The Postal Service is now 0 and 5 in the eleven lawsuits filed against it as a result of the mail delays caused by the operational changes that went into effect in July. Yesterday two more orders were against the Postal Service.
In Pennsylvania v DeJoy, Judge Gerald McHugh of the Eastern District of Pennsylvania ruled that the Postal Service can’t restrict extra or late trips for mail delivery and can’t prohibit overtime. In Vote Forward v DeJoy, Judge Emmet Sullivan issued his second order against the Postal Service.
Here are the five orders that have been issued in federal courts banning the Postal Service from making the kinds of operational changes that caused delays over the summer:
New York v USPS, Judge Emmet G. Sullivan, District of Columbia District Court (Sept. 27, 2020)
Jones v USPS, Judge Victor Marrero, New York Southern District Court (Sept. 25, 2020)
Washington v Trump, Judge Stanley A. Bastian, Washington Eastern District Court (Sept. 17, 2020)
As a result of these five preliminary injunctions, the Postal Service has had to walk back all the changes it made over the summer as well as making all sorts of commitments about what it will do to ensure timely delivery of mail ballots. That’s good news for voters and others who depend on the Postal Service for things like their medications.
These five rulings should mean something else as well. The Postmaster General and the Board of Governors have received the strongest of rebukes from four federal judges in five cases representing twenty-four states, several national organizations, and many individuals. This turn of events has to be unprecedented, and it has been a total embarrassment for the Postal Service’s leaders. It won’t happen, but they should be thinking about resigning.
Like Sullivan’s ruling in New York v Trump, McHugh’s order in Pennsylvania focuses on the Postal Service’s failure to present its plans for cutbacks to the Postal Regulatory Commission for an advisory opinion, which would have afforded the public an opportunity to review it and comment on it.
District Judge Gerald Austin McHugh: “Plaintiffs and the Postal Service agree that the Postal Service undertook a major new initiative following Louis DeJoy’s installation as Postmaster General. Both sides also agree that the Postal Service did not seek an advisory opinion and that no public hearing occurred before the Postal Service implemented these changes in July 2020. Against that background, Plaintiffs have produced compelling evidence from Defendants themselves, indicating that there has been a pronounced increase in mail delays across the country since the implementation of these changes. And the Postal Service insists that it is rolling back the changes and improving performance.
The Postal Service is a critical agency that preceded the birth of the nation itself, one of a few agencies that the Constitution explicitly authorized. U.S. Const. art. I, § 8.
Congress has described it as ‘a basic and fundamental service provided to the people by the Government of the United States. . . .’ 39 U.S.C. § 101(a). Its ability to fulfill its mission during a presidential election taking place in the midst of a public health crisis is vital. The record in this case strongly supports the conclusion that irreparable harm will result unless its ability to operate is assured. I will therefore grant injunctive relief.”
Sullivan’s ruling in Vote Forward differs from his ruling in New York v Trump in significant ways. The most apparent is that the New York decision focused primarily on the Postal Service’s failure to request a PRC advisory opinion before implementing changes that had a nationwide impact. The Vote Forward order doesn’t even mention the advisory opinion issue. Instead it’s about voting rights (as was true with the Jones case).
Judge Sullivan states: “Here, the Court finds that the ‘character and magnitude’ of Plaintiffs’ asserted injury to the right to vote is significant. Plaintiffs have provided sufficient evidence suggesting that Defendants’ policy has caused and will continue to cause inconsistency and delays in the delivery of mail across the United States, placing at particular risk voters residing in one of the 28 states that require mail ballots to be received, not just post-marked, by Election Day.
Furthermore, while content neutral, Defendants’ policy changes place an especially severe burden on those who have no other reasonable choice than to vote by mail, such as those who may be at a high risk of developing a severe case of COVID-19 should they become exposed to the virus at the polling place, and those who are not physically able to travel to the polls due to disability.
The Court respects that the federal government, and USPS in particular, have legitimate interests in maintaining efficient programs and in saving money; however, these interests do not justify the resulting harms Plaintiffs face. As stated above, the burden the USPS policy changes place on Plaintiffs’ constitutional right to vote and have their vote counted is significant. At risk is disenfranchisement in the November election of potentially hundreds of thousands of individuals.”
There have been developments in some of the other cases as well. In Montana Governor Bullock’s case, an amicus brief has been filed by twenty-four members of Congress. It focuses on the Postal Service failure to request an advisory opinion when planning changes with nationwide impacts.
In Jones, attorneys for the government have requested an extension as the parties continue to work out the wording of the passage on overtime in the Supplemental Guidance Document.
In New York, an amicus brief has been filed by Brady and Team Enough, two gun violence prevention organizations.