Richardson v. Trump ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TERESA RICHARDSON; CHRISTOPHER
CARROLL; GINA ARFI; and AIDA
ZYGAS,
Plaintiffs,
Civ. Action No. 20-2262 (EGS)
v.
DONALD J. TRUMP, in his official
capacity as President of the
United States; LOUIS DEJOY, in
his official capacity as
Postmaster General of the
United States; and UNITED
STATES POSTAL SERVICE,
Defendants.
MEMORANDUM OPINION
Plaintiffs—four voter-eligible individuals from Texas,
Pennsylvania, New York, and Wisconsin—bring this lawsuit against
Defendants President Donald J. Trump (“President 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”)
alleging (1) violation of the constitutional right to vote; (2)
civil conspiracy to violate the right to vote; and (3) ultra
vires agency action. Am. Compl., ECF No. 49. 1 Plaintiffs seek a
preliminary injunction with regard to each of their claims.
Upon consideration of the Plaintiffs’ motion, the response,
and reply thereto, the applicable law, and the entire record,
the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion.
I. Background
A. Factual Background
1. The COVID-19 Pandemic
The COVID-19 pandemic has increased reliance on mail
delivered by the USPS. See Hersh Decl., ECF No. 57-6 ¶ 10.
Several states have adjusted their election procedures to allow
for all eligible voters to vote by mail-in ballot in the
November 2020 election. For example, nine states and the
District of Columbia will automatically send voters ballots this
year, and another nine states will automatically send voters an
application to request an absentee ballot. Id. ¶ 12. In
addition, “some 77% of Americans live in jurisdictions in which
anyone can request a mail ballot (without an excuse) or are
mailed applications to vote by mail or are mailed actual ballots
to cast votes by mail.” Id. ¶ 14. In total, the adjustments made
by many states in response to the COVID-19 pandemic will result
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
in approximately 80 million mail-in ballots being submitted for
the November election. See id.
2. USPS Postal Policy Changes
In June and July 2020, the USPS announced and implemented a
series of changes (collectively, “Postal Policy Changes”) to how
it collects, processes, and delivers mail.
First, in a “leaked PowerPoint” titled “PMGs expectations
and plan,” USPS announced that penalty overtime “will be
eliminated” and “[o]vertime will be eliminated” because “we are
paying too much in [overtime] and it is not cost effective”
(“Overtime Policy”). Am. Compl., ECF No. 49 ¶ 48 (citing Leaked
USPS PowerPoint Indicates PMG DeJoy Focus on Getting Operating
Costs Under Control, Alliance of Nonprofit Mailers (July 14,
2020), nonprofitmailers.org/leaked-usps-powerpoint-indicates-
pmg-dejoy-focus-on-getting-operating-costs-under-control/
[hereinafter “USPS PowerPoint”] 2). In testimony before the House
Oversight and Reform Committee on August 24, 2020, Mr. DeJoy
stated that he “did not direct the elimination or any cutback in
overtime.” See Ex. 14 to Defs.’ Response Pls.’ Mot. Prelim. Inj.
(“Defs.’ Opp’n”), ECF No. 55-4 at 305.
2 Because the USPS PowerPoint is cited and quoted within the
Amended Complaint, ECF No. 49, the Court deems the document
incorporated by reference in the complaint. See Boster v.
Reliance Standard Life Ins., 959 F. Supp. 2d 9, 29 (D.D.C. 2013)
(ABJ).
3
Second, on June 17, 2020, the USPS announced that it would
be removing high-speed sorting machines nationwide over the
course of several months. Am. Compl., ECF No. 49 ¶¶ 50-51
(citing Letter from Rickey R. Dean, Manager of Contract Admin.,
Am. Postal Workers Union, to Mark Diamondstein, Pres., Am.
Postal Workers Union (June 17, 2020), https://www.21cpw.com/wp-
content/uploads/2020/06/mail-processing-equipment-reduction_6-
17-2020.pdf 3); see also Ex. A to Reply Further Supp. Pls.’ Mot.
Prelim. Inj. (“Pls.’ Reply”), ECF No. 57-2. Defendants state
that the further removal of equipment has been suspended until
after the November 2020 election. Defs.’ Opp’n, ECF No. 55 at
23-24.
Third, on July 10, 2020, the USPS announced several
“transportation changes,” including changes prohibiting “late
trips” and “extra trips” (“Late/Extra Trips Policy”). Am.
Compl., ECF No. 49 ¶ 52 (citing Jory Heckman, USPS Warns Staff
of Temporary Mail Delays As It Cuts ‘Soaring’ Delivery Costs,
Fed. News Network (July 15, 2020),
https://federalnewsnetwork.com/management/2020/07/usps-warns-
staff-of-temporarymail-delays-as-it-cuts-soaring-delivery-
costs 4). The USPS knew that prohibiting these trips would result
3 The Court considers this document as incorporated by reference
in the Amended Complaint. See supra n.2.
4 The Court takes judicial notice of the existence of the news
article. See Washington Post v. Robinson, 935 F.2d 282, 291
4
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) . . . .” Id. ¶ 53. By August 13, 2020, the USPS had
reduced the number of extra trips by 71 percent. Pls.’ Reply,
ECF No. 57 at 8 (citing Path Forward: PMG Addresses
Restructuring, USPS LINK (Aug. 13, 2020),
https://link.usps.com/2020/08/13/path-forward-2 5). Defendants
have clarified that late or extra trips are not “banned”;
however, they acknowledge that they continue “at a reduced
level.” Cintron Decl., ECF No. 55-3 ¶ 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. A to Notice Suppl. Material, ECF
No. 62-1 at 4.
(D.C. Cir. 1991) (“[A] court may take judicial notice of the
existence of newspaper articles in the Washington, D.C., area
that publicized” certain facts); Agee v. Muskie, 629 F.2d 80, 81
n.1, 90 (D.C. Cir. 1980) (taking judicial notice of facts
generally known as a result of newspaper articles).
5 The Court takes judicial notice of this document. See Cannon v.
District of Columbia, 717 F.3d 200, 205 n.2 (D.C. Cir. 2013)
(taking judicial notice of document posted on the District of
Columbia’s Retirement Board website).
5
Fourth, on July 16, 2020, 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.” Mem. Points Authorities Supp.
Pls.’ Appl. Prelim. Inj. (“Pls.’ Mot.”), ECF No. 15 at 22. The
National Association of Letter Carriers thereafter expressed
concern that “USPS chose to test [the initiative] unilaterally”
without their participation and because it did not seem to
“conform” with specific USPS handbook provisions regarding
certain types of mail. See Am. Compl., ECF No. 49 ¶¶ 54-55
(citing USPS Announces New ESAS Delivery Initiative Test, Nat’l
Ass’n of Letter Carriers (July 21, 2020),
https://www.nalc.org/news/nalc-updates/usps-announces-new-esas-
delivery-initiative-test 6). A subsequent USPS internal memo
clarified that the initiative meant that “[c]ity carriers will
not sort any mail during the morning operation,” but will
instead sort delivery in the afternoon “[u]pon return from
street delivery.” Id. ¶ 56 (citing Memorandum from USPS (July
2020), http://www.nalc3825.com/SUT.ESAS.July.2020.pdf 7).
Defendants state that this program has been “suspended at the
Postmaster General’s Direction.” Defs.’ Opp’n, ECF No. 55 at 28.
6 The Court considers this document as incorporated by reference
in the Amended Complaint. See supra n.2.
7 The Court considers this document as incorporated by reference
in the Amended Complaint. See supra n.2.
6
Fifth, on August 7, 2020, Mr. DeJoy “released a
reorganization memo reflecting that twenty-three postal
executives, including several with decades of experience, were
reassigned or displaced.” Am. Compl., ECF No. 49 ¶ 59 (citing
Jacob Bogage, Postal Service Overhauls Leadership as Democrats
Press for Investigation of Mail Delays, Wash. Post (Aug. 7,
2020),
https://www.washingtonpost.com/business/2020/08/07/postal-
service-investigationdejoy 8). In addition, USPS announced it had
implemented a “management hiring freeze and will be requesting
future Voluntary Early Retirement Authority from the Office of
Personnel Management for employees not represented by a
collective bargaining agreement.” Id. ¶ 60 (citing Press
Release, Postmaster General Louis DeJoy Modifies Organizational
Structure to Support USPS Mission (Aug. 7, 2020),
https://about.usps.com/newsroom/national-releases/2020/0807-pmg-
modifiesorganizational-structure.htm 9). Defendants have stated
that “[f]or a period of time beginning in August 2020, there has
been a management hiring freeze for all non-bargaining unit
8 The Court takes judicial notice of the existence of the news
article. See supra n.4.
9 The Court takes judicial notice of the USPS press release
because it is a federal agency document available from a
reliable source. See Democracy Forward Found. v. White House
Off. of Am. Innovation, 356 F. Supp. 3d 61, 68 n.4 (D.D.C. 2019)
(CKK).
7
employees. However, that hiring freeze has had no impact on
craft employees. Indeed, [USPS] has hired thousands of new
employees to help address staff shortages caused by the
pandemic.” Curtis. Decl., ECF No. 55-1 ¶ 25.
Sixth, in August 2020, USPS also began removing mailboxes
in New York, Pennsylvania, Oregon, and Montana. Pls.’ Mot., ECF
No. 15 at 22. Defendants state that the removal of mailboxes has
been suspended until after the November 2020 election. Defs.’
Opp’n, ECF No. 55 at 23-24.
Seventh, 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 Pls.’ Reply,
ECF No. 57 at 12; see also Goldway Decl., ECF No. 57-7 ¶¶ 4-6.
This was a change to the USPS practice of treating “Election
Mail” 10 and political mail mailed as marketing mail on an
expedited First-Class basis. Pls.’ Reply, ECF No. 57 at 12; see
also Goldway Decl., ECF No. 57-7 ¶¶ 5-7.
10USPS defines “Election Mail” as “any item mailed to or from
authorized election officials that enables citizens to
participate in the voting process. This includes ballots, voter
registration forms, ballot applications, polling place
notifications, and similar materials. This mail qualifies as
Election Mail both when it is sent to voters from election
officials at the state and local levels and when it is returned
by voters to those officials.” Glass Decl., ECF No. 55-2 ¶ 3.
8
3. USPS Postal Policy Changes Have Led To Nationwide
Delays And Continue To Have A Nationwide Impact
“[O]n-time mail delivery fell abruptly following . . .
[Mr.] DeJoy’s July 2020 directives ordering operational changes
in mail service and delivery. By the second week of August 2020,
on-time delivery of First-Class Mail nationwide had fallen
nearly 10 percentage points compared to the week preceding the
change.” Pls.’ Reply, ECF No. 57 at 9-10 (quoting Senator Gary
Peters, U.S. Senate Comm. on Homeland Sec. & Gov’t Affairs,
Failure to Deliver: Harm Caused by U.S. Postmaster General
DeJoy’s Changes to Postal Service Mail Delivery 3 (Sept. 16,
2020),
https://www.hsgac.senate.gov/imo/media/doc/200916_FullReport
_PetersPostalInvestigation.pdf [hereinafter “Senate Report”] 11);
see also Senate Report at 1 (“[T]hese changes significantly
slowed mail delivery across the entire country and, as Senator
Peters wrote to Postmaster General DeJoy and detailed in an
interim report, ‘compromised service for veterans, small
businesses, rural communities, seniors, and millions of
Americans who rely on the mail for medicines, essential goods,
voting, correspondence, and for their livelihoods.’”). In an
August 13, 2020 email to all USPS employees, Mr. DeJoy
11The Court takes judicial notice of the Senate report. See
Connecticut v. U.S. Dep’t of the Interior, 344 F. Supp. 3d 279,
313 n.30 (D.D.C. 2018) (RC).
9
acknowledged that “this transformative initiative has had
unintended consequences that impacted our overall service
levels.” Path Forward: PMG Addresses Restructuring, USPS LINK
(Aug. 13, 2020), https://link.usps.com/2020/08/13/path-forward-
2.
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.” Am. Compl., ECF No. 49 ¶ 63 (quoting Press Release,
USPS, Postmaster General Louis DeJoy Statement (Aug. 18, 2020),
https://about.usps.com
/newsroom/national-releases/2020/0818-postmaster-general-louis-
dejoy-statement.htm 12). 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.”
Press Release, USPS, Postmaster General Louis DeJoy Statement
(Aug. 18, 2020), https://about.usps.com
12The Court takes judicial notice of the USPS press release
because it is a federal agency document available from a
reliable source. See supra n.9.
10
/newsroom/national-releases/2020/0818-postmaster-general-louis-
dejoy-statement.htm.
Defendants state that “[t]he only exception to [Mr.
DeJoy’s] directive to maintain the status quo through Election
Day pertains to the ongoing effort to improve compliance with
existing schedules throughout USPS’s transportation and
processing networks.” Defs.’ Opp’n, ECF No. 55 at 22. However,
USPS has announced that employees “are not to
reconnect/reinstall machines that have been previously
disconnected without prior approval from HQ Maintenance.” Am.
Compl., ECF No. 49 ¶ 64 (quoting Aaron Gordon, USPS Headquarters
Tells Managers Not to Reconnect Mail Sorting Machines, Emails
Show, Vice News (Aug. 20, 2020),
https://www.vice.com/en_us/article/xg8k4d/usps-emails-tell-
managers-not-toreinstall-mail-sorting-machines-postmaster-
general-dejoy 13); see also id. ¶¶ 96, 111-12. In addition, USPS
announced it does not plan to reinstall the mailboxes removed
after June 16, 2020. Am. Compl., ECF No. 49 ¶ 119.
4. Plaintiffs’ Factual Allegations
Plaintiffs seek “injunctive relief to protect [their] right
to vote by ensuring that the United States Postal Service
delivers absentee and mail-in ballots in a timely fashion to
13The Court takes judicial notice of the existence of the news
article. See supra n.4.
11
them and then, delivers their executed ballots to election
officials in time to be counted.” See Am. Compl., ECF No. 49 ¶
10. Each of the Plaintiffs allege that they applied for, but
never received, an absentee or mail-in ballot during the 2020
primary elections due to the “several steps calculated to slow
down – and to undermine – the [USPS’s] ability to deliver the
mail, all in the name of cost-cutting but at the expense of the
right of citizens to vote.” Am. Compl., ECF No. 49 ¶¶ 10-11, 16.
Plaintiffs allege that these delays will continue into November,
leaving them “with the choice of compromising their right to
vote by not voting at all or risking their health.” Id. ¶¶ 19,
176.
Because they never received their ballots through the mail,
each Plaintiff was forced to either vote in-person, risking
contracting COVID-19 or infecting at-risk individuals with whom
they live, or not vote at all. Id. ¶¶ 11-12. For example,
Plaintiff Teresa Richardson resides in Texas and applied for an
absentee ballot, based on “disability,” for the July primary
election in her state. Ms. Richardson suffers from “debilitating
arthritis that has resulted in two hip replacements, a shoulder
replacement, and an expected knee replacement” and is a “high
risk for COVID-19” because she is currently undergoing
“prophylactic treatment resulting from a breast cancer
diagnosis.” Richardson Decl., ECF No. 15-2 ¶¶ 4-7. Ms.
12
Richardson applied for an absentee ballot on or around April 24,
2020, but she never received the ballot. Id. ¶¶ 10-12. She
decided to vote in person on July 14, 2020. Id. In Texas,
applications to vote by mail must be received 11 days before
Election Day; all ballots submitted by mail must be postmarked
by Election Day and be received by the day after Election Day.
See FAQ, Off. of the Tex. Sec’y of State (last visited Oct. 8,
2020), https://www.votetexas.gov/faq/index.html.
Plaintiff Christopher Carroll is a registered voter in
Pennsylvania and requested a ballot for the June 2020 primary
election in his state. Carroll Decl., ECF No. 15-3 ¶¶ 1, 3-5. He
never received his ballot, so he was unable to vote because he
was out of the state on the date of the election. Id. ¶ 5. In
Pennsylvania, applications to vote by mail must be received 7
days before Election Day; all ballots submitted by mail must be
postmarked by Election Day and be received within 3 days after
Election Day. See Voting by Mail-in or Absentee Ballot,
Commonwealth of Pa. (last visited Oct. 8, 2020),
https://www.votespa.com/Voting-in-PA/Pages/Mail-and-Absentee-
Ballot.aspx.
Plaintiff Gina Arfi is a registered voter in New York and
requested an absentee ballot for the primary election “based on
temporary illness or physical disability.” Arfi Decl., ECF No.
15-4 ¶¶ 1, 3. Ms. Arfi never received her ballot; she decided
13
not to vote because, as she lives with her 85-year-old
grandmother, she was concerned about exposing herself and her
grandmother to COVID-19. Id. ¶ 5. In New York, applications to
vote by mail must be received 7 days before Election Day; all
ballots submitted by mail must be postmarked by Election Day and
be received within 7 days after Election Day. See Absentee
Voting, N.Y. State Bd. of Elections (last visited Oct. 8, 2020),
https://www.elections.ny.gov/votingabsentee.html.
Finally, Plaintiff Aida Zygas is registered to vote in
Wisconsin and requested an absentee ballot for the August 2020
elections in her state because she did not think she would be in
the state on the day of the election. Zygas Decl., ECF No. 15-5
¶¶ 1, 3. She did not receive a ballot; however, she returned to
Wisconsin in time for the election and decided to vote in
person. Id. ¶ 4. In Wisconsin, applications to vote by mail must
be received 5 days before Election Day. All ballots submitted
by mail must be postmarked by Election Day and be received
within 6 days after Election Day. See Overview of Absentee
Voting Rules, Wis. Elections Comm’n (last visited Oct. 8, 2020),
https://elections.wi.gov/sites/default/files/publication/137/abs
entee_overview_1_27_16_pdf_14821.pdf.
B. Procedural History
Plaintiffs filed this lawsuit on August 17, 2020. See
generally Compl., ECF No. 1. On August 20, 2020, Plaintiffs
14
filed a motion for preliminary injunction requesting that the
Court direct Defendants to:
(1) return postal operations and restore
postal service to that in place on January 1,
2020; (2) replace or restore the removed the
high-speed sorting machines and mailboxes that
have been taken out of service and put them
back into operation; (3) restore overtime pay
and lift the hiring freeze so that USPS can
hire additional employees when and where
necessary to ensure the timely processing and
delivery of mail-in ballots; (4) make all late
mail deliveries instead of letting mail be
delayed or go undelivered; (5) restore
seasoned employees to their former positions,
including the employees who were reassigned or
displaced in the recent USPS reorganization;
and (6) refrain from any and all other conduct
that is intended to interfere and/or
interferes with Plaintiffs’ fundamental right
to vote in United States elections, including
but not limited to the 2020 presidential
election.
Pls.’ Appl. Prelim. Inj., ECF No. 14. Plaintiffs also request
that the Court appoint a special master to oversee Defendants’
compliance with any injunction. Pls.’ Mot., ECF No. 15 at 28. On
September 11, 2020, Plaintiffs filed an amended complaint
against Defendants, replacing its claim that Defendants’ conduct
violated the Administrative Procedure Act with a claim that the
USPS policy changes represent ultra vires agency action. 14 Am.
14Although Plaintiffs filed their amended complaint after filing
their motion for preliminary injunction and before Defendants
filed their opposition, the Court finds it appropriate to refer
to the factual allegations in the amended complaint. See
Takiguchi v. MRI Int’l, Inc., 611 F. App’x 919, 921 (9th Cir.
2015) (dismissing the argument that the “district court
15
Compl., ECF No. 49. Defendants filed their opposition to
Plaintiffs’ motion for preliminary injunction on September 15,
2020. Defs.’ Opp’n, ECF No. 55. Plaintiffs filed their reply
brief on September 20, 2020. Pls.’ Reply, ECF No. 57. The motion
is ripe for the Court’s consideration.
II. Legal Standard
“A plaintiff seeking a preliminary injunction must
establish [1] that he is likely to succeed on the merits, [2]
that he is 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
improperly considered evidence that the plaintiffs submitted
with their preliminary injunction reply brief and allegations
pleaded for the first time in the Third Amended Complaint, which
was filed after all of the preliminary injunction briefing,”
because “even if it were error to do so, it would be harmless,
see United States v. Nutri–cology, Inc., 982 F.2d 394, 398 (9th
Cir. 1992), because the mere allegations of a complaint will
never suffice to establish the prerequisites for obtaining a
preliminary injunction, see Winter v. NRDC, Inc., 555 U.S. 7,
20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)”); Vantage Mobility
Int’l LLC v. Kersey Mobility LLC, No. 19-cv-04684, 2020 WL
411188, at *1 (D. Ariz. Jan. 24, 2020) (“Although VMI filed the
First Amended Complaint (‘FAC’) after the Preliminary
Injunction Application, the Court will resolve the Application
by considering the FAC as the operative pleading . . . .”).
16
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) (citation omitted). “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, 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, free-
standing requirement for a preliminary injunction.” (citation
and quotation marks omitted)). Nonetheless, “the Circuit has had
no occasion to decide this question because it has not yet
17
encountered a post-Winter 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).
III. Analysis
A. Plaintiffs Are Likely To Succeed On The Merits Of Their
Claim
Plaintiffs claim that they have shown a likelihood of
success on the merits of all three of their claims: (1)
violation of the right to vote and the right to equal
protection; 15 (2) civil conspiracy; and (3) ultra vires agency
action. Because the Court finds that Plaintiffs have shown they
will likely succeed on their claim that Defendants’ policy
changes violated their fundamental right to vote, the Court need
not evaluate Plaintiffs’ two other claims at this time.
1. Plaintiffs Likely Have Standing
As a threshold matter, Defendants argue that Plaintiffs
have failed to establish that they have standing to bring their
claim. Defs.’ Opp’n, ECF No. 55 at 30.
To establish standing, “a plaintiff must show (1) an
‘injury in fact,’ (2) a sufficient ‘causal connection between
15Plaintiffs bring their equal protection claim under the
Fourteenth Amendment. Am. Compl., ECF No. 49 at 49. Because
Defendants are subject to the Fifth Amendment to the United
States Constitution but not to the Fourteenth, the Court
construes the complaint as one bringing a claim under the Fifth
Amendment.
18
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. Defs. 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 an immediate threat of
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 Pres. Off. v. FERC,
949 F.3d 8, 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 have not established
that any future injury is “certainly impending,” Defs.’ Opp’n,
ECF No. 55 at 31 (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C.
Cir. 2015)), arguing that the fact “[t]hat Plaintiffs may have
19
failed to receive their absentee ballots for the primary
elections does nothing to establish a real and immediate threat
that they will again fail to receive their absentee ballots for
the November 2020 general election,” id. (alterations and
quotation marks omitted) (quoting City of Los Angeles v. Lyons,
461 U.S. 95, 105 (1983)). Defendants contend that “Plaintiffs
have put forth no evidence (or allegation) supporting
Plaintiffs’ inference that they failed to receive their absentee
ballots for the primary elections due to any purported recent
changes to USPS policies.” Defs.’ Opp’n, ECF No. 55 at 31.
Because Plaintiffs cannot rule out “several alternative
explanations” for why Plaintiffs never received their absentee
ballots in time for the primary elections, Defendants argue that
this “undermines” Plaintiffs’ future injury allegation and
theory of redressability. Id.
The Court disagrees. Plaintiffs exclusively seek
prospective injunctive relief. Am. Compl., ECF No. 49 ¶ 10
(“This is a suit for injunctive relief to protect the
Plaintiffs’ right to vote by ensuring that the United States
Postal Service delivers absentee and mail-in ballots in a timely
fashion to them and then, delivers their executed ballots to
election officials in time to be counted.”). Under D.C. Circuit
precedent, “the proper way to analyze an increased-risk-of-harm
claim is to consider the ultimate alleged harm,” which in this
20
case would be disenfranchisement in the November 2020 election,
“as the concrete and particularized injury and then to determine
whether the increased risk of such harm makes injury to an
individual citizen sufficiently ‘imminent’ for standing
purposes.” Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C.
Cir. 2017) (quoting Food & Water Watch, Inc. v. Vilsack, 808
F.3d 905, 913 (D.C. Cir. 2015)). Here, Plaintiffs provided
evidence that changes in USPS policy caused and will continue to
cause delays in the delivery of mail. See Grimmer Decl., ECF No.
57-4 ¶ 10 (decrease in the number of extra or late trips will
delay the delivery of letters); Tr., Jones v. U.S. Postal Serv.,
No. 20-cv-6516 (S.D.N.Y. Sept. 16, 2020), Ex. D to Pls.’ Reply,
ECF No. 57-5 at 24-25 (mail processing clerk at the San Antonio
Main Post Office testified under oath that the plant was
experiencing a “two to three day[]” delay and expected the delay
to continue into November because (1) “they’re shifting people
around into positions of no expertise”; (2) “they’re hiring
brand new employees with no official training to know how to
expedite the mail properly and running the right sort programs”;
and (3) “they’re cutting back on overtime”).
Plaintiffs have cited evidence that delays in mail service,
both locally and nationally, correlate with the timing of the
USPS policy changes in July and have continued at least into the
month of August. See Pls.’ Reply, ECF No. 57 at 9-10 (“By the
21
second week of August 2020, on-time delivery of First-Class Mail
nationwide had fallen nearly 10 percentage points compared to
the week preceding the changes.” (quoting Senate Report at 3));
Senate Report at 3 (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”). In addition,
USPS’s own data shows declines in on-time delivery of First-
Class Mail continuing into August. Grimmer Decl., ECF No. 57-4
at 24-25. The Court thus finds that Plaintiffs have shown they
face a “‘substantial risk’ of future injury,” Attias, 865 F.3d
at 627, that is “fairly traceable” to the USPS policy changes,
Lujan, 504 U.S. at 560.
Defendants also claim that even if the USPS policy changes
did cause the primary ballots to never arrive, that still does
“not support an inference that these delays will affect
Plaintiffs in particular again” because Plaintiffs have not
alleged that the mail delays “affect all voters across-the-board
. . . [or that they] are uniquely susceptible to these delays.”
Defs.’ Opp’n, ECF No. 55 at 32. Defendants argue that
“Plaintiffs’ allegations also fail to account for the fact that
the delays that affected USPS in July are being remedied, . . .
or the tremendous amount of resources that USPS has pledged to
support the upcoming election.” Id. However, as stated above,
there is sufficient evidence to show that Defendants’ policy
22
changes continue to have nationwide effects on the timely
delivery of mail. See Senate Report 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”); Grimmer Decl., ECF No. 57-4 at 24-
25.
For all of these reasons, the Court finds that Plaintiffs’
have standing.
2. The Applicable Legal Standard
Prior to considering the likelihood of success on the
merits, the parties disagree on which legal standard should
govern Plaintiffs’ claim that the USPS policy changes infringe
upon their constitutional right to vote.
Plaintiffs argue that “[d]elaying mail-in ballots places an
unconstitutional burden on Plaintiffs’ right to vote and merits
strict scrutiny.” Pls.’ Reply, ECF No. 57 at 22. In Plaintiffs’
view, “[l]aws that govern the handling of ballots are reasonably
understood as directly regulating the election, whether the
ballot is handled by a poll worker or a mail handler or letter
carrier.” Id. at 21. Defendants, on the other hand, argue that
because the USPS policy changes only indirectly affect
Plaintiffs, the rational basis test should apply. Defs.’ Mot.,
ECF No. 55 at 33. Defendants contend that the cases Plaintiffs
23
cite in favor of applying strict scrutiny are inapplicable
because the cases are factually distinguishable or only concern
state election laws that directly regulate the electoral
process. Id. But even if the Court considers this case analogous
to the line of cases involving “election laws,” Defendants
contend that the Court would still apply the rational basis test
under McDonald v. Board of Election Commissioners of Chicago,
394 U.S. 802 (1969).
In McDonald, the Supreme Court held that an Illinois
statute that denied certain inmates mail-in ballots did not
impose an unconstitutional burden on their right to vote. Id. at
807. Rather, the statute only restricted their asserted right to
receive an absentee ballot, and they were therefore not
“absolutely prohibited from voting by the State.” Id. at 808 &
n.7. The Supreme Court noted that “the record is barren of any
indication that the State might not, for instance, possibly
furnish the jails with special polling booths . . . or provide
guarded transportation to the polls.” Id. at 808 n.6. The Court
further noted that a more rigid standard is proper only when the
policy or practice at issue categorically “den[ies] [plaintiffs]
the exercise of the franchise . . . preclud[ing] [them] from
voting.” Id. at 807-08. Accordingly, the Supreme Court upheld
the statute under rational basis review. Id. at 811. Defendants
argue that McDonald is controlling because “Plaintiffs are
24
claiming that USPS policies may deprive them of the ability to
cast votes through mail-in ballots” and Plaintiffs’ “position is
not materially different from the county jail inmates in
McDonald who were physically restricted from the polls.” Defs.’
Opp’n, ECF No. 55 at 34-35.
Although Plaintiffs concede that they are not wholly
prohibited from voting, as they may choose to vote in person if
they do not receive a mail-in ballot in time, the Court finds
that McDonald is inapplicable here. First, Defendants
mischaracterize Plaintiffs’ claim in this case. Plaintiffs do
not broadly challenge the USPS policy changes as denying them
the right to receive mail-in ballots, as was at issue in
McDonald. There is no dispute that Plaintiffs are eligible to
vote by mail under their respective state laws. Rather, the
question here is whether USPS may implement a policy that may
arbitrarily prevent a large swath of voters, eligible to receive
a mail-in ballot, from receiving their ballots in the first
place. Second, as the Supreme Court noted in a concurring
opinion, McDonald involved a “relatively trivial inconvenience
encountered by a voter unable to vote by absentee ballot when
other means of exercising the right to vote [were] available.”
O’Brien v. Skinner, 414 U.S. 524, 532 (1974) (Marshall, J.,
concurring) (noting that the record in McDonald was “barren of
any indication” that the State would not provide alternative
25
avenues to vote). Here, however, the Court concludes that in-
person voting in the midst of the ongoing COVID-19 pandemic is
more than a mere “trivial inconvenience.” Because COVID-19
spreads mainly from person-to-person, see Frequently Asked
Questions, Centers for Disease Control and Prevention (last
updated Sept. 18, 2020), https://www.cdc.gov/coronavirus/2019-
ncov/faq.html, all voters, including Plaintiffs, place
themselves at risk of contracting a potentially terminal
infection should they choose to vote in person as a result of
failing to receive their mail-in ballots in time. In such
circumstances, which were absent in McDonald, the Court finds
there is a burden on individuals’ ability to effectuate their
right to vote. Accordingly, McDonald’s rational basis test is
inappropriate.
The Court also declines to apply strict scrutiny to the
claim automatically, as Plaintiffs suggest. Rather, the Court
finds that the Anderson-Burdick framework, derived from Anderson
v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504
U.S. 428 (1992), likely applies here. Under the Anderson-Burdick
line of cases, courts have recognized that “‘[e]lection laws
will invariably impose some burden upon individual voters,’ and
that not all laws burdening the right to vote are subject to
strict scrutiny.” Libertarian Party v. D.C. Bd. of Elections &
Ethics, 682 F.3d 72, 73-74 (D.C. Cir. 2012) (alteration in
26
original) (quoting Burdick, 504 U.S. at 433-34). Instead, courts
“must first consider the character and magnitude of the asserted
injury” to the plaintiffs’ right to vote against “the precise
interests put forward by the [government] as justifications for
the burden imposed[,]” including “the legitimacy and strength of
each of those interests” and “the extent to which those
interests make it necessary to burden the plaintiff’s rights.”
Anderson, 460 U.S. at 789. The level of scrutiny a court should
apply depends on the burden. When a voter’s rights are
“subjected to severe restrictions, the regulation must be
narrowly drawn to advance a state interest of compelling
importance.” Burdick, 504 U.S. at 434 (internal quotation marks
omitted). But when a voter’s rights are subjected only to
“reasonable, nondiscriminatory restrictions,” “the State’s
important regulatory interests are generally sufficient to
justify the restrictions.” Id. (internal quotation marks
omitted). If the restriction falls somewhere between those two
poles, then the court uses a flexible analysis, “where the more
severe the burden, the more compelling the [government’s]
interest must be.” Soltysik v. Padilla, 910 F.3d 438, 444 (9th
Cir. 2018).
Courts have applied this framework in the context of non-
election laws that have an effect on voters’ rights or political
candidates’ rights. For example, in Monserrate v. New York State
27
Senate, 599 F.3d 148 (2d Cir. 2010), the United States Court of
Appeals for the Second Circuit addressed a First Amendment
challenge to the New York Senate’s decision to expel a senator
who had been accused of domestic violence. Id. at 152-53. The
Second Circuit found that the Anderson-Burdick line of cases was
not limited to the pre-vote election law context, stating that
the Supreme Court had “minimized the extent to which voting
rights are distinguishable from ballot access cases” because
“the rights of voters and the rights of candidates do not lend
themselves to neat separation.” Id. at 155 (internal citations
and quotation marks omitted). Accordingly, the Second Circuit
applied the Anderson-Burdick test in analyzing whether the
senator’s expulsion burdened constitutional rights related to
voting and political association. Id.; see also Peeper v.
Callaway Cnty. Ambulance Dist., 122 F.3d 619, 622-23 (8th Cir.
1997) (analyzing a board resolution prohibiting a newly elected
ambulance board member from voting on certain matters because
her husband worked for the ambulance district under the
Anderson-Burdick framework); Hussey v. City of Portland, 64 F.3d
1260, 1262, 1264 (9th Cir. 1995) (applying the Anderson-Burdick
framework in evaluating the constitutionality of an “ordinance
requiring non-residents to consent to annexation as a condition
of receiving a subsidy, or reduction in hook-up costs, for
mandated sewer connections,” finding that consents were the
28
“constitutional equivalent” of voting). In addition, courts
within this Circuit have relied upon the Anderson-Burdick
framework in analyzing “state” practices that allegedly burden
parties’ ability to cast their votes effectively under both the
Fifth Amendment and the Fourteenth Amendment. See, e.g.,
Libertarian Party, 682 F.3d at 74 (analyzing under Burdick
plaintiffs’ First and Fifth Amendment claims that the District,
“consistent with its regulations, never reported which
individuals were penciled in by voters choosing the write-in
option or how many votes any such individual accrued”); Turner
v. D.C. Bd. of Elections & Ethics, 77 F. Supp. 2d 25, 30, 33
(D.D.C. 1999) (RWR) (analyzing the constitutionality of
Congress’s 1998 District of Columbia Appropriations Act under
Burdick, among other standards, where the Act barred the D.C.
Board of Elections and Ethics from counting, releasing, and
certifying the results of a referendum). But see LaRouche v.
Fowler, 152 F.3d 974, 994 (D.C. Cir. 1998) (finding that the
Burdick test was inappropriate in a challenge against the
Democratic National Committee’s internal rules because the test
“was not designed for a case in which the First Amendment weighs
on both sides of the balance”).
Here, regardless of the intent behind the changes, the USPS
policy “will invariably impose some burden upon individual
voters” and their constitutional rights in an election year.
29
Libertarian Party, 682 F.3d at 73-74. The USPS directly affects
how Election Mail is handled and the speed with which Election
Mail arrives at its intended destination. While the USPS serves
many other functions, its role in handling ballots compels the
conclusion that USPS plays an active role in ensuring that
elections are conducted in a “fair and honest” manner, “rather
than chaos.” Burdick, 504 U.S. at 433 (citation omitted).
Furthermore, the Court is not convinced that the Anderson-
Burdick framework is limited to only state government and not
federal government actions. To so find would effectively
exclude, for example, any federal legislation impacting
elections in the District of Columbia pursuant to Congress’s
plenary power over the District. See U.S. Const. art. I § 8;
Palmore v. United States, 411 U.S. 389, 397 (1973). In addition,
this case does not present the same concerns as the D.C. Circuit
noted in LaRouche v. Fowler, 152 F.3d 974 (D.C. Cir. 1998),
where the court noted that applying Anderson-Burdick to the
rules of a non-state political party was inappropriate because
“the presence of First Amendment interests on both sides of the
equation makes inapplicable the test applied to electoral
restrictions where the First Amendment weighs on only one side.”
Id. at 995.
Although Defendants argue that failing to apply the
rational basis test to “non-election policies that may have some
30
indirect impact on the electoral process would produce odd
results,” including that “any deficiency in USPS service could
give rise to a constitutional voting rights claim,” Defs.’
Opp’n, ECF No. 55 at 33-34, the Court disagrees. The Court first
notes that Defendants’ claim that the policy changes implemented
by USPS only inadvertently or indirectly affect voting rights is
unpersuasive, particularly in a year in which the global COVID-
19 pandemic has forced many individuals to decide either to vote
by mail-in ballot or to not vote at all. See Jones v. U.S.
Postal Serv., No. 20-cv-6516, 2020 WL 5627002, at *14 (S.D.N.Y.
Sept. 21, 2020) (“The Court . . . disagrees with the Government
that this case does not implicate ‘the counting of votes.’ To
hold otherwise would be to ignore the facts at hand: a large
number of voters will be exercising their right to vote in the
November 2020 election by placing their ballots in the mail.
There is simply no reason for the Court to ignore the severe
reality that the country is in the middle of a deadly pandemic .
. . .”). For the upcoming election in November, it is estimated
that 80 million ballots will be submitted by mail. See Hersh
Decl., ECF No. 57-6 ¶ 14. The USPS policy thus directly impacts
and controls the ability of millions of citizens to have their
vote counted. Defendants themselves do not dispute their unique
role within the electoral process and their “longstanding
commitment to the timely delivery of Election Mail.” Defs.’
31
Opp’n, ECF No. 55 at 13. Even beyond delivering mail-in ballots,
USPS conducts “extensive outreach to state and local election
officials to support effective use of postal services to
facilitate the distribution and return of ballots”; gives an
“Election Mail Kit” to “approximately 11,500 state and local
election officials”; and has established a separate “bipartisan
Election Mail Committee to actively oversee USPS’s support of
Election Mail for the Election.” Id. at 12-13. This relationship
between the USPS and the electoral process suggests a strong
connection with the protection of voters’ rights. In addition, a
finding that the Anderson-Burdick framework applies does not
necessarily mean that “any deficiency in USPS service could give
rise to a constitutional voting rights claim.” Id. at 33. This
case does not allege that inadvertent, run-of-the-mill delays in
the postal service will infringe on their right to vote in the
November 2020 election. Instead, Plaintiffs are alleging that a
series of deliberate nationwide changes in postal service
procedures has caused a widespread slow-down in mail delivery
times, that the changes directly affect their ability to vote,
and that Defendants are aware that the policy changes affect the
timely delivery of mail, including Election Mail. See Pls.’
Reply, ECF No. 57 at 7-10.
Accordingly, the Court finds that the Anderson-Burdick
framework likely applies to Plaintiffs’ claim.
32
3. Plaintiffs Have Shown That They Are Likely To
Succeed On The Merits Of Their Constitutional Claim
Plaintiffs argue that the USPS policy changes infringe upon
their constitutional right to vote and violate the Equal
Protection Clause. The Court agrees that, under the Anderson-
Burdick framework, Plaintiffs have shown that they are likely to
succeed on the merits of their claim.
As explained above, under the Anderson-Burdick framework,
the Court must determine whether “the character and magnitude of
the asserted injury to the rights protected by the First and
[Fifth] Amendments that the plaintiff seeks to vindicate”
outweighs “the precise interests put forward by the State as
justifications for the burden imposed by its rule,” taking into
account “the extent to which those interests make it necessary
to burden the plaintiff’s rights.” Burdick, 504 U.S. at 433-34.
Next, the court evaluates how much deference to afford to the
government’s interests. If voting rights are “subjected to
severe restrictions, the regulation must be narrowly drawn to
advance a state interest of compelling importance.” Id. at 434
(internal quotation marks omitted). But when a voter’s rights
are subjected only to “reasonable, nondiscriminatory
restrictions,” then courts apply a rational basis review. Id.
(internal quotation marks omitted).
“It is beyond cavil that ‘voting is of the most fundamental
33
significance under our constitutional structure.’” Burdick, 504
U.S. at 433 (quoting Ill. Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 184 (1979)); see also Wesberry v. Sanders,
376 U.S. 1, 17 (1964) (“Other rights, even the most basic, are
illusory if the right to vote is undermined.”). “Obviously
included within the right to choose, secured by the
Constitution, is the right of qualified voters within a state to
cast their ballots and have them counted . . . .” United States
v. Classic, 313 U.S. 299, 315 (1941). The right to vote
“includes the right to have one’s vote counted on equal terms
with others,” League of Women Voters of Ohio v. Brunner, 548
F.3d 463, 476 (6th Cir. 2008), and applies to the “initial
allocation of the franchise” as well as to “the manner of its
exercise,” id. at 477 (quoting Bush v. Gore, 531 U.S. 98, 104-05
(2000)). Thus, where a policy creates a situation where “[a]
large number of ballots will be invalidated, and consequently,
not counted based on circumstances entirely out of the voters’
control,” the “burden [on the right to vote] is exceptionally
severe.” Gallagher v. N.Y. State Bd. of Elections, No. 20-cv-
5504, 2020 WL 4496849, at *16 (S.D.N.Y. Aug. 3, 2020); see also
Doe v. Walker, 746 F. Supp. 2d 667, 679-80 (D. Md. 2010) (“By
imposing a deadline which does not allow sufficient time for
absent uniformed services and overseas voters to receive, fill
out, and return their absentee ballots, the state imposes a
34
severe burden on absent uniformed services and overseas voters’
fundamental right to vote.”).
Here, the Court finds that the “character and magnitude” of
Plaintiffs’ asserted injury to the right to vote is significant.
Although Defendants call Plaintiffs’ harm “speculative,” Defs.’
Opp’n, ECF No. 55 at 35, Plaintiffs have provided sufficient
evidence suggesting that Defendants’ policy regarding extra and
late trips has caused and will continue to cause inconsistency
and arbitrary delays in the delivery of mail across the United
States, placing at risk Plaintiffs’ ability to receive their
mail-in ballots in time or have them arrive at their local
election office in time. See Senate Report at 3 (stating that
“[b]y the second week of August 2020, on-time delivery of First-
Class Mail nationwide had fallen nearly 10 percentage points
compared to the week preceding the [USPS policy changes]”);
Grimmer Decl., ECF No. 57-4 at 24-25 (indicating that USPS data
shows that on-time delivery of First-Class Mail had not bounced
back to the average experienced prior to July). For example,
Plaintiffs explain that “[e]ven in states where ballots need
only be postmarked by Election Day, delays of two to three days
are likely to disenfranchise a large portion of the electorate,”
Pls.’ Reply, ECF No. 57 at 11, because those ballots still have
to arrive at the election office in time to be counted, see,
e.g., Voting by Mail-in or Absentee Ballot, Commonwealth of Pa.
35
(last visited Oct. 8, 2020), https://www.votespa.com/Voting-in-
PA/Pages/Mail-and-Absentee-Ballot.aspx (explaining that, in
Pennsylvania, ballots postmarked by Election Day must be
received within three days after Election Day). Furthermore,
Plaintiffs simply cannot predict when their ballots will arrive
at their intended destination. When they will arrive, and
whether they will arrive in time to be counted, instead depends
upon “arbitrary factors, such as the particular USPS branch that
handles their ballots.” Jones, 2020 WL 5627002, at *16. Indeed,
USPS itself has acknowledged the threat of voter
disenfranchisement, warning in a July 29, 2020 letter to 46
states and the District of Columbia that USPS “cannot guarantee
that all ballots cast by mail for the 2020 presidential election
will arrive in time to be counted.” Am. Compl., ECF No. 49 ¶
181; see also Pls.’ Reply, ECF No. 57 at 10 (citing a July 29,
2020 letter from the USPS General Counsel). Thus, in a year in
which it is estimated that 80 million citizens are anticipated
to submit their votes via USPS, and between 3.7% and 9.3% of
those are estimated to mail ballots on the Saturday before
Election Day, the potential for voter disenfranchisement is
immense. See Hersh Decl., ECF No. 57-6 ¶¶ 14, 21-23.
Furthermore, Defendants’ policy changes place an
especially severe burden on the Plaintiffs who have no other
reasonable choice than to vote by mail, such as those who may be
36
at a high risk of developing a severe case of COVID-19 should
they become exposed to the virus at the polling place, who live
with individuals at a high risk of severe COVID-19 symptoms, and
who are not physically able to travel to the polls because they
are out of the state. See Pls.’ Mot., ECF No. 15 at 11-13. For
these individuals, mail-in voting is either the only choice or
the only safe choice they have for themselves and their loved
ones. Although Defendants point out that Plaintiffs may still
vote in person, the Court nonetheless finds that when nationwide
policy changes prevent an eligible voter from receiving the
mail-in ballot to which she is entitled, and as a result she
must choose between either disenfranchisement or risking
contracting a potentially terminal disease herself and infecting
at-risk persons with whom she lives, the right to vote is
heavily burdened.
Defendants argue that the Plaintiffs’ claim must fail
because there is no constitutional right to vote by mail and
states are not required to offer mail-in voting. Defs.’ Opp’n,
ECF No. 55 at 32-33. Defendants contend that “[i]f a State can
prohibit mail-in voting . . . then USPS policies which may
indirectly limit when a ballot must be mailed cannot be
constitutionally suspect.” Id. Defendants miss the point.
Plaintiffs here are not alleging that Defendants are denying
them a right to vote by mail. Rather, Plaintiffs are alleging
37
that the Defendants’ policy changes undermine the integrity of
the November 2020 election by causing delays in the delivery of
election mail, risking disenfranchisement of thousands of
voters. Defendants, however, claim that the arbitrariness of the
delays actually cuts in their favor. Id. at 35-36. Defendants
point out that the USPS policy changes “do not expressly (or
necessarily) deny anyone a mail-in ballot” and that “[t]o the
extent there are mail delays, or certain mail goes undelivered,
there is no allegation that USPS has determined in advance the
class of persons to be affected.” Id. But whether there is
purposeful or intentional discrimination is irrelevant to the
Court’s analysis here. See Bush, 531 U.S. at 104–05 (finding an
Equal Protection Clause violation without making a finding of
discriminatory intent). “Having once granted the right to vote
on equal terms, the State may not, by later arbitrary and
disparate treatment, value one person’s vote over that of
another.” Id.; see also Reynolds v. Sims, 377 U.S. 533, 557
(1964) (noting that “arbitrary and capricious action” can
violate the Fourteenth Amendment (quoting Baker v. Carr, 369
U.S. 186, 226 (1962)). For example, if one of the Plaintiffs
submits her ballot, but it does not make it to her local
election office in time because of delays caused by the USPS
policy, “her ‘right to full and effective participation in the
political processes of h[er] [Nation]’s legislative bodies’ is
38
impaired relative to that of both in-state and out-of-state
voters with access to USPS branches functioning effectively.”
Jones, 2020 WL 5627002, at *21 (alteration in original) (quoting
Reynolds, 377 U.S. at 565); see also Brunner, 548 F.3d at 478
(stating that the allegation, among others, that “[p]rovisional
ballots were not distributed to appropriate voters, causing
voters to be denied the right to vote . . . . if true, could
support a troubling picture of a system so devoid of standards
and procedures as to violate” the Constitution).
Against such injuries, Defendants assert that the policy
changes are intended “to increase efficiency” and “minimize
unnecessary costs.” Defs.’ Opp’n, ECF No. 55 at 36. Defendants
contend that these general “regulatory” interests survive
rational basis review, id. (quoting Libertarian Party, 682 F.3d
at 77), and that the Court may not find such interests are
irrational because it “disagrees with the policy choice,” id.
(citing FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14
(1993). Plaintiffs, on the other hand, dispute that Defendants’
justifications are sufficient to justify the burden imposed on
voters. Plaintiffs argue that the USPS policy changes were in
fact inefficient and increased unnecessary costs. Pls.’ Reply,
ECF No. 57 at 22-23. Furthermore, Plaintiffs contend that “USPS
has no constitutional mandate to cut costs” and that
“[v]iolating an important constitutional right in order to
39
achieve a goal not within its mandate . . . is obviously not
legitimate or rational prioritization.” Id. at 23.
Defendants are correct that “a statutory classification
that neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the
classification.” Beach Commc’ns, Inc., 508 U.S. at 313. However,
the Court finds that the bar is higher here. Given the severity
of Plaintiffs’ harms, the Court must instead determine whether
Plaintiffs’ injuries are outweighed by Defendants’
justifications under at least an intermediate level of scrutiny,
if not strict scrutiny. The Court finds that Defendants do not
meet either.
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.
These harms justify a high level of scrutiny, yet Defendants
only generally assert that “USPS did renew its focus on
40
compliance with pre-set schedules in order to increase
efficiency, and minimize unnecessary costs.” Defs.’ Opp’n, ECF
No. 55 at 36. Defendants’ reasons for administrative cost
savings are insufficient: as the Supreme Court has explained,
the “vindication of conceded constitutional rights cannot be
made dependent upon any theory that it is less expensive to deny
than to afford them.” Watson v. City of Memphis, 373 U.S. 526,
537 (1963). Furthermore, Defendants have failed to provide any
reasons regarding why implementation of the USPS policy changes
were necessary during a nationwide election season in the middle
of a pandemic, particularly in view of Defendants’ express
acknowledgement that they anticipated “mail left behind or mail
on the workroom floor or docks.” Mandatory Stand-Up Talk: All
Employees (July 10, 2020), https://federalnewsnetwork.com/wp-
content/uploads/2020/07/071020-stand-up-talk.pdf. 16 And despite
Defendants’ assertions to the contrary, as of the end of August,
USPS service scores remained lower that the pre-policy average.
See Grimmer Decl., ECF No. 57-4 at 24-25; Pls.’ Reply, ECF No.
57 at 9-10 (“By the second week of August 2020, on-time delivery
of First-Class Mail nationwide had fallen nearly 10 percentage
points compared to the week preceding the changes.” (quoting
Senate Report at 3)).
16The Court takes judicial notice of the USPS document regarding
transportation changes. Fed. R. Evid. 201(b)(2).
41
Accordingly, the Court finds that Plaintiffs are likely to
succeed on their constitutional claim.
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).
Plaintiffs argue that, because the USPS policy changes
infringe upon Plaintiffs’ constitutional right to vote,
including in the November 2020 election, that alone is
sufficient to show irreparable injury for the purposes of
seeking equitable relief. Pls.’ Mot., ECF No. 15 at 25.
Plaintiffs further argue that President Trump has “incentivized”
voters to “remain away from the polls” in the November 2020
election by “making statements suggesting that mail-in voting is
rife with fraud.” Id. at 25-26 (quoting Raysor v. DeSantis, No.
19A1071, 2020 WL 4006868, at *3 (U.S. July 16, 2020) (Sotomayor,
J., dissenting)). Defendants, in opposition, contend that
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Plaintiffs’ contention that USPS policies have denied them the
right to vote is “insufficient and too speculative” to establish
an irreparable injury. Defs.’ Opp’n, ECF No. 55 at 40. Moreover,
Defendants argue that Plaintiffs have not identified any actions
that may “incentivize” them not to vote. Id. Nor have Plaintiffs
established than any future harms are likely to recur given that
“USPS has taken a number of steps that have resulted in service
performance improving.” Id. at 41.
The Court finds that Plaintiffs have sufficiently shown
they will likely suffer irreparable harm absent a preliminary
injunction. 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.”). And, as
described above, Plaintiffs have provided evidence showing that,
due to delays in the delivery of mail, there is a substantial
risk that Plaintiffs will suffer an undue burden on their
constitutional right to vote. See Obama for Am. v. Husted, 697
F.3d 423, 436 (6th Cir. 2012) (“A restriction on the fundamental
right to vote . . . constitutes irreparable injury.”); Cardona
v. Oakland Unified Sch. Dist., Cal., 785 F. Supp. 837, 840 (N.D.
Cal. 1992) (explaining abridgement “or dilution of a right so
fundamental as the right to vote constitutes irreparable
43
injury”). There is “no do-over and no redress” once the election
has passed. League of Women Voters of N.C. v. North Carolina,
769 F.3d 224, 247 (4th Cir. 2014). The Court further finds
Plaintiffs would face irreparable harm in being forced to make a
decision on how to vote before they have all of the information
they require. Cf. McIntyre v. Ohio Elections Comm’n, 514 U.S.
334, 346–47 (1995) (“In a republic where the people are
sovereign, the ability of the citizenry to make informed choices
among candidates for office is essential, for the identities of
those who are elected will inevitably shape the course that we
follow as a nation.”). Finally, regarding Defendants’ assertion
that Plaintiffs have failed to show the likelihood of delivery
delays, USPS data suggests that on-time delivery for First Class
Mail has not bounced back since the implementation of the policy
changes, and Defendants have provided no other information
suggesting that that will change prior to Election Day. See
Grimmer Decl., ECF No. 57-4 at 24-25; Pls.’ Reply, ECF No. 57 at
9-10.
The Court finds that the Plaintiffs have sufficiently shown
they will likely suffer irreparable harm absent a preliminary
injunction due to the restriction on the fundamental right to
vote.
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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
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, 206 (D.D.C. 2014) (CRC) (quoting Camenisch, 451
U.S. at 395). “The purpose of . . . interim relief is not to
conclusively determine the rights of the parties, Univ. 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)
(second alteration in original).
Plaintiffs contend that the balance of the equities and the
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public interest favor a preliminary injunction because it is in
the public interest to prevent constitutional violations and to
allow eligible citizens the ability to exercise their right to
vote. Pls.’ Mot., ECF No. 15 at 26-27. Defendants do not contest
the equities in Plaintiffs’ favor. Rather, Defendants argue that
the public interest and the balance of the equities disfavor
granting relief because (1) “USPS is currently undertaking
extensive efforts to facilitate the timely delivery of Election
Mail”; (2) “[t]here is no dispute that USPS has the capacity . .
. to handle the anticipated surge in Election Mail”; (3)
“Plaintiffs have an opportunity to avoid any harm by mailing in
their ballots without delay”; and (4) granting relief “could
require the Court to act as an overseer of the agency’s day-to-
day activities.” Defs.’ Opp’n, ECF No. 55 at 41-42.
Here, the balance of the equities and the public interest
favor an injunction. “By definition, ‘[t]he public interest . .
. favors permitting as many qualified voters to vote as
possible.” League of Women Voters of N.C., 769 F.3d at 247-48
(quoting Husted, 697 F.3d at 437). It is also clearly in the
public interest to require that USPS implement policies that do
not infringe upon constitutional rights. Newby, 838 F.3d at 12
(“There is generally no public interest in the perpetuation of
unlawful agency action.”).
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D. Request For Preliminary Injunction
Plaintiffs’ motion for preliminary injunction requests the
following relief:
(1) return postal operations and restore
postal service to that in place on January 1,
2020; (2) replace or restore the removed the
high-speed sorting machines and mailboxes that
have been taken out of service and put them
back into operation; (3) restore overtime pay
and lift the hiring freeze so that USPS can
hire additional employees when and where
necessary to ensure the timely processing and
delivery of mail-in ballots; (4) make all late
mail deliveries instead of letting mail be
delayed or go undelivered; (5) restore
seasoned employees to their former positions,
including the employees who were reassigned or
displaced in the recent USPS reorganization;
and (6) refrain from any and all other conduct
that is intended to interfere and/or
interferes with Plaintiffs’ fundamental right
to vote in United States elections, including
but not limited to the 2020 presidential
election.
Pls.’ Appl. Prelim. Inj., ECF No. 14. To the extent the Court
deems that certain aspects of the proposed preliminary
injunction are inappropriate, the Court has the authority to
adjust the requested relief as it deems fit. See Richmond
Tenants Org. v. Kemp, 956 F.2d 1300, 1308 (4th Cir. 1992) (“It
is well established . . . that a federal district court has wide
discretion to fashion appropriate injunctive relief . . . .”).
Although Plaintiffs have alleged that they are at risk of
potential disenfranchisement in the November election due to the
entirety of the June and July USPS Postal Policy Changes, the
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Court finds that Plaintiffs have provided supporting evidence
regarding only some of those policy changes.
The Court shall grant Plaintiffs’ request to “restore
overtime pay” and to “make all late mail deliveries instead of
letting mail be delayed or go undelivered.” As described above,
the Court finds that Plaintiffs have established that, without a
preliminary injunction, Plaintiffs are likely to suffer harms
based upon this specific conduct.
However, the Court declines to issue a preliminary
injunction to “return postal service to that in place on January
1, 2020.” Plaintiffs have alleged that USPS policy changes
implemented in June and July 2020 have led to significant delays
in the on-time delivery of mail, and the Court therefore sees no
reason to order USPS to return its operations to the status quo
a full six months prior to those changes. In addition, the Court
finds that Plaintiffs have submitted little to no evidence
connecting the removal of high-speed sorting machines and
mailboxes to any resulting delays in mail service. Plaintiffs
also have not provided sufficient evidence to warrant a Court
order regarding their request to “restore seasoned employees to
their former positions” and “lift the hiring freeze.” Finally,
the Court denies Plaintiffs’ request with regard to Defendants
“refrain[ing] from any and all other conduct that is intended to
interfere and/or interferes with Plaintiffs’ fundamental right
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to vote in United States elections, including but not limited to
the 2020 presidential election” as overly broad and lacking the
specificity required by Federal Rule of Civil Procedure 65. See
Fed. R. Civ. P. 65(d) (providing that “[e]very order granting an
injunction . . . must: (A) state the reasons why it issued; (B)
state its terms specifically; and (C) describe in reasonable
detail . . . the act or acts restrained or required”).
The Court also finds it inappropriate to appoint a special
master to supervise implementation of this Court’s Order. While
Plaintiffs cite to National Organization for Reform of Marijuana
Laws v. Mullen, 112 F.R.D. 120 (N.D. Cal. 1996) [hereinafter
“NORML”], in support of their position, the case is readily
distinguishable. In NORML, the court had already issued a
preliminary injunction, and the plaintiffs had subsequently
alleged “numerous instances of violations” of that injunction.
112 F.R.D. at 121. The court found that because “[s]uch evidence
of noncompliance with an injunction that first issued nearly a
year earlier portends continuing violations, especially when
viewed in light of the fast-paced and wide-ranging character of
CAMP surveillance and raid activities, the difficult legal
issues involved, and the numerous affirmative measures that the
Court has ordered defendants to undertake” the “circumstances
constitute an ‘exceptional condition’ and call for the
appointment of a Special Master.” Id. Here, in contrast, there
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is no history of Defendants failing to comply with Court orders,
no difficult legal issues involved, and relatively few measures
for Defendants to take. Because reference to a master shall be
the exception and not the rule, Fed. R. Civ. P. 53(a), the Court
finds that implementation of its Order is not so complex as to
constitute such exceptional circumstances.
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and
DENIES IN PART 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
October 8, 2020
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