complete timely mail delivery, is not to be unreasonably restricted or prohibited. Managers are authorized to use their best business judgment to meet our service commitments.” See Ex. 1 to Notice Suppl. Material, ECF No. 50-1 at 4.
Third, the USPS announced another “initiative” that prohibited mail carriers in certain cities from spending time in the morning sorting mail so they could “leave for the street earlier.” Pls.’ Ex. 22, ECF No. 12-25 at 2. This meant that carriers were being ordered to not deliver mail that had arrived overnight, but rather sort it in the afternoon, meaning that it would not be delivered until the next day. Id. On August 24, 2020, Mr. DeJoy testified that he stopped this pilot project. See House Oversight and Reform Committee Hearing Tr. (“House Committee Hearing”), Aug. 24, 2020, Defs.’ Ex. 14, ECF No. 30-3 at 449.
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Fourth, on or around July 29, 2020, the USPS General Counsel informed 46 states and the District of Columbia that if the states did not pay First Class postage on ballots sent to voters, there would be a risk that voters would not receive their ballots in time to return them by mail. See U.S. Postal Service letters to states, Wash. Post (Aug. 17, 2020), https://contextcdn.washingtonpost.com/notes/prod/default/documents/d1b752f9f8c9-4c18-b548-4eb9668c672a/note/36253644-7029-4dd3-bd1cf824054400c2.11 This was a change to the USPS policy of treating election mail and political mail mailed as marketing mail on an expedited First-Class basis. Pls.’ Ex. 30, 12-33 at 12.
It is undisputed that the USPS did not seek an advisory opinion pursuant to Section 3661(b) from the PRC prior to implementing these changes.
3. USPS Postal Policy Changes Have Led to Nationwide Delays and Continue to Have a Nationwide Impact
USPS records indicate that nationally, on-time delivery of First-Class Mail began to decline in late June 2020, going from roughly 90 to 94 percent prior to the implementation of the Postal Policy changes to 82 percent in early August. Pls.’ Ex. 28, ECF No. 12-31 at 11. In the August 13, 2020 email to all
11 The Court takes judicial notice of the letters from the USPS to 46 states and the District of Columbia. Fed. R. Evid. 201(b)(2).
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USPS employees, Mr. DeJoy acknowledged that “this transformative initiative has had unintended consequences that impacted our overall service levels.” Pls.’ Ex. 19, ECF No. 12-22 at 2; see also House Committee Hearing, Defs.’ Ex. 14, ECF No. 30-3 at 455 (Mr. DeJoy testifying that mitigating late trips and extra trips “was not expected to have the impact it had for the duration of the period that it had”).
On August 18, 2020, Mr. DeJoy issued a statement that the USPS would be suspending “some longstanding operational initiatives—efforts that predate my arrival at the Postal Service—that have been raised as areas of concern as the nation prepares to hold an election in the midst of a devastating pandemic.” Pls.’ Ex. 20, ECF No. 12-23 at 2. Specifically, Mr. DeJoy stated that: (1) “[r]etail hours at Post Offices will not change”; (2) “[m]ail processing equipment and blue collection boxes will remain where they are”; (3) “[n]o mail processing facilities will be closed”; (4) “overtime has, and will continue to be, approved as needed.” Id.; see also House Committee Hearing, ECF No. 30-3 at 484 (Mr. DeJoy testifying that he halted the pilot program, the removal of collection boxes, reducing hours at postal retail centers, and the removal of flat and mail sorting machines).
Except for “mail processing equipment,” the suspension did not apply to the rest of the Postal Policy Changes at issue
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here. See also Senate Homeland Security and Government Affairs Committee Hearing (“Senate Committee Hearing”), Aug. 21, 2020, Defs.’ Ex. 5, ECF No. 30-2 at 107 (Mr. DeJoy stating that the policy of mitigating extra trips would not be suspended); id. at 108 (Mr. DeJoy stating that none of the mail processors that had been removed would be brought back).
With regard to election mail, Mr. DeJoy testified before the Senate Committee that states would not have to use FirstClass Mail for election mail. Id. at 110. However, in his testimony before the House Committee, he testified that states and election boards should follow the recommendation in letters from the USPS General Counsel to the states and the District of Columbia that election officials use First-Class Mail to mail ballots to voters. House Committee Hearing, Defs.’ Ex. 14, ECF No. 30-3 at 433; see also id. at 394 (Mr. DeJoy testifying that the USPS “will try to fulfill” “objectives” for “normal processing procedures plus enhanced procedures” to ensure the ballots get delivered in time).
USPS records indicate that nationally, on-time delivery of First-Class Mail as of August 22, 2020 was slightly above 85 percent. Pls.’ Ex. 28, ECF No. 12-31 at 11.
B. Procedural Background Plaintiffs filed this lawsuit on August 25, 2020. On September 2, 2020, they filed a motion for a preliminary
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injunction, which requests that the Court enjoin the defendants from enforcing the Postal Policy Changes. See Mot., ECF No. 121. The defendants filed their opposition on September 11, 2020. See Defs.’ Opp’n Mot. Prelim. Inj. (“Defs.’ Opp’n”), ECF No. 30. The Plaintiffs filed their reply brief on September 16, 2020. See Pls.’ Reply (“Reply”), ECF No. 40. The motion is ripe for the Court’s consideration. III. Standard of Review
“A plaintiff seeking a preliminary injunction must establish [1] that [they are] likely to succeed on the merits, [2] that [they are] likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (alteration in original) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). Where the federal government is the opposing party, the balance of equities and public interest factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch,
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451 U.S. 390, 395 (1981). In this Circuit, the four factors have typically been evaluated on a “sliding scale,” such that if “the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009).
In the wake of the Supreme Court’s decision in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), “the D.C. Circuit has suggested that a positive showing on all four preliminary injunction factors may be required.” Holmes v. FEC, 71 F. Supp. 3d 178, 183 n.4 (D.D.C. 2014); see also Sherley, 644 F.3d at 393 (“[W]e read Winter at least to suggest if not to hold that a likelihood of success is an independent, freestanding requirement for a preliminary injunction.”) (quotation marks omitted). Nonetheless, “the Circuit has had no occasion to decide this question because it has not yet encountered a postWinter case where a preliminary injunction motion survived the less rigorous sliding-scale analysis.” ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C. 2014). IV. Analysis
Plaintiffs argue that they are likely to succeed on the merits of their Section 3661 claim because the USPS “failed to submit the Postal Policy Changes to the Postal Regulatory Commission in advance for an advisory opinion as required under
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39 U.S.C. § 3661(b) (and the Commission’s rules), despite their significant effect on postal service nationwide,” Mot., ECF No. 12-1 at 16; and that this Court has the authority to review the Postal Policy changes as ultra vires agency action, id.
Defendants respond that Plaintiffs lack Article III standing, that district courts lack subject matter jurisdiction over Section 3661 claims, and that Plaintiffs’ claim does not satisfy the requirements for ultra vires review. Defs.’ Opp’n, ECF No. 30 at 32, 35, 39.
A. Plaintiffs Are Likely To Succeed On The Merits Of Their 39 U.S.C. § 3661(b) Claim 1. Plaintiffs Likely Have Standing To Bring This Challenge
To establish standing, “a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “Standing to seek . . . forward-looking injunctive relief requires [Plaintiff] to show [that it] is suffering an ongoing injury or faces immediate injury. For a future injury, that means submitting evidence showing that there is a substantial risk that the harm will recur.” Narragansett Indian Tribal Historic Preservation Office v. FERC, 949 F.3d 8,
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13 (D.C. Cir. 2020) (internal quotation marks, citations, and alterations in original omitted).
“The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561 (citations omitted). “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id.
Defendants contend that Plaintiffs lack standing for two reasons.12 First, they cannot show a causal connection because they have “produce[d] no evidence that any delay in mail delivery will come from the reduction in capacity of mail processing machines,” noting that the “mail processing machines are still only being utilized at a sixty-five percent rate . . . which means that there is ample extra capacity.” Defs.’ Opp’n, ECF No. 30 at 33. However, Plaintiffs have provided evidence that the elimination of the machines has and will continue to
12 Defendants also argue that plaintiffs lack standing because they allege an injury by the “expedited to Street/Afternoon Sortation” initiative, which has been suspended. Defs. Opp’n, ECF No. 30 at 26. Plaintiffs respond—and the Court agrees—that defendants “may not defeat [p]laintiffs’ standing by voluntarily suspending just one of several offending policies, especially where there is no prohibition on that policy’s resumption.” Reply, ECF No. 40 at 13.
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cause delayed mail. See Coradi Decl., ECF No. 12-31 ¶ 9 (“[E]mployees report astonishing amounts of delayed mail in facilities that I have visited multiple times . . . I have never heard anything like it in my 36 years serving the U.S. Postal Service and its employees.”); id. ¶ 16 (“With fewer sorting machines for letter mail and flat mail, Postal employees must adapt the remaining machines to accommodate more volume or sort letter and flat mail manually.”).
Second, Defendants concede that the policy change regarding extra and late trips resulted in delayed mail in the past, but argue that “Plaintiffs cannot show that USPS’s activities are harming Plaintiffs now and in the future,” stating that “while there ‘was a temporary decline in meeting service standards’ in mid-July” that decline was addressed and “‘service performance is rapidly returning to early July levels.’” Defs.’ Opp’n, ECF No. 30 at 33. Defendants also argue that Plaintiffs’ complaint about election mail delays are entirely speculative, noting “the enormous efforts that USPS has put into place (and will continue or supplement through the Election) to ensure that ballots are timely delivered.” Id. at 34. Defendants also argue that Plaintiffs have not established that the decline was due to reducing unnecessary trips rather than staffing shortages due to COVID-19. Id. at 34.
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However, Plaintiffs have provided evidence that reducing extra or late trips will necessarily cause delays in the delivery of mail. See Grimmer13 Decl., ECF No. 40-3 ¶ 10 (decrease in the number of extra or late trips will delay the delivery of letters); Goldway14 Decl., ECF No. 40-5 ¶ 31 (“It is my opinion, based on my two decades of experience reviewing Postal Service operations, that eliminating local flexibility and requiring rigid adherence to transportation scheduled would negatively impact service performance.”). Moreover, Plaintiffs have provided proof that delays, both locally and nationally, have continued. See Failure to Deliver, U.S. Senate Committee on Homeland Security and Governmental Affairs, Minority Staff Report, ECF No. 40-9 at 3 (finding that nationwide during the second week of August, “85 million more deliveries were late in a single week compared to what the late deliveries would have been that week under on-time delivery rates before the changes”); id. (finding that “[s]ome parts of the country saw on-time delivery drop by 15-20 percentage points in the weeks following Mr. DeJoy’s July 2020 changes”). USPS’s own data shows
13 Justin Grimmer, a Professor of Political Science at Stanford University, made a preliminary assessment of the impact of the policy change limiting the number of extra and late trips based on the USPS August 31, 2020 powerpoint. 14 Ruth Goldway served on the U.S. Postal Regulatory Commission from 1998 to 2015, having been appointed and reappointed by Presidents Clinton, George W. Bush, and Obama.
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declines in on-time delivery of First-Class Mail continuing into August. Ex. 37, ECF No. 40-8. Moreover, in an August 13, 2020 email to all USPS employees, Mr. DeJoy acknowledged that “this transformative initiative has had unintended consequences that impacted our overall service levels.” Pls.’ Ex. 19, ECF No. 1222 at 2. Finally, Plaintiffs have rebutted Defendants’ argument that the decline was due to reducing unnecessary trips rather than staffing shortages due to COVID-19 by pointing out that the sharp decline in on-time deliveries occurred in July and August 2020, months after COVID-19 infections began to spike in the United States in March 2020. Reply, ECF No. 40 at 11.
Accordingly, Plaintiffs have shown that there is a substantial likelihood that the on-going non-speculative harms they allege caused by mail delays are “fairly traceable” to the Postal Policy Changes. Lujan, 504 U.S. at 560.
2. This Court Likely Has Subject Matter Jurisdiction Over The Section 3661 Claim
Defendants contend that this Court lacks subject matter jurisdiction over “complaints regarding” Section 3661 because such complaints must first be made to the PRC and then appealed to the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”). Defs.’ Opp’n, ECF No. 30 at 35. The statutory scheme provides as follows. 39 U.S.C. § 409(a) provides that “[e]xcept as otherwise provided in this title, the
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United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service.” One of the exceptions to this original jurisdiction is 39 U.S.C. § 3662, which provides that “[a]ny interested person . . . who believe[s] the Postal Service is not operating in conformance with the requirements of a provision of . . . this chapter (or regulations promulgated under any of these provisions) may lodge a complaint with the Postal Regulatory Commission . . . .” Section 3662(b) requires the PRC to respond to the complaint within 90 days and that if a complaint is not timely responded to, a petition for review may be filed with the D.C. Circuit, which also has jurisdiction to review final orders or decisions of the PRC.
Plaintiffs’ complaint alleges a procedural violation—that USPS failed to comply with the requirement that “[w]hen the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis, it shall submit a proposal, within a reasonable time prior to the effective date of such proposal, to the Postal Regulatory commission requesting an advisory opinion on the change.” 39 U.S.C. § 3661. Section 3661(c) requires that the opinion shall not be issued until there is opportunity for notice and comment under applicable provisions of the Administrative Procedure Act.
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Defendants contend that “[c]ourts have repeatedly held that 19 U.S.C. §§ 3662 and 3663 constitute the exclusive jurisdictional remedy for complaints about postal services that fall within the statutory provisions specifically identified in section 3662.” Defs.’ Opp’n, ECF No. 30 at 36. However, Defendants have provided no mandatory authority to support their assertion that Sections 3662 and 3663 constitute the exclusive jurisdictional remedy for a claim that the USPS has failed to comply with the procedural requirements of Section 3661.
“Whether a statute is intended to preclude initial judicial review is determined by the statute’s language, structure, and purpose, its legislative history, and whether the claims can be afforded meaningful review.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 307 (1994) (internal citation omitted). The language of the statute is broad: “[a]ny interested person . . . who believe[s] the Postal Service is not operating in conformance with the requirements of a provision of . . . this chapter (or regulations promulgated under any of these provisions) may lodge a complaint with the Postal Regulatory Commission . . . .” 39 U.S.C. § 3662. This could certainly be read to mean that the failure of the USPS to comply with the procedural requirement set for in Section 3661 would be encompassed by Section 3662. Plaintiff argues that the use of the permissive “may” in Section 3662 coupled with the mandatory
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phrasing “shall” in Section 3662(c) shows Congress did not intend to limit jurisdiction over Section 3661 claims. Reply, ECF No. 40 at 14. The statute consistently uses the word “may” when setting forth the procedure for filing complaints and for seeking appellate review of the PRC’s determination (or failure to make a determination): any interested person “may” lodge a complaint with the PRC, and if the interested person is unsatisfied with the response or does not receive a timely response, they “may” file a petition with the D.C. Circuit. 39 U.S.C. §§ 3662(a), 3663. The use of the permissive “may” coupled with the use of the mandatory “shall” suggests that Sections 3662(a) and 3663 were not intended to be the exclusive avenue for bringing a procedural challenge to the USPS’s failure to comply with Section 3661. See Bennett v. Panama Canal Co., 475 F.2d 1280, 1828 (D.C. Cir. 1973) (“[T]he permissive interpretation is conclusively proven to be correct [together with the particular legislative history] by the fact that when in the same statute Congress intended a mandatory direction it used the auxiliary ‘shall’ not ‘may’-a contrast which is generally significant . . . .”). This interpretation is strengthened because the statute expressly provides that this Court has original jurisdiction “over all actions brought by or against the Postal Service” unless “otherwise provided in [title 39].” 39 U.S.C. § 409(a).
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The availability of judicial review for the USPS’s failure to comply with the procedural requirements in Section 3661 is consistent with the legislative history of the PRA. In the discussion of the section of the PRA that established the “procedures for changes in postal service,” the House Committee Report states the “[t]he postal service is—first, last, and always—a public service” and that the PRA “require[s] [Postal Services management] to seek out the needs and desires of its present and potential customers—the American public.” H.R. Rep. No. 91-1104 at 3668. The Committee Report describes provisions in the act that “contain[] specific provisions requiring justification and review of changes in service.” Id.; see also Buchanan v. U.S. Postal Serv., 508 F.2d 259, 263 n.6 (5th Cir. 1975) (“[T]he procedures mandated by [Section] 3661 are sufficiently elaborate to amount to a significant impediment in the path of the decision-making process of the Postal Service.”).
The Court must also consider whether the claim may be reviewed because there is no other meaningful or adequate avenue for judicial review. See Thunder Basin Coal Co., 510 U.S. at 307. District court jurisdiction may not be implicitly precluded based on consideration of the following factors: (1) if “‘a finding of preclusion could foreclose all meaningful judicial review’”; (2) if the claim is “‘wholly collateral to a statute’s
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review provisions’”; and (3) if the claims are “‘outside the agency’s expertise’” to discern “whether the particular claims at issue fall outside an overarching congressional design.”15 Jaresky v. SEC, 803 F.3d 9, 17 (D.D.C. 2015) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 48990 (2010). Mindful of the fact that the 90-day window for the PRC to respond to a complaint brought pursuant to Section 3661, Defendants contend that it does not matter that the PRC cannot provide immediate relief because eventual relief is sufficient as a matter of law. Defs.’ Opp’n, ECF No. 30 at 39 n.11. However, the authority upon which Defendants rely, American Federation of Government Employees, AFL-CIO v. Trump, 929 F.3d 748 (D.D.C. 2019), is inapposite. There, the court held that meaningful judicial review was not foreclosed because Plaintiffs were unable to obtain “‘pre-implementation’ review of executive orders or immediate relief barring all agencies from implementing the executive orders,’” id. at 755-56, because there the parties agreed to consolidate their preliminary injunction requests with the merits, see Scheduling Order, Civil Action No. 18-1261, ECF No. 16 at 1.
With regard to the first consideration—whether Plaintiffs would be denied meaningful review—it is clear that they would.
15 Defendants’ assertion that the three factors must be met is incorrect. See Jaresky v. SEC, 803 F.3d at 17.
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Plaintiffs have shown that the USPS implemented dramatic operational changes that have resulted in delayed mail that “have negatively affected and will continue to negatively affect Plaintiffs’ ability not only to provide necessary services to residents in need and administer their own laws and regulations, but also to protect public health by providing safe and effective means to vote by mail in the upcoming general election.” Reply, ECF No. 40 at 16. Accordingly, even if there was a “fairly discernible” intent in the statutory scheme to preclude district court jurisdiction, requiring Plaintiffs to go through the PRC process would deny them meaningful review. See Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624, 631 (4th Cir. 2018) (noting that “plaintiffs are denied meaningful review when they are subject to some additional and irremediable harm beyond the burdens associated with the dispute resolution process”) (internal quotation marks and citations omitted)); Krescholleck v. S. Stevedoring Co., 78 F.3d 868, 875 (3d Cir. 1996) (noting that the plaintiff had “alleged a sufficiently serious irreparable injury to lead us to conclude that the administrative review process is insufficient to afford him full relief”). And persuasive authority holds that this factor is the “most important.” Berkley, 896 F.3d at 630. Accordingly, this first factor weighs in favor of finding Congress intended district courts to have jurisdiction over claims such as this
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one brought by Plaintiffs. The second consideration–whether the claim is wholly collateral to the statutory scheme—is “‘related’ to whether ‘meaningful judicial review’ is available, and the two considerations are analyzed together.” Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, 929 F.3d 748, 758 (D.C. Cir. 2019) (quoting Jarskey, 803 F.3d at 22). The question to ask is “whether the plaintiffs ‘aimed to obtain the same relief they could seek in the agency proceeding.’” Id. at 758-60 (quoting Jarskey, 803 F.3d at 23). Here, the relief Plaintiffs seek cannot be meaningfully redressed through filing a Section 3662 complaint.
The third consideration is whether the claim is “beyond the expertise” of the PRC. Plaintiffs’ procedural claim does not require the “agency expertise” the statutory procedures contemplate. Berkley, 896 F.3d at 630. Accordingly, precluding district court jurisdiction here would completely deny plaintiff meaningful review given the timing of the implementation of the Postal Policy Changes.
3. Plaintiffs’ Section 3661(b) Claim Is Likely Reviewable Pursuant To The Ultra Vires Doctrine
While as a general matter “the Postal Service is exempt from review under the Administrative Procedure Act, . . . its actions are reviewable to determine whether it has acted in excess of its statutory authority.” N. Air Cargo v. U.S. Postal
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Serv., 674 F.3d 852, 858 (D.C. Cir. 2012). “The scope of Non-APA review is narrow . . . [and] is available only to determine whether the agency has acted ultra vires—that is whether it has exceeded its statutory authority.” Sears, Roebuck & Co. v. U.S. Postal Serv., 844 F.3d 260, 265 (D.C. Cir. 2016) (quotation marks and citations omitted).
Defendants contend that ultra vires review is unavailable because: (1) Plaintiffs cannot show that USPS acted “in excess of its delegated powers and contrary to a specific prohibition” because they cannot show that USPS violated Section 3661(b); and (2) Plaintiffs have a “meaningful and adequate means of vindicating [their] statutory rights” because they can file a complaint with the PRC pursuant to Section 3662. Defs.’ Opp’n, ECF No. 30 at 40 (citing Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1258 (D.C. Cir. 2006) (internal quotation marks and citations omitted)).
The Court is persuaded that Plaintiffs claim is reviewable: “Even where Congress is understood generally to have precluded review, the Supreme Court has found an implicit but narrow exception, closely paralleling the historic origins of judicial review for agency actions in excess of jurisdiction.” Griffith v. FLRA, 842 F.2d 487, 492 (D.C. Cir. 1988) (citing the leading case, Leedom v. Kyne, 358 U.S. 184, 188, 79 S.Ct. 180, 183-84, 3 L.Ed.2d 210 (1958) (finding judicial review proper despite statutory preclusion of judicial review, where the NLRB acted “in excess of its delegated
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powers and contrary to a specific prohibition” in the NLRA)). Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 116, 1172-73 (D.C. Cir. 2003). Plaintiffs claim here is that the USPS failed to comply with the requirement Congress set forth in Section 3661. Accordingly, Plaintiffs’ claims “clearly admit of judicial review.” Id. at 1173. 4. USPS Likely Failed To Comply With Section 3661(b) The scope of non-APA review includes, among other things, “a straightforward question of statutory interpretation.” Nat’l Ass’n of Postal Sup’rs v. U.S. Postal Serv., 602 F.2d 420, 432 (D.C. Cir. 1979). In conducting this review, “[t]he judicial role is to determine the extent of the agency’s delegated authority and then determine whether the agency has acted within that authority. In this as in other settings, courts owe a measure of deference to the agency’s own construction of its organic statute, but the ultimate responsibility for determining the bounds of administrative discretion is judicial.” Id. at 432-33 (internal citations omitted). Section 3661(b) provides that “[w]hen the Postal Service determines that there should be a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis, it shall submit a proposal, within a reasonable time prior to the effective date of such
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proposal, to the Postal Regulatory Commission requesting an
advisory opinion on the change.”
Persuasive authority has construed Section 3661(b) as
follows:
The language of the statute . . . indicates that three factors must coexist before 3661 applies. First, there must be a ‘change.’ This implies that a quantitative determination is necessary. There must be some meaningful impact on service. Minor alterations which have a minimal effect on the general class of postal users do not fall within 3661. Second, the change must be ‘in the nature of postal services.’ This involves a qualitative examination of the manner in which postal services available to the user will be altered. Third, the change must affect service ‘on a nationwide or substantially nationwide basis.’ A broad geographical area must be involved. These three factors combine to demonstrate that Congress intended the safeguards of 3661 to apply only when changes of significance were contemplated.
Buchanan, 508 F.2d at 263.
There is no dispute that the USPS did not comply with
Section 3661(b) prior to implementing the Postal Policy Changes
at issue in this case. Defendants argue that the Postal Policy
Changes do not implicate Section 3661(b) because: (1) there has
been no “meaningful impact on service;” (2) postal services
available to the user have not been altered; and (3) the changes
have not affected service in a broad geographical area. Defs.’
Opp’n, ECF No. 30 at 42 (quoting and citing Buchanan 508 F.2d at
263). In support, Defendants argue that sorting machines are
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being removed pursuant to a long-existing policy; not a change, noting that the USPS is in Phase 6 of this initiative. Id. Second, there is no change with regard to election mail because it is being treated the same as it has in the past. Id. at 43. Third, the ESAS pilot program, which has been suspended, was not national in scope. Id. Fourth, USPS has not prohibited extra or late trips, but rather has “renewed its emphasis on adhering to its published schedule.” Id. Defendants conclude that this latter change is “precisely the type of management direction to which [S]ection 3661 does not apply.” Id. Finally, Defendants contend that pursuant to past practice, the types of “nationwide changes that trigger [Section] 3661’s review are general changes to postal facility hours or service standards for mail delivery.” Id. at 44.
The Court is persuaded that Plaintiffs are likely to succeed on their claim that Defendants violated Section 3661(b) by failing to submit the new transportation policy to the PRC. First, the new transportation policy was a “change” because it has had a “meaningful impact on service.” Buchanan, 508 F.2d at 263. Plaintiffs have provided evidence showing that the reduction in extra and late trips has had a meaningful impact on service because it has resulted in nationwide delays. See supra at 7-8. Second, Plaintiffs have demonstrated that the reduction in sorting machines was dramatically accelerated beginning in
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January 2020 as compared with the prior fiscal year. DeChambeau16 Decl., ECF No. 30-2 ¶ 21. Specifically, while 101 machines were removed in FY 2019, 711 machines were removed in FY 2020 as of August 18, 2020, resulting in a nearly 15 percent reduction in capacity. Id. Defendants have provided no explanation for the sudden acceleration of the removal of the sorting machines.
Plaintiffs have also demonstrated that the combination of the reduction of late trips, extra trips and reduced sorting capacity puts the timely delivery of election mail at risk. Coradi Decl., ECF No. 12-34 ¶ 17 (“If postal employees are not able to make the necessary daily adjustments via late trips, extra trips, and the full fleet of sorting machines for the 2020 election season, I am deeply concerned about whether the U.S. Postal Service will be able to deliver election mail as quickly as it has in the past. Since I began as a letter carrier in 1984, it has been standard practice to treat election mail as First Class mail with delivery times of one to three days—or better—regardless of whether it was marked as Marketing Mail, which has a delivery time of three to 10 days.”); id. ¶ 18 (“Given the recent U.S. Postal Service policy changes which have reduced sorting capacity and limitations on late trips and extra trips, I fear that the dedicated employees of the U.S. Postal
16 Jason Chambeau is the Headquarter Director of Processing Operations for the United States Postal Service.
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Service will be prevented from making the necessary adjustment to accommodate potential influxes of election mail. Election mail includes ballots, voter registration cards, absentee voting applications, and poling place notifications. If delivery is being significantly delated in August, which, in my experience is when mail volume it typically lower, the risk of even more dramatic delays beginning in the fall is high.”).
Plaintiffs have also demonstrated that Defendants’ position in this litigation that the Postal Policy Changes are not “changes” is not supported based on USPS’s own statements. See Email from Mr. DeJoy to All Employees, August 13, 2020, ECF No. 12-22 at 2 (“In order to transform . . . we must make a significant number of changes that will not be easy . . . .”); id. (“Unfortunately, this transformative initiative has had unintended consequences that impacted our overall service levels. However, recent changes are not the only contributing factors.”); id. at 3 (“I ask that you bear with me while we work through these changes to transform for the better . . . .”).
Second, the change was “in the nature of postal services,” 39 U.S.C. § 3661(b), because it qualitatively altered “the manner in which postal services [are] available to the user,” Buchanan, 508 F.2d at 263. As stated above, Plaintiffs point to evidence showing that the reduction in extra and late trips
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combined with the reduction in sorting machines resulted in nationwide delays.
Third, the change affected service “on a nationwide or substantially nationwide basis,” 39 U.S.C. § 3661(b), because “[a] broad geographical area [was] involved,” Buchanan, 508 F.2d at 263. Plaintiffs have submitted evidence that the Postal Policy Changes have resulted in delays on a nationwide basis. See supra at 16-17.
While it is clear that Congress did not intend for the courts to micromanage the operations of the USPS, requiring the USPS to comply with the statutory requirement that it obtain an advisory opinion from the PRC and provide for notice and comment prior to implementing “a change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis” is not micro-managing; it is requiring the USPS to act within its statutory authority. Furthermore, Congress clearly intended Section 3661 to require an opportunity for public participation and for independent review before the USPS implements service changes that will have a broad effect. The broad scope of the Postal Policy Changes demonstrates on its face that it is precisely the kind of change that is to be the subject of the public-participation and independent review safeguards provided by Section 3661.
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Finally, defendants argue that because Plaintiffs have a “meaningful and adequate means of vindicating their statutory rights” by filing a complaint with the PRC and then seek judicial review in the D.C. Circuit if unsatisfied, they cannot establish ultra vires jurisdiction. Defs.’ Opp’n, ECF No. 30 at 41. Plaintiffs respond—and the Court agrees as explained above— that they lack a “meaningful and adequate means of vindicating their statutory rights” since “section 3662 would not afford [them] judicial review of an adverse PRC ruling within a timeframe that would allow for the meaningful vindication of their right to notice and opportunity to participate as required under 39 U.S.C. § 3661(b).” Reply, ECF No. 40 at 19.
B. Plaintiffs Face Irreparable Harm “In this Circuit, a litigant seeking a preliminary injunction must satisfy ‘a high standard’ for irreparable injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297). The movant must demonstrate that it faces an injury that is “both certain and great; it must be actual and not theoretical,” and of a nature “of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and emphasis omitted).
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Plaintiffs argue that the Postal Policy Changes impede their ability to combat the spread of COVID-19 because the failure to timely deliver mail and other reductions in service standards results in more in-person interactions with government officials and adversely affects their “ability to provide safe alternatives to in person voting.” Mot., ECF No. 12-1 at 21-22. Defendants counter that Plaintiffs have failed to meet their burden of establishing “that mail delays were necessarily the result of the challenged policies, or that future delays, if there are any, would be the result of” the Postal Policy Changes. Defs.’ Opp’n, ECF No. 30 at 46-47. However, the Court has already determined that Plaintiffs have shown that there is a substantial likelihood that the on-going non-speculative harms they allege caused by mail delays are “fairly traceable” to the Postal Policy Changes. See supra at 14-17.
Defendants further counter that this alleged harm is to the citizens of the states and that States cannot bring parens patriae claims against the federal government, and that even if they could, Plaintiffs’ injury is entirely speculative. Defs.’ Opp’n, ECF No. 30 at 48-49. However, Plaintiffs have provided evidence that the efforts to mitigate the spread of COVID-19 is aimed at protecting the public health of their respective jurisdictions as a whole. See Adinaro Decl. ECF No. 12-4 ¶¶ 7-8 (describing the efforts of the New Jersey Department of Health
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to mitigate the spread of COVID-19); Ku Decl. (describing the efforts of New York, New Jersey, and Hawaii to institute absentee or mail voting to mitigate the spread of COVID-19). Impeding these mitigation efforts results in harm to government Plaintiffs as well as the residents of the states. New York v. U.S. Dep’t of Homeland Sec., No. 19 Civ. 7777, 2020 WL 4347264, at *10 (S.D.N.Y. July 29, 2020) (finding that the state plaintiffs adequately demonstrated irreparable harm where the Governmental “Plaintiffs provide[d] ample evidence that the [challenged conduct] deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts in the Governmental Plaintiffs jurisdictions to stem the spread of the disease.”), stayed on other grounds, No. 20-2537, 2020 WL 5495530 (2d Cir. Sept. 11, 2020).
Defendants also argue that Plaintiffs’ argument that their efforts to curb the spread of COVID-19 will be undermined by mail delays because more residents will opt to vote in person as speculative. Defs.’ Opp’n, ECF No. 30 at 25. At this juncture, Plaintiffs need only demonstrate the likelihood of an increased risk of injury. Winter, 555 U.S. at 22 (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.”). Plaintiffs have provided ample evidence that mail delays are likely to cause more residents to
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vote in person which in turn is likely to impede the spread of the virus. See Kellner Decl., ECF No. 12-12 ¶ 14 (“Due to [voters not receiving their ballots on time], additional voters went to polling places who would not have otherwise needed to, adding to significant crowds and delays at certain polling sites for in-person voting. Longer wait times at polling sites is of particular concern to election officials as this increases the risk of exposure to COVID-19, thereby threatening the health and safety of voters, voting officials, and the larger community.”); Ku Decl., ECF No. 12-13 ¶¶ 17-18 (describing empirical evidence demonstrating that “voting in crowded polling places increases the risk of infection”); id. ¶ 12 (describing polls indicating fewer people intend to vote by mail due to concerns about mail delays).
Finally, Defendants argue that all residents need to do is “mail their ballots a reasonable time before the election (which is approximately two months away).” Defs.’ Opp’n, ECF No. 30 at 39. However, as Plaintiffs point out, the ability of the residents of New York, Hawaii, and New Jersey to mail their ballots is not entirely within the residents’ control since ballots are not mailed to the residents two months before the election.
Plaintiffs’ harm is “both certain and great . . . actual and not theoretical” because mail delays are impeding
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Plaintiffs’ ability to combat the spread of a highly contagious and deadly disease and are impeding their ability to provide safe alternatives to in-person voting. As of September 27, 2020, 204,607 Americans have died from the disease and over seven million people have been infected with it. See Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html. Plaintiffs’ harm is also “of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm” because Election Day is November 3, 2020.
Because Plaintiffs have demonstrated that absent an injunction they will suffer immediate and irreparable harm to their ability to combat the spread of COVID-19 and to provide safe alternatives to in-person voting, the Court need not reach whether Plaintiffs have also demonstrated the Postal Policy Changes have resulted in direct, unrecoverable financial harms nor whether Plaintiffs have demonstrated that the Postal Policy changes disrupt Plaintiffs’ administration of federal, state, and local laws and impose additional, unnecessary administrative burdens.
C. The Balance Of Equities And Public Interest Favor An Injunction
The balance-of-equities factor directs the Court to “‘balance the competing claims of injury and . . . consider the effect on each party of the granting or withholding of the
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requested relief.’” ConverDyn, 68 F. Supp. 3d at 52 (quoting Winter, 555 U.S. at 24). “When the issuance of a preliminary injunction, while preventing harm to one party, causes injury to the other, this factor does not weigh in favor of granting preliminary injunctive relief.” Id.; see also Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast, the balance of equities may favor a preliminary injunction that serves only “‘to preserve the relative positions of the parties until a trial on the merits can be held.’” Rufer v. FEC, 64 F. Supp. 3d 195, 205 (D.D.C. 2014) (quoting Camenisch, 451 U.S. at 395). “The purpose of . . . interim relief is not to conclusively determine the rights of the parties, University of Tex. V. Camenisch, 451 U.S. 390, 395 (1981), but to balance the equities as the litigation moves forward. In awarding a preliminary injunction a court must also ‘conside[r] . . . the overall public interest,’ Winter, 555 U.S. at 26.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017).
Defendants fail to identify any equities in their favor and do not contest the equities in the Plaintiffs’ favor. Defendants’ only arguments are that they are “undertaking extensive efforts to facilitate the timely delivery of Election Mail,” that the two of the four postal policies are not changes— "one has been stopped, and the fourth has been mischaracterized”—and that ensuring compliance with the
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injunction “could require the Court to act as an overseer of the agency’s day-to-day activities.” Defs.’ Opp’n, ECF No. 30 at 50.
Here, the balance of the equities and the public interest favor an injunction. It is clearly in the public interest to mitigate the spread of COVID-19, to ensure safe alternatives to in-person voting, and to require that the USPS comply with the law. The equities balance in favor of Plaintiffs because the relief sought is a targeted preliminary injunction that prohibits Defendants from continuing to implement the Postal Service Policies with respect to which an advisory opinion from the PRC should have been obtained prior to implementation. Furthermore, the proposed injunction does not contemplate the Court becoming involved in overseeing the day-to-day operations of the USPS.
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V. Conclusion For the foregoing reasons, the Court GRANTS the Plaintiffs’

motion for a preliminary injunction. Any request to stay this

decision pending appeal will be denied for substantially the

same reasons as those articulated in this Opinion. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge September 27, 2020

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