States Implore Judge to Intervene Against Election Mail Meddling

A forklift operator loads absentee ballots for mailing at the Wake County Board of Elections on Sept. 3 as preparations for the upcoming election are ongoing in Raleigh, N.C. (AP Photo/Gerry Broome, File)

PHILADELPHIA (CN) — Lobbying for a second federal injunction against the U.S. Postal Service, Democratic-led states argued in court Thursday that the same uninformed changes Postmaster General Louis DeJoy attempted to sweep in this summer could happen again before the election.

“Our primary claim is that the Postal Service acted ultra vires in enacting these changes,” said Michael Fischer, Pennsylvania’s chief deputy internal general, using the Latin legal phrase for without legal authority.

Pennsylvania is the lead plaintiff in the suit filed last month, which also involves five other states and the District and Columbia. The suit in Philadelphia is unrelated to one in New York, where voters and several political candidates secured a nationwide injunction just this past Monday, prioritizing all ballot-related mail for the upcoming election and preapproving all USPS overtime as well.

Both suits skewer as series of operational changes that DeJoy made in July just weeks after he became the first postmaster general in two decades to lack experience in the agency.

U.S. District Judge Gerald McHugh presides over the case in Philadelphia. At Thursday’s hearing, the challengers referenced USPS emails, PowerPoints and other internal communications as showing that postal offices across the country were under strict instruction to ration their use of the very resources they would need to handle the influx of mail in an election year where absentee ballots would be unprecedented to Covid-19 stay-at-home orders.

Customer complaints collected from July 13 to July 30 — after DeJoy’s became effective — indicate there was an abrupt change in services across the nation, said Aimee Thomson, another Pennsylvania attorney general.

Justice Department trial attorney Kuntal Cholera framed the matter as a misunderstanding, telling McHugh that local USPS management are to blame for decontextualizing statements from Washington.

“They were getting a message that was not intended from headquarters that resulted in these effects on the ground, leaving mail behind or adhering to schedules to the point where it was jeopardizing delivery,” Cholera said.

While the challengers say that DeJoy’s changes to overtime and the like required consultation with the Postal Regulatory Commission, Cholera said the commission typically concerns itself only with client-facing decisions, not managerial decisions. Customer-facing doesn’t mean the action has an impact on the customer — it has to be something that directly speaks to what the customer gets, Cholera explained.

Cholera also noted that delivery data gathered by Robert Cintron, vice president of USPS network operations, indicates that the delays observed in American mail has to do with carriers not following set schedules. The thought behind DeJoy’s operational changes, he said, was more “if we can get people to adhere to schedules we can make this more of a well-oiled machine.”

Thomson meanwhile emphasized data that even the early days of the Covid-19 pandemic did not wreak the havoc on mail delivery that occurred with DeJoy in office. From March when the pandemic began to July, the percentage of on-time first-class mail delivery was around 89.5%. In July, the number dipped, she explained, and on August 8, it was at its lowest at 81.4%.

“Service has not improved to what it was prior to the implementation of these changes, and the fact that service has improved does not change the fact that service performance was impacted by these changes,” Thomson said.

As for the Postal Regulatory Commission, Thomson said its role as a regulatory agency is to provide an objective analysis that would catch issues like this delivery lapses caused by the prohibition of overtime, late trips and extra trips.

But Cholera insisting that service is back to normal.

“From now until Election Day, the U.S. Postal Service will be following the exact same policies it has been following for years now,” Cholera said.

“This is about a dip in service in July,” he maintained. 

The Trump administration is not the first to see fluctuations in the delivery rate of first-class mail, Cholera added, quoting a deposition where Cintron said the goal of policy changes at USPS had been to reduce extra trips.

“But the goal was more aspirational: if everyone followed the schedule and everything occurred on time, we wouldn’t need extra trips,” Cholera explained.

Insisting that the challengers were relying on anecdotes, Cholera said: “There’s no evidence that anyone from headquarters said, ‘No extra trips. No overtime.’”

McHugh appeared skeptical, however. The Obama appointee questioned whether pushing trucks to leave on time ultimately pushes carriers to leave mail behind.

“When you describe local managers as taking federal guidance out of context, I think that might overstate it,” he said.

But Cholera maintained that the message “wasn’t what was intended by headquarters.”

Thomson retorted that, while there wasn’t a cap on overtime, there certainly was a push to reduce work hours. She emphasized that DeJoy admitted to Congress that he initiated a policy change that had unintended consequences, and that what he did in July caused a dip in delivery performance.

“Defendants exceeded their authority,” she said.

Fischer backed the point up.

“The evidence we’ve gotten tells a pretty clear story: It came from the top,” Fischer said. He said the states are trying this case in federal court because going to the commission would have been a lengthy process, and they needed a quick ruling before the election.

The plaintiffs are also seeking an injunction on their election interference claim, he said, which argues that USPS interfered with states’ ability to administer their own elections. 

Fischer explained that when states expanded mail-in ballot privileges, they did so with the expectation that the USPS service would continue as normal.

“States assumed that USPS wasn’t going to change,” Fischer said. “Now that these changes have happened the state’s ability in this area is threatened.”

McHugh noted that the federal government sees it as an indirect effect.

“I think the court could easily draw a line as to whether there’s been a substantial impact on mail delivery and if there was it doesn’t really matter if it was direct or indirect,” Fischer said.

The 68-page suit was originally filed in August, shortly after the Postal Service sent letters to 46 states and D.C., warning it could not guarantee mail-in ballots would arrive in time to be counted this November. 

After state attorneys filed their suits, DeJoy announced last month that controversial cost-cutting changes to the U.S. Postal Service would be stalled until after the presidential election. 

“We will deploy processes and procedures that advance any election mail, in some cases ahead of first-class mail,” DeJoy pledged during a videoconference hearing held by the Senate Homeland Security and Governmental Affairs Committee. A staunch Trump supporter and North Carolina businessman, the newly appointed postmaster general also said he has no plans to restore mail-sorting machines recently removed from postal facilities. 

Before pivoting to Republican Party leadership roles in 2017, DeJoy ran New Breed Logistics for decades and its successor XPO’s supply chain unit for a short time.

McHugh did not indicate when he intends to rule.

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