Judge blasts new Postal Service mandates as 'intentional effort to disrupt' and delegitimize the 2020 elections and to disenfranchise voters...
UPDATE 9/22/20: 2nd federal court enjoins USPS; separate preliminary injunction motion pending in D.C. federal court...
By Ernest A. Canning on 9/18/2020, 3:30pm PT  

On Thursday, by way of a 13-page Order [PDF] issued in State of Washington v. Trump, U.S. District Court Judge Stanley A. Bastian not only enjoined the United States Postal Service (USPS) from continuing to implement the "transformative" nationwide changes to its mail delivery capacities effectuated since July under the direction of Postmaster General Louis DeJoy, but also ordered USPS to "replace, reassemble or reconnect" all of the high-speed sorting and labeling machines that had previously been decommissioned.

In his decision, Judge Bastian found that the 14 State Plaintiffs --- Attorneys General in WA, CO, CT, IL, MD, MI, MN, NV, NM, OR, RI, VT, VA, WI --- "established a likelihood that they will prevail on their claims that the [USPS] and Postmaster General violated 39 U.S.C. §3661". He characterized DeJoy's mandates as an "attack on the Postal Service [that] is likely to irreparably harm the states’ ability to administer the 2020 general election."

As we explained last month when covering the States' complaint, under Section 3661(b), DeJoy had a "non-discretionary duty" to request and obtain an advisory opinion from the Postal Regulatory Commission (PRC) before instituting "a change in the nature of postal services which will generally affect service on a nationwide or a substantially nationwide basis." Under that statute, the PRC cannot issue that advisory opinion "until an opportunity for a hearing on the record...has been afforded to...users of the mail." At that hearing, "an officer of the [PRC]...shall be required to represent the public interest."

DeJoy's failure to comply with those statutory requirements, Judge Bastion noted, "suggests" the USPS "acted ultra vires" --- beyond its power --- when it effectuated DeJoy's "transformative" changes.

The court also found that the Plaintiffs established a likelihood that the USPS "actions have infringed" upon the "States' constitutional right to appoint presidential electors and set the time, place, and manner of elections; that the current changes are the result of an effort by the current Administration to use the [USPS] as a tool in partisan politics, which violates the spirit and purpose of the Postal Reorganization Act and the Postal Accountability and Enhancement Act."

In his written ruling, Judge Bastian blasted the USPS actions, charging they would result in "voter disenfranchisement"...

Although not readily apparent on the surface, at the heart of DeJoy's and the Postal Service's actions is voter disenfranchisement. This is evident in President Trump's highly partisan words and tweets, the actual impact of changes on primary elections that resulted in uncounted ballots, and recent attempts and lawsuits by the Republican National Committee and the President's campaign to stop States' efforts to bypass the Postal Service by utilizing ballot drop boxes, as well as the timing of the changes. It is easy to conclude that the recent Postal Services' changes is an intentional effort on the part of the current Administration to disrupt and challenge the legitimacy of upcoming local, state and federal election [emphasis added].

The court also noted that, in their Motion for Preliminary Injunction, the States alleged that, "while the removal of sorting machines is taking place across the country, the removals would particularly affect sorting capacity in states where recent presidential elections have been particularly close." Judge Bastion went on to note that "72% of the decommissioned high speed mail sorting machines…were located in counties where Hillary Clinton receive[d] the most votes in 2016."

Although the issue before the court --- a motion for a nationwide preliminary injunction --- is, by legal definition, "temporary" relief, as it relates to the November Election, it is essentially permanent relief. The court brushed aside the Defendants' claim that USPS delivery capacity had not been altered as patently false.

The ruling represents a major win for democracy. There remains, however, a question as to whether, in the absence of additional funding, the USPS can fully comply given that, as we previously reported, many of the machines, costing millions of dollars, were "destroyed or thrown into dumpsters". Thus, it still may be safer to utilize state-supplied drop-boxes or to personally drop off mail-in ballots at designated locations, including at the polls, where allowed.

UPDATE 9/22/20: As we initially reported, in covering the original complaint in State of Washington v. Trump, two other legal challenges to the changes effectuated by DeJoy at USPS had been filed: (1) Commonwealth of Pennsylvania v.DeJoy, a federal lawsuit filed by the Attorneys Generals from five states --- CA, DE, MA, Me, NC and the District of Columbia, and (2), Jones v. United States Postal Service, a federal lawsuit filed by Democratic Congressional Candidate Mondaire Jones and several New York voters.

Subsequent to our initial coverage, one more case, challenging the changes at USPS, was filed in a U.S. District Court in Washington D.C., Richardson v. Trump. In a recently filed preliminary injunction in the Jones.

Unlike Judge Bastian's decision, which primarily addressed State constitutional rights, as well as violations of relevant statutes, Judge Marrero focused entirely on the rights of voters themselves.

After citing numerous instances in which USPS records were at odds with DeJoy's sworn Congressional testimony, Judge Marrero ruled that the plaintiffs, in Jones, established a likelihood of success on their claims that the USPS changes violated both their First Amendment voter right of association and Fifth Amendment right to Equal Protection.

Judge Marrero's injunction, which will not be effective until Sept. 25, mandates that USPS, "to the extent that excess capacity permits", must "treat all Election Mail as First-Class Mail or Priority Mail Express." He also ordered the approval of all requested overtime between Oct. 26 and Nov. 6.

* * *
Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

Share article...