Vote Forward v. Dejoy

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VOTE FORWARD; AMY BOLAN; AARON
CARREL; DANTE FLORES-DEMARCHI;
PAUL HUNTER; SEBASTIAN IMMONEN;
KATHRYN MONTGOMERY; SEAN
MORRISON; INDERBIR SINGH DATTA;
MARTHA THOMPSON; LINDA
ROBERSON; GARY YOUNG; VOCES
UNIDAS DE LAS MONTAÑAS;
COLORADO ORGANIZATION FOR
LATINA OPPORTUNITY AND
REPRODUCTIVE RIGHTS; PADRES &
JÓVENES UNIDOS;
Plaintiffs,
v. Civ. Action No. 20-2405 (EGS)
LOUIS DEJOY, in his official
capacity as the Postmaster
General; and the UNITED STATES
POSTAL SERVICE,
Defendants.
MEMORANDUM OPINION
Plaintiffs—eleven voter-eligible individuals and four
organizations dedicated to seeking greater civic engagement in
the November 2020 election—bring this lawsuit against Defendants
Louis DeJoy (“Mr. DeJoy”), in his official capacity as
Postmaster General of the United States, and the United States
Postal Service (“USPS), alleging that a new USPS policy
implemented in July 2020 violates Plaintiffs’ constitutional
right to vote and constitutes ultra vires agency action. See
Pls.’ Am. Compl., ECF No. 15. 1 Plaintiffs seek a preliminary
injunction with regard to their constitutional claim.
Upon consideration of the Plaintiffs’ motion, the response,
the reply thereto, the applicable law, and the entire record,
the Court GRANTS Plaintiffs’ motion.
I. Background
A. Factual Background
1. The COVID-19 Pandemic
Plaintiffs assert that the COVID-19 pandemic has increased
reliance on mail delivered by the USPS. Pls.’ Mem. Law Supp.
Mot. Prelim. Inj. (“Pls.’ Mot.”), ECF No. 16-1 at 7. According
to Plaintiffs, several states have adjusted their election
procedures to allow for all eligible voters to vote by mail-in
ballot in the November 2020 election: 43 states and the
District of Columbia will permit all eligible voters to vote by
mail, and 28 states will require that the ballots be received,
rather than postmarked, by Election Day. Id. at 7-8 (citing news
reports). In total, the adjustments made by many states in
response to the COVID-19 pandemic will result in approximately
83% of all eligible voters having the opportunity to vote in
this method. Id. (citing news reports). It is anticipated that
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
at least 80 million mail-in ballots will be submitted for the
November election. See Hersh Decl., ECF No. 16-15 ¶ 14.
2. USPS Policy Changes
On July 10, 2020, USPS announced an “operational pivot” to
make “immediate, lasting, and impactful changes in our
operations and culture.” Ex. 4 to Pls.’ Mot., ECF No. 16-6 at 2.
As most relevant here, the document stated that (1) “[a]ll trips
will depart on time (Network, Plant and Delivery); late trips
are no longer authorized or accepted”; (2) “[e]xtra trips are no
longer authorized or accepted”; (3) “[c]arriers must begin on
time, leave for the street on time, and return on time”; and (4)
“no additional transportation will be authorized to dispatch
mail to the Plant after the intended dispatch” (collectively,
the “Late/Extra Trips Policy”). Id. 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 in the
workroom floor or docks . . . , which is not typical.” Id.
However, the document noted expectations that “operations will
begin to run more efficiently and that delayed mail volumes will
soon shrink significantly.” Id. at 3. These changes were also
confirmed in a USPS PowerPoint presentation, which explained
that if “the [USPS processing] plants run late they will keep
the mail for the next day. If [delivery units] get mail late and
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your carriers are gone and you cannot get the mail out without
[overtime] it will remain for the next day.” Ex. 5, ECF No. 16-7
at 5-6. Since the USPS policy took effect, USPS has eliminated
an average of 32,900 extra or late trips per week, Grimmer
Decl., ECF No. 16-11 ¶¶ 10-11, or a 75% drop in the number of
both types of trips, Pls.’ Reply, ECF No. 24 at 11.
Due to the policy changes expressly prohibiting late trips
and extra trips, the ability to deliver mail in an efficient
manner can be inhibited at three different points in the
delivery chain. First, mail handlers deliver mail from the local
post office to a USPS processing plant; if the mail arrives at
the post office after the handler has already left for the
processing plant, the mail may wait at the post office until the
next day. Pls.’ Mot., ECF No. 16-1 at 12-13. Second, once the
mail arrives at the processing plant, if it is not processed
prior to the mail handler’s scheduled departure time from the
plant to the relevant delivery unit, it again may remain at the
plant until the next day. Id. at 13. Third, once the letter has
made it to the delivery unit, it still must arrive prior to the
mail carrier’s trip to the final intended destination; if it
arrives after the mail carrier has left for her delivery route,
the letter may be delayed one day. Id. at 13. Thus, the USPS
policy changes may potentially delay certain mail items for up
to three days more than typical prior to the policy changes.
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The USPS policy changes stand in contrast with prior
practices that allowed postal workers to conduct late trips or
extra trips “to delay or supplement their scheduled deliveries
to ensure that they have collected and transported all
outstanding mail at any given facility.” Pls.’ Mot., ECF No. 16-
1 at 10 (citing Ex. 3 to Pls.’ Mot., ECF No. 16-5).
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. 21-3 ¶ 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. 1 to Notice Suppl.
Material, ECF No. 30-1 at 4.
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 following implementation of
the USPS policy changes. On-time services scores are the
“measure of the frequency with which USPS is able to deliver
mail in the timeframe defined by its service standards.” Pls.’
Reply, ECF No. 24 at 11; see also Suppl. Grimmer Decl., ECF No.
5
24-2 ¶¶ 5, 7. During the pre-policy period, from January 4, 2020
to July 4, 2020, the average USPS service score was 91.6%
nationally; however, the August 29, 2020 service score was 3.56
percentage points lower than the pre-policy average. Suppl.
Grimmer Decl., ECF No. 24-2 ¶ 5; see also id. (noting that the
August 29 service score was 2.96 percentage points lower than
the three-week period prior to the USPS policy implementation).
The overall decline in service scores is consistent across all
but one region in the United States, though the service scores
vary. For example, while the USPS “Capital Metro” area has a
service score that has declined 6.3 percentage points since
implementation of the USPS policy, the service score in the
“Southern” area has declined by only approximately two
percentage points. See id. ¶ 7. Moreover, services scores in 91%
of USPS districts around the United States are lower as compared
to the pre-policy average from January 4, 2020 to July 4, 2020.
Id. ¶¶ 8-9.
Defendant Mr. DeJoy has recognized that USPS made only “one
change” in early July 2020, and that change regarded his request
that “the team . . . run the transportation on time and mitigate
extra trips.” Ex. 6 to Pls.’ Mot., ECF No. 16-8 at 4. In the
August 13, 2020 letter to all USPS employees, Mr. DeJoy also
acknowledged delivery delays were “unintended consequences” of
the USPS policy changes. See Pls.’ Mot., ECF No. 16-1 at 16
6
(citing USPS, Path Forward: PMG Addresses Restructuring (Aug.
13, 2020), https://rb.gy/y6tbre). Furthermore, in testimony
before the House Committee on Oversight and Reform on August 24,
2020, Mr. DeJoy again recognized that the USPS policy changes
were causing delivery delays and that it “expose[d] a need to
realign some of [USPS’s] processing and scheduling that caused
mail to miss the scheduled transportation.” See Ex. 8 to Pls.’
Mot., ECF No. 16-10 at 10. Mr. DeJoy stated that because
“production schedules within the plants were not aligned with
the transportation schedules going out,” “about 10% of the mail
was not aligned.” See Ex. 6 to Pls.’ Mot., ECF No. 16-8 at 7.
B. Procedural History
Plaintiffs filed this lawsuit on August 28, 2020. See
Compl., ECF No. 1. On September 8, 2020, Plaintiffs filed an
amended complaint against Defendants, see Am. Compl., ECF No.
15, and subsequently filed a motion for preliminary injunction
requesting that the Court enjoin Defendants and their agents
from implementing the USPS policy changes, see Pls.’ Mot.
Prelim. Inj., ECF No. 16. Defendants filed their opposition on
September 15, 2020. See Defs.’ Resp. Pls.’ Mot. Prelim. Inj.
(“Defs.’ Opp’n”), ECF No. 21. Plaintiffs filed their reply brief
on September 20, 2020. See Pls.’ Reply Supp. Mot. Prelim. Inj.
(“Pls.’ Reply”), ECF No. 24. The motion is ripe for the Court’s
consideration.
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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
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).
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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
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 Constitutional Claim
1. Plaintiffs Likely Have Standing To Bring This
Challenge
As a threshold matter, Defendants argue that Plaintiffs
cannot establish that they are likely to succeed on the merits
because Plaintiffs lack standing in this case. Defs.’ Mot., ECF
No. 21 at 31.
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
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‘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)). “These requirements apply whether an
organization asserts standing to sue, either on its own behalf,
or on behalf of its members.” Nat’l Treasury Emps. Union v.
United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (citing
Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982)).
“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. Office v. FERC, 949 F.3d 8, 13 (D.C. Cir.
2020) (internal quotation marks, citations, and alterations in
original omitted). However, only one plaintiff needs standing in
order for a claim to go forward. See Carpenters Indus. Council
v. Zinke, 854 F.3d 1, 9 (D.C. Cir. 2017) (citing Mountain States
Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996)).
Defendants argue that neither the “Organization
Plaintiffs”—Vote Forward, Voces Unidas de las Montañas, COLOR,
and Padres & Jóvenes Unidos—nor the individual Plaintiffs can
establish that they have suffered an injury-in-fact. Defs.’
Mot., ECF No. 21 at 31. Defendants do not allege that Plaintiffs
10
have not established causation or redressability for the
purposes of standing.
First, regarding organizational standing, the D.C. Circuit
recently articulated the test for determining whether an
organization satisfies the “irreparable harm” prong:
An organization is harmed if the “actions
taken by [the defendant] have ‘perceptibly
impaired’ the [organization’s] programs.”
Fair Emp’t Council of Greater Wash., Inc. v.
BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir.
1994) (quoting Havens Realty Corp. v. Coleman,
455 U.S. 363, 379, 102 S. Ct. 1114, 71 L. Ed. 2d
214 (1982)); see also Nat’l Treasury Emps.
Union v. United States, 101 F.3d 1423, 1430
(D.C. Cir. 1996) (explaining that the initial
question is whether “a defendant’s conduct has
made the organization’s activities more
difficult”). If so, the organization must then
also show that the defendant’s actions
“directly conflict with the organization’s
mission.” Nat’l Treasury Emps. Union, 101 F.3d
at 1430. The second step is required to ensure
that organizations cannot engage in activities
simply to create an injury. Id.
League of Women Voters v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016).
Citing Plaintiff Vote Forward as an example, Plaintiffs
argue that Defendants’ policy changes have impaired Vote
Forward’s programs by causing it to “redirect [its] limited
resources, which includes both [its] labor and [its] funds, to
address challenges caused by Defendants’ Policy that were
unforeseen.” Pls.’ Mot., ECF No. 16-1 at 41. According to
Plaintiffs, as part of Vote Forward’s mission to “empower
grassroots volunteers to help register voters from traditionally
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underrepresented communities and encourage them to vote,” see
Forman Decl., ECF No. 16-24 ¶ 2, Vote Forward “has built an
online platform through which volunteers throughout the country
are connected with and encouraged to mail hand-written letters
to fellow citizens imploring them to vote,” Pls.’ Reply, ECF No.
24 at 26 (citing Forman Decl., ECF No. 16-24 ¶¶ 4-5). While Vote
Forward had previously planned to mail the get-out-the-vote
letters on October 27, in line with its “data” suggesting that
letters mailed closer to Election Day are more successful, Vote
Forward has had to move up its mailing date as a direct result
of the USPS policy changes, threatening to “diminish the success
of the campaign.” Pls.’ Reply, ECF No. 24 at 26 (citing Forman
Decl., ECF No. 16-24 ¶¶ 6, 8). As a result, Plaintiffs allege
that Vote Forward has had to divert resources “to respond to an
influx of inquiries [from] volunteers regarding USPS’s mailing
delays and to assess whether sending out [get-out-the-vote]
letters earlier than planned would negatively impact the
effectiveness of Vote Forward’s letter-writing campaign.” Pls.’
Mot., ECF No. 16-1 at 42. In addition, Vote Forward has had to
“expend[] multiple weeks of effort” to launch two new programs
as a result of the USPS policy changes: one that “aims to
quantify the mailing delays associated with Defendant’s
policies,” and another that “seeks to ascertain the differential
impact on voter turnout if [get-out-the-vote] letters are sent
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one week versus three weeks prior to an election,” “at a total
cost of approximately $50,000.” Id.; Forman Decl., ECF No. 16-24
¶¶ 9-11. Thus, Defendants’ actions have “made the organization’s
activities more difficult,” Newby, 838 F.3d at 8 (quoting Nat’l
Treasury Emps. Union, 101 F.3d at 1430), as a result of the
“direct conflict between the defendant’s conduct and the
organization’s mission,” Abigail All. v. Eschenbach, 469 F.3d
129, 133 (D.C. Cir. 2006) (citation omitted).
Contrary to Defendants’ assertion, Plaintiffs’ decision to
“use[] its resources to counteract” such injury is not self-
inflicted solely because it is voluntary. Food & Water Watch,
Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015) (quoting
PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015)); see also
Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1139 (D.C. Cir.
2011) (explaining that an injury is not a “self-inflicted . . .
budgetary choice[]” merely by having been made willfully or
voluntarily (quoting Fair Emp’t Council of Greater Wash., Inc.,
28 F.3d at 1276). Rather, as long as the organization expends
resources “to counteract the effects of the defendant[’s]”
challenged conduct, that diversion can suffice for Article III
purposes. Id. at 1140. As stated above, Plaintiff Vote Forward
has demonstrated that its expenditures—“such as the time and
monetary expenses associated with Vote Forward’s new programs to
test the time it will take to deliver letters and to gauge the
13
effectiveness of a get-out-the-vote campaign weeks, rather than
mere days, before Election Day”—were undertaken to directly
counteract the harms caused by Defendants’ actions. Pls.’ Reply,
ECF No. 24 at 28. In addition, although Defendants argue that
Plaintiffs such as Vote Forward could not suffer an injury
because they “educate and assist potential voters as part of
their standard activities,” Defs.’ Opp’n, ECF No. 21 at 32, the
fact that Defendants’ actions undermined Vote Forward’s ability
to conduct its usual activities is sufficient to constitute a
“drain on the organization’s resources,” not “simply a setback
to the organization’s abstract social interests.” Nat’l Ass’n of
Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (quoting
Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433
(D.C. Cir. 1995)); see also Havens, 455 U.S. at 379 (finding
sufficient for organizational standing purposes that plaintiff
alleged it had “been frustrated by defendants’ racial steering
practices in its efforts to assist equal access to housing
through counseling and other referral services” and “had to
devote significant resources to identify and counteract the
defendant’s [sic] racially discriminatory steering practices”
(alteration in original)).
The Court also concludes that Plaintiffs have shown
traceability and redressability. Regarding traceability,
Plaintiffs have demonstrated that the implementation of the USPS
14
policy changes in July coincided with a significant decline in
USPS on-time service scores, and Defendants have acknowledged
that the only change USPS made in early July was in regard to
the policy regarding transportation and extra trips. Pls.’
Reply, ECF No. 24 at 12 (citing Ex. 6, ECF No. 16-8).
Defendants, however, argue that Plaintiffs cannot establish that
their injuries are solely the result of the USPS policy changes
because of the “simultaneous impact” of the COVID-19 pandemic.
Defs.’ Mot., ECF No. 21 at 43-44. Defendants suggest instead
that staffing shortages due to the pandemic caused the decline
in USPS on-time service scores. Id. The Court is not persuaded.
As Plaintiffs point out, USPS data “show no relationship between
declines in on-time service scores and the time periods in which
USPS allegedly experienced staffing shortages.” Pls.’ Reply, ECF
No. 24 at 13. In fact, in comparison with prior months, the
average service scores actually increased in March at the moment
when Defendants allege staffing shortages were worsening. Id.
(citing Grimmer Decl., ECF No. 24-2 ¶ 13; Prokity Decl., ECF No.
21-2 ¶ 5). Furthermore, “declines in service scores continued
after the claimed staffing problems had abated.” Id. (citing
Prokity Decl., ECF No. 21-2 ¶ 10). Based on the data figures,
the Court finds that Plaintiffs’ claimed injuries are likely the
result of the USPS policy changes and may be remedied by
declaratory or injunctive relief.
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Accordingly, Plaintiff Vote Forward has established a
substantial likelihood of standing. Because the Court is
satisfied that Vote Forward has standing, the Court need not
address whether the other Plaintiffs also have standing in order
to proceed.
2. The Applicable Legal Standard
Prior to considering the merits, the parties disagree as to
which legal standard should govern Plaintiffs’ claim that the
USPS policy changes impose an unconstitutional burden on the
right to vote under the First and Fifth Amendments. Plaintiffs
argue that the Court should apply the Anderson-Burdick
framework, derived from Anderson v. Celebrezze, 460 U.S. 780
(1983) and Burdick v. Takushi, 504 U.S. 428 (1992), in this
matter. Pls.’ Mot., ECF No. 16-1 at 26. Under Anderson, Burdick,
and their progeny, the United States Supreme Court has
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 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
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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).
Defendants, for their part, argue that the Anderson-Burdick
framework does not apply here because that standard only
concerns the constitutionality of state election laws—not “a
non-election law that may have an attenuated, indirect effect on
the electoral process” or the “everyday actions” of federal
agencies. Defs.’ Opp’n, ECF No. 21 at 36-37. In Defendants’
view, “[a]pplying the Anderson-Burdick balancing test to any
policy that has some impact on the electoral process would
17
produce odd results,” including “that any deficiency in USPS
service could give rise to a constitutional voting rights
claim.” Id. at 37. Defendants argue that because the Anderson-
Burdick framework does not apply, Plaintiffs’ claim must fail
because Plaintiffs have not alleged stand-alone claims under
either the First or Fifth Amendments, which encompass distinct
requirements as compared to a claim alleged under Anderson-
Burdick. Id. at 38.
Defendants further argue that even if the Court considers
the USPS policy to constitute an “election law,” the Anderson-
Burdick framework still would not apply. Id. Rather, the Court
would 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
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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
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 . . . who
were physically restricted from the polls.” Defs.’ Opp’n, ECF
No. 21 at 39.
The Court finds that McDonald is inapposite. 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. Rather, Plaintiffs allege that Defendants’
policy changes undermine the integrity of the November 2020
election by causing delays in the delivery of mail-in ballots,
resulting in the risk that hundreds of thousands of voters will
be disenfranchised. Second, “[t]he Supreme Court has expressly
restricted [McDonald’s] applicability to cases in which there is
no evidence showing that the challenged restriction will
prohibit the plaintiff from voting.” Jones v. U.S. Postal Serv.,
No. 20-cv-6516 (VM), 2020 WL 5627002, at *15 (S.D.N.Y. Sept. 21,
2020). For example, in Hill v. Stone, the Supreme Court
19
explained that, in McDonald, “there was nothing in the record to
indicate that the challenged Illinois statute had any impact” on
the right to vote, but that the case had acknowledged that
“[a]ny classification actually restraining the fundamental right
to vote . . . would be subject to close scrutiny.” Hill v.
Stone, 421 U.S. 289, 300 n.9 (1974) (citing McDonald, 394 U.S.
at 807-09). In other words, “[e]ssentially the Court’s
disposition of the claims in McDonald rested on failure of
proof.” O’Brien v. Skinner, 414 U.S. 524, 529 (1974). Because
Plaintiffs have provided evidence that the USPS policy will
inhibit many voters’ ballots from being counted in the November
2020 election, McDonald’s rational basis test is inappropriate.
Whether the Court should consider Plaintiffs’ claim under
the Anderson-Burdick framework is not so straightforwardly
dismissed, however. 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, 2020 WL 5627002, at *14 (“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
20
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 November 2020
election, 43 states and the District of Columbia will permit all
eligible voters to vote by mail-in ballot, and 28 of those
states will require that the ballots be received by Election
Day. Pls.’ Mot., ECF No. 16-1 at 7-8 (citing news reports).
Furthermore, a “conservative” estimate predicts that 80 million
ballots will be submitted by mail. See Hersh Decl., ECF No. 16-
15 ¶ 14. In other words, for tens of millions of voters this
year, the postal service “is literally the method by which the
election is conducted.” Pls.’ Reply, ECF No. 24 at 16. 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.’ Opp’n, ECF No. 21 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
21
Election.” Id. at 12-13. This relationship between the USPS and
the electoral process suggests a strong connection with the
protection of voters’ rights.
And although the Court acknowledges that the majority of
cases apply the Anderson-Burdick test within the confines of a
state election law, this aligns with the fact that “our country
has a highly decentralized system of election administration, in
which states and localities are primarily responsible for
regulating and managing elections.” Jones, 2020 WL 5627002, at
*14 (citations omitted). Defendants correctly note, for example,
that both Anderson and Burdick themselves concerned the
constitutionality of state-level election laws and indicated
that the balancing test applies when a court is considering a
challenge to such laws. However, the Court is not persuaded that
either case, or the cases that have followed, have so restricted
application of the balancing framework to only that specific
context. For example, 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
22
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”). Courts
have also applied the Anderson-Burdick balancing test in the
context of non-election laws. For example, in Monserrate v. New
York State 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
23
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 “constitutional equivalent” of
voting).
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.
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
24
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.
Accordingly, the Court finds that Plaintiffs have
established that the Anderson-Burdick framework likely applies
to Plaintiffs’ claim.
3. Plaintiffs Have Shown That They Are Likely To
Succeed On The Merits Of Their Constitutional
Claim
Plaintiffs argue that the USPS policy changes “impose[]
undue burdens on Plaintiffs’ and other voters’ rights to vote in
25
violation of the First and Fifth Amendments.” Pls.’ Mot., ECF
No. 16-1 at 10. 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.” Burdick, 504
U.S. 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
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)). “Obviously included within the
26
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) (emphasis added). 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 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.
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. For example, Plaintiffs
27
explain that if a voter residing in one of those 28 states mails
in her ballot on the Saturday before Election Day, a one-day
delay “significant[ly] increases the risk of the ballot being
rejected as untimely,” and a two-day delay “would make
disenfranchisement a certainty.” Pls.’ Mot., ECF No. 16-1 at 30.
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; see also Supp. Grimmer Decl., ECF No 24-2 ¶¶ 5, 7
(listing “on-time” service scores varying across USPS areas in
the United States). Indeed, USPS itself has acknowledged the
threat of voter disenfranchisement that may result from delivery
delays caused by Defendants’ policy, warning in a July 29, 2020
letter to 46 states and the District of Columbia that USPS
“cannot guarantee all ballots cast by mail for the November
election will arrive in time to be counted.” See Pls.’ Mot., ECF
No. 16-1 at 15. 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. 16-15 ¶¶
14, 21-23; see also Pls.’ Mot., ECF No. 16-1 at 7 (citing
28
Juliette Love, Matt Stevens, & Lazaro Gamio, Where Americans Can
Vote by Mail in the 2020 Election, N.Y. Times (last updated Aug.
14, 2020), https://rb.gy/fwss8l)).
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. See Pls.’ Mot., ECF No. 16-1 at 31. For these
individuals, mail-in voting is either the only choice or the
only safe choice they have. Defendants, however, suggest that
these individuals and others can avoid such injuries if they
only choose to vote earlier. Defendants argue that there is no
severe burden on Plaintiffs because any disenfranchisement would
be due to “‘their own failure to take [the] timely steps’
necessary.” Defs.’ Opp’n, ECF No. 21 at 40 (alteration in
original) (quoting Rosario v. Rockefeller, 410 U.S. 752, 758
(1973)). In Defendants’ view, USPS “cannot be required by the
Constitution to ensure that a voter’s ballot arrive in the
timeframe set by her state if that voter mails the ballot the
day before the state’s deadline.” Id. This argument fails. In
suggesting that voters should cast their ballots earlier than
required, Defendants ignore Plaintiffs’ “essential” interest in
29
making “informed choices among candidates for office.” McIntyre
v. Ohio Elections Comm’n, 514 U.S. 334, 346-47 (1995). As the
Supreme Court has recognized, “[i]n election campaigns,
particularly those which are national in scope, the candidates
and the issues simply do not remain static over time.” Anderson,
460 U.S. at 790. Many individuals, including Plaintiffs in this
case, rely on the efficient delivery of their mail-in ballots so
that they make take the time available to consider the issues
and candidates in an election. See, e.g., Datta Decl., ECF No.
16-23 ¶¶ 3-5. Accordingly, any argument that Plaintiffs inflict
injury on themselves by not voting earlier does not
significantly lessen their harms in this situation. In any
event, Plaintiffs’ arguments are in regard to voters who decide
to send in their ballots three days in advance of Election Day,
not one day.
Defendants also 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. 21 at 35. 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. However, Defendants miss the
point. Plaintiffs here are not alleging that Defendants are
denying them a right to vote by mail. Rather, Plaintiffs are
30
alleging that the Defendants’ policy changes undermine the
integrity of the November 2020 election by causing delays in the
delivery of mail-in ballots, resulting in thousands of votes not
being counted. As the Supreme Court has explained, “[h]aving
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.” Bush v. Gore, 531 U.S. 98,
104-05 (2000) (quoting Harper, 383 U.S. at 665). And that is
precisely the issue. For example, if one of the individual
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 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 v. Sims, 377 U.S. 506, 565 (1964)).
Defendants contend that the USPS policy changes do not
impose a “severe” burden on voters because “USPS has not
instituted a ban on late trips or extra trips,” only a call for
a “renewed focus on schedules.” Defs.’ Opp’n, ECF No. 21 at 40.
Defendants argue that there is “little indication” that policy
changes will cause delays in view of the “resources USPS is
committing to Election Mail, and USPS’s assurance that it has
31
the capacity to process the expected volume of Election Mail.”
Id. However, even if Defendants did not institute a full “ban”
on late or extra trips, Defendants have not rebutted the
statistics that Plaintiffs have put forward indicating that the
nearly 75% drop in the number of late and extra trips has
resulted in “a material cut in USPS’s capacity to timely deliver
mail.” See Cintron Decl., ECF No. 21-1 ¶¶ 23-25; Pls.’ Reply,
ECF No. 24 at 11; see also Grimmer Decl., ECF No. 16-11 ¶ 9
(stating that USPS cuts amounted to an average of 32,900 fewer
trips per week). Although Defendants suggest that the drop in
USPS’s “on-time” deliveries were partly caused by staffing
shortages from COVID-19, the Court is persuaded by Plaintiffs’
analysis of USPS data showing “no relationship between declines
in on-time service scores and the time periods in which USPS
allegedly experienced staffing shortages.” Pls.’ Reply, ECF No.
24 at 13. Furthermore, as USPS has “itself forecast[ed] the
injuries” previously, it is “disingenuous” for USPS to claim
that there is “little indication” of delays in delivery of mail-
in ballots. See Jones, 2020 WL 5627002, at *12 (citation
omitted). The Court finds that such burdens on voters’ right to
have their ballots counted suggests that a high level of
scrutiny is required.
Against such injuries, Defendants assert that the policy
changes are “intended to increase efficiency” and “minimize
32
unnecessary costs.” Defs.’ Opp’n, ECF No. 21 at 41. Defendants
contend that these “general regulatory interests” survive the
Anderson-Burdick inquiry under a rational basis review. Id.
(quoting Libertarian Party, 682 F.3d at 77). In Defendant’s
view, the fact that the USPS policy changes were actually
inefficient in the short term or that cost savings may be
minimal does not mean that they were any less legitimate. Id.
Defendants argue that “the proffered justifications for the USPS
policy at issue are sufficient to justify the indirect, minimal
burden it may impose on voters.” Id. Plaintiffs 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 that the mail delivery slow-downs
were expected because the policy’s purpose was to “undermine the
ability of the Postal Service to fulfill its statutory duty to
provide ‘prompt, reliable, and efficient services to patrons in
all areas.’” Pls.’ Mot., ECF No. 16-1 at 32-33 (quoting 39
U.S.C. § 101(a)). Plaintiffs also contend that Defendants’ cost
savings rationale is insufficient because (1) case precedent
establishes that the government may not burden fundamental
rights in its quest to save costs; (2) the cost savings are
minimal over the period leading up to Election Day; and (3)
Defendant Mr. DeJoy has confirmed that the USPS’s financial
position is sound. Id. at 33-35.
33
 Defendants are correct that the government generally need
not justify itself with “elaborate, empirical verification” of
its interests in a rational basis review. Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 364 (1997). 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 “compliance with pre-set schedules is
intended to increase efficiency” and minimize “administrative
costs.” Defs.’ Opp’n, ECF No. 21 at 41 (quoting Libertarian
Party, 682 F.3d at 77). Defendants’ reasons for administrative
cost savings are insufficient: as the Supreme Court has
34
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.” Ex. 4, ECF No. 16-6 at 2. And despite Defendants’
assertions to the contrary, as of the end of August, USPS
service scores remain lower that the pre-policy average. See
Suppl. Grimmer Decl., ECF No. 24-3 ¶ 5.
Accordingly, the Court finds that Plaintiffs are likely to
succeed on their constitutional claim.
B. Plaintiffs Face Irreparable Harm
“The failure to demonstrate irreparable harm is ‘grounds
for refusing to issue a preliminary injunction, even if the
other three factors . . . merit such relief.’” Nat’l Mining
Ass’n v. Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (RBW)
(quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d
290, 297 (D.C. Cir. 2006)). “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
35
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). Furthermore, similar to the test for
organizational standing, an organization faced irreparable harm
where (1) the “actions taken by [the defendant] have
‘perceptibly impaired’ the [organization’s] programs,” League of
Women Voters, 838 F.3d at 8 (alteration in original) (quoting
Fair Emp’t Council of Greater Wash., 28 F.3d at 1276), and (2)
“the defendant’s actions ‘directly conflict with the
organization’s mission,” id. (quoting Nat’l Treasury Emps.
Union, 101 F.3d at 1430).
The Court finds that both the individual Plaintiffs and the
Organization Plaintiffs face irreparable harm absent a
preliminary injunction.
1. The Individual Plaintiffs Face Irreparable Harm
The individual Plaintiffs argue that the USPS policies puts
their vote at risk of not being counted if they choose to send
in their ballot on a day that is close to Election Day. Prior to
the implementation of the USPS policy, the individual Plaintiffs
would have been able to reasonably expect that a ballot placed
36
in the mail on October 31, the Saturday prior to Election Day,
would have arrived at its intended destination by November 3,
based on the 1 to 3 day First Class Mail delivery standard.
Pls.’ Mot., ECF No. 16-1 at 37. Now, however, even with just a
one-day delivery delay caused by the USPS policy changes, there
is a significant risk that a voter’s ballot will not be counted.
Id.
In response, Defendants argue that the individual
Plaintiffs’ preference to wait to send in their ballots until
closer to Election Day because they want to avoid regretting
their decision or because they want to “wait until they have all
the information they need” is insufficient and too speculative
to establish an irreparable harm. Defs.’ Opp’n, ECF No. 21 at 42
(alterations omitted). In other words, “‘if their plight can be
characterized as disenfranchisement at all, it was not caused
by’ USPS but rather ‘their own failure to take [the] timely
steps’ necessary.” Id. (alteration in original) (quoting
Rosario, 410 U.S. at 758). Furthermore, Defendants assert that
“in light of service improvements and ongoing efforts to timely
delivery [sic] Election Mail,” Plaintiffs cannot show that their
ballots would not be received in time. Id. at 42-43.
The Court finds that the individual Plaintiffs have
sufficiently shown they will likely suffer irreparable harm
absent a preliminary injunction. As described above, Plaintiffs
37
have provided ample 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 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). Defendants’ suggestion that Plaintiffs need
only vote earlier than planned also does not remedy the harms
Plaintiffs would face in being forced to make a decision on how
to vote before they have all of the information they require.
Cf. McIntyre, 514 U.S. at 346–47 (“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, as Plaintiffs have pointed out,
Defendants’ own data suggests that USPS’s service scores have
not bounced back since the implementation of the policy changes,
38
and Defendants have provided no other information suggesting
that that will change prior to Election Day. See Pls.’ Reply,
ECF No. 24 at 10-13; see also Grimmer Decl., ECF No. 16-11;
Suppl. Grimmer Decl., ECF No. 24-2.
The individual Plaintiffs have thus asserted irreparable
harm.
2. The Organization Plaintiffs Face Irreparable Harm
The Organization Plaintiffs argue that they have also
demonstrated that irreparable harm is clear and immediate
because the USPS policy has “caused Plaintiffs to redirect their
limited resources, which includes both their labor and their
funds, to address challenges caused by Defendants’ Policy that
were unforeseen.” Pls.’ Mot., ECF No. 16-1 at 41. In response,
Defendants argue that any claimed injury to the Organization
Plaintiffs’ resources are insufficient because they have not
established that mail delays were solely a result of the USPS
policy as opposed to COVID-19. Defs.’ Opp’n, ECF No. 21 at 43.
Defendants assert that COVID-19 caused significant staffing
shortages beginning in March 2020, and, although the shortages
began to recover in June, “the availability for July again began
to decrease, with availability falling to its lowest levels in
the week of July 11, 2020.” Id. (citing Prokity Decl., ECF No.
21-2 ¶¶ 4-5). Thus, given these “simultaneous” impacts,
Plaintiffs cannot claim that the USPS policy was the sole cause
39
of their injury. Id. at 43-44. Defendants also contend that any
future harms are not “certain and great.” Id. at 44 (quoting
Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Human
Servs., No. 20-cv-1630 (JEB), 2020 WL 5232076, at *38 (D.D.C.
Sept. 2, 2020)).
Here, the Organization Plaintiffs have shown a likelihood
of suffering irreparable harm. “As the D.C. Circuit has
confirmed, ‘[o]bstacles’ that ‘unquestionably make it more
difficult for [an organization] to accomplish [its] primary
mission . . . provide injury for purposes both of standing and
irreparable harm.’” Whitman-Walker Clinic, Inc., 2020 WL
5232076, at *38 (alterations in original) (quoting League of
Women Voters, 838 F.3d at 9). As described, the USPS policy
changes have likely impaired and will likely continue to impair
Plaintiff Vote Forward’s ability to provide its services,
undermining its mission. Plaintiff Voces Unidas has asserted
similar harms to its programs: to counteract the harms caused by
the USPS policy changes, Voces Unidas—an organization “dedicated
to increasing civic engagement of the Latino population in three
rural Colorado counties” through get-out-the-vote campaigns—
estimates it will need to spend between $50,000 to $80,000
beyond its original budget through hiring “additional canvassers
to intensify the campaign earlier than previously anticipated
and to pay for additional advertising and dissemination of
40
information to the communities it serves.” Pls.’ Mot., ECF No.
16-1 at 42-43 (citing Voces Unidas Decl, ECF No. 16-25); cf.
Food & Water Watch, Inc., 808 F.3d at 920 (explaining that an
organization suffers an injury where it “expend[s] resources to
educate its members and others” and those “operational costs
[go] beyond those normally expended”). Furthermore, the Court
has already determined that Plaintiffs’ harms were the result of
the implementation of the USPS policy changes, not staffing
shortages, and, as stated above, “that harm is irreparable”
because after the November election passes, “there can be no do
over and no redress.” League of Women Voters, 838 F.3d at 9
(quoting League of Women Voters of N.C., 769 F.3d at 247).
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,
41
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
public interest favor a preliminary injunction because it is in
the public interest to prevent constitutional violations and to
allow eligible citizens to vote. Pls.’ Mot., ECF No. 16-1 at 43-
44. 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) “the Individual
Plaintiffs have an opportunity to avoid any harm by mailing in
their ballots without delay”; (3) the July 10 “Stand-Up Talk”
“does not represent official USPS policy”; 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. 21 at 44-
45.
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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. League of Women Voters,
838 F.3d at 12 (“There is generally no public interest in the
perpetuation of unlawful agency action.”). Nor does the proposed
injunction contemplate that the Court would become involved in
overseeing the day-to-day operations of the USPS. And while it
may be true that the “Stand-Up Talk” itself may not be an
official policy, Defendants do not contest that they have
implemented changes regarding transportation and extra trips,
and the Court has the authority to adjust the requested relief
as appropriate. 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 . . . .”).
IV. 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
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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 28, 2020
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