National Urban League et al v. DeJoy et al
COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0416-8814916.), filed by National Urban League, League of Women Voters of the United States, Common Cause. (Attachments: #1 Civil Cover Sheet, #2 Summons)(Chernof, Kenneth)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NATIONAL URBAN LEAGUE, on behalf of
itself and its members; COMMON CAUSE,
on behalf of itself and its members; LEAGUE
OF WOMEN VOTERS OF THE UNITED
STATES, on behalf of itself and its members,
CIV. NO. 1:20-cv-2391
[CIVIL RIGHTS ACTION]
LOUIS DEJOY, in his official capacity as
Postmaster General; and the UNITED
STATES POSTAL SERVICE,
Defendants Louis DeJoy (the United States Postmaster General) and the United
States Postal Service have made sweeping changes to the Postal Service’s policies and procedures
with the purpose and intent to sabotage mail-in voting in the upcoming 2020 national elections.
In taking these actions, Defendants have violated the United States Constitution’s
guarantee of free expression and have unconstitutionally burdened the fundamental right to vote.
Their actions were taken without observance of procedure required by law, in excess of their
statutory authority, and in violation of the statutory duties of the Postal Service.
Defendants’ actions will interfere—and are designed to interfere—with the ability
of state and local officials to administer fair elections and of voters to exercise their fundamental
rights to vote and to use the Postal Service to cast their ballots.
Defendants’ actions are especially pernicious because the upcoming national
elections will take place in the midst of a once-in-a-century pandemic that is expected to cause a
surge in mail-in voting. While mail-in voting has long been used safely and without any material
evidence of fraud, Defendants’ actions effectively require members of the voting public to make a
choice: exercise your right to vote in a manner that may be dangerous to your health and that of
your community or forfeit your right to vote.
The actions themselves evidence Defendants’ illicit motivations.
recently installed Postmaster General, Defendant DeJoy, the Postal Service has broken sharply
with longstanding policies and has vastly and haphazardly altered operational policies and
practices—all in the midst of a global pandemic that is already placing tremendous strain on the
Postal Service, and all without observance of legally mandated procedures for changing national
Postal Service policy.
These actions include: decommissioning mail sorting machines and
removing post office collection boxes en masse; curtailing the ability of postal workers to timely
deliver mail by prohibiting overtime and disallowing extra delivery trips; and, in a sudden and
inexplicable break with longstanding Postal Service policy, deprioritizing the delivery of election
mail. By Defendants’ own admission, these changes will cause ballots to go uncounted. In a
closely contested election with a high percentage of voting by mail, the failure to count mail ballots
could influence election outcomes.
Statements by the President remove any doubt that these efforts have been
undertaken with the purpose of denying the right to vote to voters who use mail-in ballots—and,
specifically, voters who intend to vote for his political opponents. The President has stated, clearly
and unequivocally, that these actions were taken to undermine the ability of people to rely on the
Postal Service to vote because the President believes that undermining the Postal Service will help
him in upcoming elections. The President could not have made his views any clearer: “MAIL-IN
VOTING WILL LEAD TO . . . THE END OF OUR GREAT REPUBLICAN PARTY.”
No matter Defendants’ intentions, the effect of Defendants’ actions will be to deny
the right to vote for voters of every political preference and affiliation. Defendants’ actions risk
disenfranchising any voter who needs to use the Postal Service to vote.
Politically motivated tampering with the operation of the Postal Service is unlawful
and unconstitutional even in ordinary times. But here it threatens the most fundamental right in
our democracy—the right to vote, on which all other civil and political rights depend. Wesberry
v. United States, 376 U.S. 1, 17 (1964). This Court’s immediate intervention is needed to protect
the Postal Service’s role in the electoral process by ordering relief that will ensure that the Postal
Service handles and delivers election mail, including ballots, in a timely manner consistent with
its highest operational standards.
The recent steps Defendants have taken to slow or otherwise interfere with the
delivery of election mail should be enjoined and ordered reversed to ensure that the Postal Service
provides effective mail service in the upcoming election and to prevent the denial or abridgement
of the right to vote for tens of thousands or possibly hundreds of thousands of Americans.
Postmaster General DeJoy’s August 18, 2018, statement that he is “suspending”
certain “initiatives” “until after the election” does nothing to lessen the overwhelming need for
swift relief from this Court. The Postmaster General’s statement does not commit to ceasing the
implementation of several of the actions Plaintiffs complain of herein. Nor does it commit to
taking any remedial action to undo the effects of actions Defendants have already undertaken to
undermine the Postal Service’s ability to effectively facilitate voting by mail in the upcoming
election. The Postmaster General has not committed to replacing mail sorting machines and
collection boxes Defendants have already removed; to administering overtime as it was
administered before Postmaster General DeJoy began his tenure; to rescinding his directives to
Postal Service workers to leave mail behind, cease work immediately when their shifts end, and
wait to sort mail until later in the day; or to reversing the policy of not treating all election mail as
The Constitution requires the President and the Postmaster General to faithfully
execute the laws and to preserve, protect, and defend the Constitution and the rights guaranteed
therein. The constitutional and statutory rights of Americans to vote are among the most sacred
of those laws. Defendants should be taking every effort to facilitate mail-in voting. But, at a
minimum, they should not be weaponizing the Postal Service in order to infringe the sacred right
SUBJECT MATTER JURISDICTION & VENUE
The Court has subject matter jurisdiction over Plaintiffs’ claims under Article III of
the Constitution, 28 U.S.C. § 1331, and under 28 U.S.C. § 1346. An actual and justiciable
controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court
may grant declaratory relief, injunctive relief, and other relief pursuant to 28 U.S.C. §§ 2201-02
and the Court’s equitable powers. Plaintiffs have no adequate remedy at law.
Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)(1) because a
substantial part of the events and omissions giving rise to this action occurred in this district.
Plaintiff National Urban League (“Urban League”) is a civil rights organization
dedicated to the empowerment of African Americans and others in underserved communities to
achieve their highest true social parity, economic self-reliance, political power, and civil rights.
Founded in 1910 and headquartered in New York City, with 90 affiliates serving 300 communities
in 36 states and the District of Columbia, the Urban League works to improve the lives of more
than two million people annually across the nation through direct service programs, including
education, employment training and placement, housing, and health. The Urban League, working
with its more than 400,000 members, including more than 4,000 members in Maryland, seeks to
advance our civil rights by removing all barriers to equal participation in all aspects of American
society, whether political, economic, social, educational, or cultural.
To advance its core mission of political empowerment and equality, the Urban
League has initiated a national “Reclaim our Vote” campaign focused on increasing political
participation in African-American and other underserved communities in advance of the
November 3, 2020, election. This campaign includes voter registration activities, as well as voter
education around all aspects of voting, including voting by mail. This campaign includes a
national informational initiative using paid and earned media, including print, radio, and television
advertisements, social media, and media partnerships with Black Entertainment Television and
Working locally with its affiliates and community groups, including faith groups,
the Urban League is focused on providing information directly to voters about how to vote in 2020.
During the ongoing COVID-19 pandemic, which has disproportionately affected the Black and
Brown communities it serves, the Urban League has focused much of its voter education efforts
on how to vote by mail in order to avoid the health risks of voting in person.
As a result of recent disruptions and delays in mail delivery by the United States
Postal Service, the Urban League has needed to redirect significant organizational resources to
addressing concerns about voting by mail, including what voters should do if they never receive
their mail-in ballots or receive them too late to return them by the deadline. This diversion of
resources has harmed the ability of the Urban League to advance its core mission through other
activities, including outreach and voter registration among new voters, and from preparing for a
Get Out the Vote campaign set to begin on September 18, 2020, to coincide with National Black
The Urban League has limited organizational resources and must carefully allocate
these resources over a long timeline in order to ensure it can carry out its core mission. Defendants’
actions mean that the Urban League has curtailed and must continue to curtail other missioncritical activities in order to educate and assist voters and communities about adjusting and
responding to disruptions and delays in mail delivery and to ensure that these voters are still able
to safely cast their ballots in the November 3, 2020, election.
Plaintiff Common Cause is a nonprofit organization organized and existing under
the laws of the District of Columbia, with its principal place of business in the District of Columbia.
Common Cause is a nonpartisan democracy organization with over 1.2 million members and
supporters, 22 state offices, and a presence in all 50 states. It has members in all 50 states and in
every congressional district. Since its founding by John Gardner 50 years ago, Common Cause has
been dedicated to making government at all levels more representative, open, and responsive to
the interests of ordinary people.
As part of its core mission, Common Cause works on a nonpartisan basis to expand
and protect equal access to voting for all citizens on multiple fronts, including: (a) lobbying for
nonpartisan election reforms, including, but not limited to, allowing no-excuse absentee voting,
extending the deadlines for submitting mail-in ballots, ensuring the safety of in-person polling
places during the COVID-19 pandemic, increasing the number of voting locations, and ensuring a
fair, nonpartisan redistricting process; (b) working collaboratively with state and local election
officials to address and remedy—in advance of the November 2020 general election—election
administration problems experienced in the 2020 statewide primary elections; (c) partnering with
other community organizations to provide education and training to on-the-ground voting rights
activists throughout the country; (d) working with other community organizations to track
problems at voting sites on Election Day, field calls from voters who experience burdens in their
efforts to exercise their fundamental right to vote, and provide assistance to such voters by
lobbying local election officials and/or facilitating their access to counsel; and (e) advocating for
nonpartisan election reforms, such as an expansion of early voting, designed to promote racial
equity by removing barriers to the franchise disproportionately borne by communities of color.
Common Cause has a relatively small number of employees and a limited budget
and relies on its member volunteers for many of its activities. It has to make hard choices about
how to use its limited resources.
As a result of the actions taken by the Postal Service, which threaten to delay
delivery of mail-in ballots both to voters and to local election officials, Common Cause has had to
and will continue to expend additional resources training or retraining its volunteers about the
options available to voters who fear that their mail-in ballots might not arrive in time to be counted.
The time and resources spent on such training is diverted from other activities Common Cause
would undertake to advance its mission.
By increasing the risk that some voters will be unable to successfully cast their
ballots by mail, Defendants’ actions harm Common Cause’s mission of reducing barriers to voting
and impose additional burdens on Common Cause that take time and resources away from
lobbying and advocacy efforts on other issues, including, but not limited to, no-excuse absentee
voting, ensuring the safety of in-person polling places, and expanding access to early voting.
In advance of the November 3, 2020, general election, Common Cause anticipates
that it will have to devote time and resources to training voters, volunteers, and its members on the
effects of Defendants’ actions. Common Cause’s staff spends considerable time developing the
curriculum and presentation materials for these sessions. The time and resources spent on updating
such training to address the effects of Defendants’ actions will be diverted from other activities
Common Cause would otherwise undertake to advance its mission.
In short, the time and resources that Common Cause has expended and will
continue to expend addressing the effects of Defendants’ actions necessarily diverts time and
resources away from the organization’s other advocacy, education, voter assistance, and lobbying
Common Cause has approximately 1.2 million members and supporters
nationwide. Many of those members are individuals who regularly vote by mail, either because
they choose to do so or because they are not able to vote in person. Among those are many
members who are at particular risk for health reasons during the COVID-19 pandemic and
therefore especially need to avoid voting in person. Defendants’ actions are likely to deprive many
of those members of their fundamental right to vote, by delaying delivery of their mail-in ballots
both to them and then to local election officials.
Plaintiff League of Women Voters of the United States (the “LWVUS”) is a
nonpartisan, community-based organization headquartered in Washington, D.C., that encourages
informed and active participation in government and influences public policy through education
and advocacy. Founded in 1920 as an outgrowth of the struggle to win voting rights for women,
the LWVUS is active in over 760 communities and every congressional district in the United States
and has more than 500,000 members and supporters nationwide. The LWVUS’s mission is to
empower voters and defend democracy, and it works to promote an open governmental system
that is representative, accountable, and responsive. The LWVUS has been a leader in pushing for
expanded voter access across the country, meets with more than 1,100 election officials each cycle
to discuss election procedures and needs, and works with state and local election officials to
educate voters on how to effectively cast a ballot.
For the 2020 election, in furtherance of its mission, the LWVUS developed a robust
civic engagement campaign that involved registering particular underrepresented voters and
maintaining contact with those voters through targeted get-out-the-vote efforts designed to
encourage participation. Specifically, the LWVUS invested several hundred thousand dollars in a
get-out-the-vote engagement campaign to encourage the participation of low-income
communities, communities of color, non-college youth, unmarried women, and new citizens. The
LWVUS planned to engage eligible voters in these communities and register them. Once they
were registered, the LWVUS would use the voters’ address information to send 1.7 million timed
mailers that provided crucial information relating to the voting process and encouragement to vote
in 15 states across the country while also supporting the remaining states in organizing local getout-the-vote efforts. The focus is to help voters learn and navigate the ever-evolving election
process, specifically their early and mail-in voting opportunities. In three of these states the mailers
are bilingual, and all include key in-state dates related to early and mail-in voting to encourage
voters to act as soon as possible.
The LWVUS was depending on the use of mail to conduct this campaign, especially
considering the impact of COVID-19. The LWVUS planned to mail out 1.7 million postcards to
voters whom the organization had previously registered and whom it had engaged via a variety of
outreach efforts to boost turnout in these communities for the general election.
The delays in mail delivery by the United States Postal Service have disrupted these
plans in several ways. First, concerned that its mailers will not be timely delivered, the LWVUS
is now planning to adjust its campaign to ensure as many mailers as possible reach the designated
target voters. It will likely have to have to expend more resources to ensure timely delivery of
these mailers. This will require diversion of limited resources from other programs and priorities
that the LWVUS is engaged in for the 2020 election. The LWVUS will also likely have to rely on
social media for its outreach efforts rather than mailers. However, it is more difficult for the
LWVUS to directly connect with voters it had previously registered through social media.
Second, the Postal Service delays have already caused and will continue to cause
the LWVUS to divert resources from priorities like the voter registration and targeted outreach
campaign in order to educate voters about how to effectively cast mail ballots and utilize
alternatives to mail voting. The LWVUS is already expending additional resources in terms of
staff and volunteer time educating voters about the deadlines for applying for and submitting mail
ballots, providing recommendations to voters on when to engage those processes, and explaining
to voters what they can do if and when there are delays in the mailing or receipt of their ballots.
With the expected influx of mail voting during the November election, the LWVUS will have to
devote even more resources to this task in order to best further its empowerment-focused mission.
The LWVUS is a non-profit with limited resources, and expending additional
resources to address emergencies, like the delays caused by Defendants’ actions, diverts resources
from other priority areas, such as the LWVUS’s registration and get-out-the-vote program.
Defendant Louis DeJoy, who is being sued in his official capacity only, is the
Postmaster General of the United States. In that role, DeJoy is the chief executive officer of
the United States Postal Service. He is responsible for the day-to-day operation of the Postal
Service. He exercises nearly all of the powers vested in the Postal Service Board of Governors by
delegation pursuant to 39 U.S.C. § 402 and 39 C.F.R. § 3.5. He thus has the power to direct and
establish policies, basic objectives, and long-range goals for the Postal Service as long as they do
not conflict with the limitations in the statute governing the Postal Service in Title 39 of the United
States Code. The President has the power to remove the Postmaster General and to supervise and
direct his actions.
Defendant United States Postal Service is an independent executive agency of the
U.S. federal government. The Postal Service’s headquarters are located at 475 L’Enfant Plaza SW,
Washington, D.C., 20260. The United States Postal Service is responsible for the timely delivery
of election mail sent through the Postal Service.
The Unprecedented Need to Rely on Voting By Mail During the COVID-19 Pandemic
The Postal Service plays a critical role in every election. State and local election
officials rely on the Postal Service to deliver time-sensitive election information to voters,
including information about candidates and ballot initiatives. They also rely on the Postal Service
to carry ballot applications and unmarked ballots to voters. Voters themselves rely just as heavily
on the Postal Service to receive time-sensitive election information and ballots and also to carry
their marked ballots to local election boards. This activity—the exercise of the franchise—is core
political speech, enabled by the United States Postal Service, one of America’s oldest and most
trusted institutions, which has for over two centuries played a vital role in binding the nation
Because the nation will conduct its constitutionally and congressionally mandated
election during a pandemic, the Postal Service’s role will be essential. Over the past five months,
COVID-19 has had an unprecedented impact on every facet of American life. This highly
transmissible and deadly virus has made it risky and difficult for Americans to safely undertake
any tasks that involve in-person contact (and for some impossible). Government offices, schools,
and businesses have closed. Public health officials, along with other federal, state, and local
officials, have urged people to limit person-to-person interactions and to avoid large gatherings, in
particular crowded indoor gatherings. Voting in person—which often takes place in crowded
indoor polling venues—now poses personal and public health risks, especially for older Americans
and those with underlying medical conditions.
The U.S. Centers for Disease Control has
accordingly urged election boards to permit alternatives to in-person voting that “minimize
exposure between poll workers and voters” and “reduce crowd size at polling locations.”
As a result, record numbers of American voters have already chosen to vote by mail
in the federal, state, and local primary elections that have occurred since March. Some state
primaries saw more than a tenfold increase since 2016 in the proportion of ballots submitted by
mail. For example:
a. Wisconsin’s April 2020 primary election saw a 440 percent increase in completed
absentee ballots relative to the April 2016 election, with nearly 1 million ballots
submitted by mail.
b. More than 1.1 million people submitted absentee ballots in the Georgia primaries,
five times more ballots than were cast in the 2018 general election.
c. In the Nebraska primary election in June, a record 80 percent of ballots were cast
by mail, more than three times the usual rate.
d. New York’s June 2020 primary election saw a tenfold increase in absentee ballot
requests relative to 2016, with over 1.7 million people requesting ballots by mail.
e. In Washington, D.C., 91,000 voters—15 times the normal number—requested
f. In Pennsylvania, 18 times more voters requested absentee ballots in the 2020
primary than did for the 2016 primary election, with 1.9 million requesting mail-in
The historic rates of voting by mail in this year’s primary elections were facilitated
in part by policy changes to accommodate voters’ fears of COVID-19 infection. Almost half of
U.S. states increased access to mail-in voting in their 2020 primary elections, with several of the
15 states that did not already permit voters to request absentee ballots without a specific “excuse”
adding risk of infection as sufficient justification.
The upcoming general election will see a similarly unprecedented level of voting
by mail. Twenty-seven states and the District of Columbia have expanded voter access to mail
ballots for the 2020 general election, with the broad goal of making it easier for people to vote in
light of the pandemic.
In nine states and the District of Columbia, every registered voter will be mailed a
ballot ahead of the election. California, Nevada, New Jersey, and the District of Columbia have
switched to a universal vote-by-mail system in light of the pandemic, whereby all registered voters
are proactively mailed ballots in advance of the general election. Together with the five other
states that had already implemented universal vote by mail prior to 2020, approximately 52 million
voters will automatically receive ballots in the mail this fall.
In an additional 34 states, voters may now cite the coronavirus as a reason to vote
absentee or may cast an absentee ballot without specifying a reason. Delaware, Massachusetts,
and Missouri will no longer require voters to identify a specific reason for requesting a ballot by
mail; and Alabama, Arkansas, Connecticut, New Hampshire, West Virginia, and Kentucky will
allow requests based on coronavirus concerns.
All told, at least 180 million individuals—77 percent of all registered voters in the
U.S.—will have the option to vote by mail in the November 2020 general election, the most in
U.S. history. Some experts predict that 80 million votes could be submitted by mail this fall, more
than twice the number cast by mail in 2016.
The challenges facing the Postal Service will become only more acute and serious
as the November general election nears and the Postal Service is tasked with the simultaneous,
nationwide processing of unprecedented numbers of mail-in ballots.
Defendants Have Taken Sudden and Unjustified Transformative Actions to Interfere with
the Postal Service’s Ability to Handle Mail Ballots
As the nation braces for an election that will involve unprecedented reliance on the
Postal Service, Defendants have intentionally undertaken steps that will cause the Postal Service
to deny or abridge the right to vote of thousands of Americans by slowing the delivery of mail
Shortly after taking office in June 2020, Postmaster General DeJoy began to
implement major structural and operational changes at the Postal Service. These Transformative
Actions, described in detail below in paragraphs 46-54, have had the cumulative effect of delaying
mail delivery in general and specifically impeding access to mail ballots.
For example, Postmaster General DeJoy moved to decommission one out of every
ten Postal Service mail sorting machines in the Postal Service’s inventory,1 including one out of
Erin Cox et al., Postal Service Warns 46 States Their Voters Could Be Disenfranchised by Delayed Mail-in
Ballots, WASH. POST (Aug. 14, 2020), https://www.washingtonpost.com/local/md-politics/usps-states-delayed-mailin-ballots/2020/08/14/64bf3c3c-dcc7-11ea-8051-d5f887d73381_story.html.
every seven Delivery Barcode Sorter (DBCS) machines.2 DBCS machines make up the bulk of
the Postal Service’s mail sorting operation and are used to sort envelope mail, such as letters,
postcards, and—critically—ballots.3 Delivery Barcode Sorting machines are capable of sorting
through 35,000 pieces of mail per hour.4 According to Postal Service planning documents issued
under Postmaster General DeJoy’s watch, the Postal Service planned to remove 671 mail sorting
machines, including 502 DBCS machines, by September 30. Although White House Chief of Staff
Mark Meadows disingenuously said in an interview on August 16 that the Postal Service would
not decommission any more sorting machines before the November election, by the time he made
that statement the Postal Service had already decommissioned more than 95 percent of the sorting
machines that were scheduled to be removed, according to Postal Service planning documents,5
including a significant number of sorting machines from processing and distribution centers in
Baltimore, Gaithersburg, and Capitol Heights.
Postmaster General DeJoy ordered the removal of Postal Service collection
mailboxes throughout the country. Mailboxes have reportedly been removed in at least four states,
including New York, Pennsylvania, Oregon, and Montana.6 In light of these reports, Montana
Senator Jon Tester sent a public letter to Postmaster General DeJoy requesting, among other things,
Paul P. Murphy & Curt Devine, Internal USPS Documents Raise Questions About Effectiveness of Sorting
Machines Removal Order, CNN (last updated Aug. 16, 2020), https://www.cnn.com/2020/08/16/politics/uspsdocuments-sorting-machine-removal-order/index.html.
Aaron Gordon, The Post Office Is Deactivating Mail Sorting Machines Ahead of the Election, Vice (Aug. 13,
Murphy & Devine, supra note 2.
Jacob Bogage, Postal Service Will Stop Removing Mailboxes, Wash. Post (Aug. 14, 2020),
information on the number of collection boxes removed from Montana.7 As of the filing of this
Complaint, Postmaster General DeJoy has not responded.
During a “Stand Up Talk,” Postmaster General DeJoy ordered the elimination of
overtime for Postal Service workers. Prior to the policy change, according to data from the
American Postal Workers Union, almost 20 percent of all work done by Postal Service mail
handlers, delivery drivers, and city carriers was done in overtime.8 Postal Service employees
utilize overtime “to handle surges in mail—including mail-in ballots.”9 However, the Postal
Service informed employees that “[o]vertime will be eliminated” because the Postal Service is
“paying too much in [overtime] and it is not cost effective.”10 With the elimination of overtime,
the Postal Service will have significantly reduced capacity to process surges in mail in the weeks
leading up to the November election.
During the same “Stand Up Talk,” Postmaster General DeJoy also ordered steps to
restrict deliveries of mail. DeJoy directed that “late trips” and “[e]xtra trips” to ensure timely
delivery of mail “are no longer authorized or accepted.”11 Further, the Postal Service directed
postal workers to leave mail behind at distribution centers for delivery the following day if
collecting it would delay letter carriers from their routes.12 Historically postal workers have been
Letter from Senator Jon Tester to Postmaster Gen. Louis DeJoy (Aug. 13, 2020), available at
Nicole Goodkind, Trump-Backed Postmaster General Plans to Slow Mail Delivery, Fortune (July 24, 2020),
Letter from House Speaker Nancy Pelosi and Senate Minority Leader Charles Schumer to Postmaster Gen. Louis
DeJoy, at 5 (Aug. 14, 2020), available at
U.S. Postal Serv., PMGs Expectations and Plan (undated), available at https://www.nonprofitmailers.org/leakedusps-powerpoint-indicates-pmg-dejoy-focus-on-getting-operating-costs-under-control/.
U.S. Postal Serv., Mandatory Stand-Up Talk: All Employees (July 10, 2020), available at
PMGs Expectations and Plan, supra note 10.
instructed not to leave letters behind and to make multiple trips if needed to ensure that mail is
delivered on time.13 The Postal Service itself explained that “[o]ne 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 . . . which is not typical.”14
On July 16, 2020, the Postal Service informed the National Association of Letter
Carriers about a new initiative called Expedited Street/Afternoon Sortation (ESAS), under which
“[c]ity carriers will not sort any mail during the morning operation” but will instead sort delivery
in the afternoon “[u]pon return from the street delivery.”15 The purpose of ESAS, which was
scheduled to begin in 384 selected sites on July 25, 2020,16 is to “reduce morning office time to
allow carriers to leave for the street earlier.”17 Postal workers and lawmakers have expressed
concerns that the practical effect of this change would further delay mail delivery times.18 As
Arthur Sackler, manager of the postal industry advocacy group Coalition for a 21st Century Postal
Service, explained, “if there’s no real time to sort, and no overtime, then there could be a
cumulative growing impact.”19
Jacob Bogage, Postal Service Memos Detail “Difficult” Changes, Including Slower Mail Delivery, Wash. Post
(July 14, 2020), https://www.washingtonpost.com/business/2020/07/14/postal-service-trump-dejoy-delay-mail/.
Mandatory Stand-Up Talk, supra note 11.
U.S. Postal Serv., Stand-Up Talk: Expedited to Street/Afternoon Sortation (ESAS)—City Carrier (July 2020),
available at http://www.nalc3825.com/SUT.ESAS.July.2020.pdf; see also USPS Announces New ESAS Delivery
Initiative Test, Nat’l Ass’n of Letter Carriers (July 21, 2020), https://www.nalc.org/news/nalc-updates/uspsannounces-new-esas-delivery-initiative-test.
USPS announcement, supra note 15.
USPS ESAS Stand-Up Talk, supra note 15.
See, e.g., Letter from Chairwoman Carolyn B. Maloney, House Comm. on Oversight and Reform, et al., to
Postmaster Gen. Louis DeJoy (Aug. 6, 2020), available at
Rachel M. Cohen, USPS Workers Concerned New Policies Will Pave the Way to Privatization, Intercept (July 29,
Postmaster General DeJoy has also ordered a sweeping overhaul of the Postal
Service leadership and organizational structure. According to the reorganizational memorandum
he released on August 7, 2020, nearly two dozen postal executives, many with decades of tenure
in the Postal Service, were reassigned or displaced. According to reporting by the Washington
Post, “[a]nalysts say the structure centralizes power around DeJoy . . . and de-emphasizes decades
of institutional postal knowledge.”20 At the same time, DeJoy announced a management hiring
freeze and voluntary early retirement program for employees not represented by a collective
Postmaster General DeJoy also ended the practice of treating all election mail as
priority mail. According to Postal Service delivery standards, First-Class Mail is typically
delivered in 2 to 5 days, while Marketing Mail is delivered within 3 to 10 days. Before Postmaster
General DeJoy assumed the position of Postmaster General, it had been the practice of the Postal
Service to prioritize the delivery of all election mail to meet First-Class delivery times no matter
what class of mail was used to send it. According to a 2019 report from the Postal Service Office
of Inspector General, 95.6 percent of 2018 election mail was delivered within a 1-to-3-day service
standard, which is functionally equivalent to the faster First-Class mail standard.22 The Postal
Service informed congressional leaders on August 11, 2020, that it was ending the practice of
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-investigation-dejoy/.
Postmaster General Louis DeJoy Modifies Organizational Structure to Support USPS Mission, U.S. Postal Serv.
(Aug. 7, 2020), https://about.usps.com/newsroom/national-releases/2020/0807-pmg-modifies-organizationalstructure.htm.
Off. of Inspector Gen., U.S. Postal Serv., Audit Report: Service Performance of Election and Political Mail
During the 2018 Midterm and Special Election 1 (Nov. 4, 2019),
prioritizing all election mail and to prepare for “slower delivery times” and an “increase[d] . . . risk
that voters will not receive their ballots in time to return them by mail.”23
As reported by multiple press outlets, Postal Service employees and union
representatives have expressed serious concerns about the impact of the recent changes on their
ability to process and deliver mail in a timely manner:
a. A postal employee in Lancaster, New York, said that with the new policies, the
facility there is about two days behind normal processing time. She commented,
“[t]he cardinal rule is, ‘don’t delay the mail,’ and we’re in a 180-degree switch
where we’re delaying mail every day.”
b. On the issue of the removal of DBCS machines, Iowa Postal Workers Union
President Kimberly Karol was quoted saying, “I’m not sure you’re going to find an
answer for why [the machines being removed] makes sense, because we haven’t
figured that out either.”
c. As a Postal Service employee at a distribution facility in Buffalo explained, “[l]ook
at it this way: Your local grocery store was forced to cut 1/3 of its cash-out lines,
but management expected the same productivity, quality, and speed for the
customer.” The same employee said their facility was set to lose six out of 21 mail
sorting machines and concluded that maintaining the same productivity, quality,
and speed is “just never going to happen.”
d. In Erie, PA, two of six delivery bar code sorters have been “unplugged” and
“shutter[ed].” Referencing the election, a mail carrier who worked for 37 years
until he retired in 2015 described this change as happening at “the worst possible
time,” suggesting changes should come “later on” and we should “have the
election” first. Otherwise, he said, “the reduction in equipment not just in Erie but
in large Postal Service centers in cities like Pittsburgh will have a ripple effect.”
On July 30, 2020, Postal Service spokesperson David Partenheimer acknowledged
in a statement to the Washington Post that the Postal Service’s recent changes have resulted in
Letter from USPS General Counsel Thomas J. Marshall to Rep. Carolyn Maloney (Aug. 11, 2020), available at
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/USPS%20to%20COR%2008-1120%20re%20Election%20Prep.pdf; see also Pelosi Letter, supra note 9, at 2.
Jacob Bogage, Top Democrats Say Postmaster General Acknowledged New Policies That Workers Say Are
Delaying Mail, Wash. Post (Aug. 6, 2020), https://www.washingtonpost.com/politics/2020/08/06/top-democratssay-postmaster-general-acknowledged-new-policies-that-workers-say-are-delaying-mail/.
Congress has required the Postal Service, before it makes any “change in the nature
of postal services which will generally affect service on a nationwide or substantially nationwide
basis,” to request an “advisory opinion on the change” from the Postal Regulatory Commission.
39 U.S.C. § 3661(b). Although every one of the above-described changes made by DeJoy will
affect service on a nationwide basis, the Postal Service failed to request an advisory opinion for
any of them.
Defendants’ Actions Have Already Caused Widespread Delays In Mail Delivery
There is ample evidence that the administration’s changes to the United States
Postal Service have already significantly slowed mail delivery across the country.
a. For example, Mark Dimondstein, President of the American Post Workers Union,
which represents more than 200,000 Postal Service employees and retirees,
reported in an interview with CNN “that the union has received a number of reports
from postal workers and customers over the last two weeks that mail delivery has
b. Similarly, in Portland, Oregon, Joe Cogan, president of the Portland, Oregon,
chapter of the American Postal Workers’ Union, reported to a local news outlet that
local union members had reported “delayed mail, or mail left for delivery at a later
c. In Boston, several postal workers and presidents of various branches of the APWU
confirmed that mail sorting machines of the type that would be used in the election
had been removed from post offices around Boston. One Boston postal union
officer and postal clerk reported in an interview with WGBH News that the changes
are “intentionally delaying the mail.”27
Veronica Stracqualursi & Jessica Dean, New Postal Policies That Are Slowing Service May Affect 2020 Mail-in
Voting, Union Leader Says, CNN (July 31, 2020), https://www.cnn.com/2020/07/31/politics/usps-mail-in-voting2020-election/index.html.
Blair Stenvick, Portland Postal Union Says USPS Is Actively Slowing Down Mail Service, Portland Mercury
(Aug. 14, 2020), https://www.portlandmercury.com/blogtown/2020/08/14/28734947/portland-postal-unionpresident-says-usps-is-removing-mail-processing-machines-and-slowing-down-mail-service.
Saraya Wintersmith, At Least a Dozen Mail Sorting Machines Have Already Been Removed in Massachusetts,
Postal Union Officials Say, WGBH News (Aug. 17, 2020), https://www.wgbh.org/news/local-news/2020/08/17/atleast-a-dozen-mail-sorting-machines-have-already-been-removed-in-massachusetts-postal-union-officials-say.
Elected officials have also reported being “flooded by worried calls and emails”
from constituents over significant mail delivery delays.28
For example, on July 21, 2020, U.S. Representative Andy Kim of the Third District
of New Jersey sent a letter to Postmaster General DeJoy expressing his “concern[s] about recent
mail delivery delays in New Jersey’s Third District and elsewhere around the country,” noting that
“[m]any of [his] constituents have rightly contacted [his] office to express frustration and concern
about ongoing mail delivery delays, some of whom have not received their medications and firstclass mail for more than three days.”29
Similarly, U.S. Representative Brendan Boyle of Pennsylvania’s Second District
reported that his office received approximately 345 complaints about the Postal Service in July
2020, a more than 2,000 percent increase in complaints from the prior year.30
Several state Attorneys General have issued statements condemning the recent
changes in the Postal Service and citing concerns over the delay in mail delivery. For example,
on August 17, 2020, Connecticut Attorney General William Tong tweeted that his office has
“heard shocking and heartbreaking stories from people across the nation about delayed
medications, absentee ballots and pay checks”31 and recounted some of those anecdotes of impact
from slower mail delivery in recent weeks:
a. “I [receive] prescriptions in the mail I recently renewed and, foreseeing this issue,
ordered early. They normally take one week but this time took two.”
Luke Broadwater et al., Postal Crisis Ripples Across Nation as Election Looms, N.Y. Times (Aug. 15, 2020),
Letter from Congressman Andy Kim to the Hon. Louis DeJoy, Postmaster Gen. (July 21, 2020), available at
Broadwater et al., supra note 28.
@AGWilliamTong, Twitter (Aug. 17, 2020, 12:36 PM),
b. “My husband ordered his cholesterol medication to be delivered by mail in late July
which normally takes one week to fill. When it didn’t arrive on time he was out of
c. “We did not receive the ballots by primary day, in fact we have yet to [receive]
them, so we put aside our concerns about the virus and voted in person.”
d. “Both of our ballots for the CT primary arrived late.”
e. “I am disabled and retired, my disability payments are paid to a trust and over the
last two months I have not [received] my check until close to two weeks after it’s
due. We have seen our mail which used to come by 10 A.M. arrive after 4 P.M.”
f. “I waited two weeks before receiving a vital piece of pension information for my
pending divorce. This had delayed the finalization process. I am waiting for
finalization to qualify for a home loan.”
g. “My landlord requires a paper check mailed from my bank each month, and for the
first time ever I’m afraid I might be late on my rent due to these delays.”
Similarly, on August 17, 2020, New York Attorney General Letitia James issued a
statement in response to “recent reports about President Donald Trump’s efforts to interfere with
[Postal Service] operations in advance of the presidential election,” stating that “President Trump’s
actions to interfere with the operations of the U.S. Postal Service in advance of the presidential
election is deeply disturbing.”32
The recent changes to the Postal Service are anticipated to have a significant and
irreparable impact on nationwide voting. The Postal Service itself issued warnings to Maryland,
45 other states, and the District of Columbia that “certain deadlines for requesting and casting
mail-in ballots are incongruous with the Postal Service’s delivery standards. This mismatch
Press Release, Attorney General James Vows to Fight President Trump’s Efforts to Defund U.S. Postal Service
and Undermine Elections, Letitia James N.Y. Att’y Gen. (Aug. 17, 2020), https://ag.ny.gov/pressrelease/2020/attorney-general-james-vows-fight-president-trumps-efforts-defund-us-postal.
creates a risk that ballots requested near the deadline under state law will not be returned by mail
in time to be counted under your laws as we understand them.”33
The Washington Post analyzed the Postal Service’s letters to the various states.
That analysis indicates that as many as 159.5 million registered voters live in the 40 states that
received serious warnings from the Postal Service due to a high “threat of ballot rejection because
of missed delivery deadlines” in those states.34
Further reporting by the Washington Post indicates that the removal of mail sorting
machines could significantly hamper the sorting capacity of the Postal Service in high-traffic areas
in advance of the election. For example, due to the removal of mail sorting machines, the sorting
capacity of New York City is anticipated to have been reduced by 324,000 pieces of mail per hour;
Philadelphia by 310,000 pieces of mail per hour; Columbus by 327,000 pieces of mail per hour;
Houston, TX, by 470,000 pieces of mail per hour; and Los Angeles by 577,000 pieces of mail per
Examples from states that held recent primaries by mail offer insight into the likely
impact of delays in mail delivery in the national election. For example, in Florida, even without
slowdowns in delivery, “18,500 mailed ballots arrived too late to be counted” in the Democratic
U.S. Postal Service Letters to States, Wash. Post (last updated Aug. 14, 2020),
Erin Cox et al., Postal Service Warns 46 States Their Voters Could Be Disenfranchised by Delayed Mail-in
Ballots, Wash. Post (Aug. 14, 2020), https://www.washingtonpost.com/local/md-politics/usps-states-delayed-mailin-ballots/2020/08/14/64bf3c3c-dcc7-11ea-8051-d5f887d73381_story.html.
presidential primary on March 17, 2020.36
In California, more than 70,000 ballots were
disqualified for having missed the receipt deadline.37
Defendants Have Acted Intentionally to Undermine the Postal Service
to Affect the Election
Defendants’ actions threaten to deny the right to vote to every voter who seeks to
rely on the Postal Service to vote in the upcoming general election. But notwithstanding the
sweeping harm that their actions will have for voters of every political preference and affiliation,
Defendants’ efforts to undermine the Postal Service have a clear and unambiguous purpose: to
affect the President’s chance of reelection because the President believes that increased voting by
mail will harm his chances of reelection and also harm other Republican candidates.
The President has repeatedly made clear that he does not want voters to rely on the
Postal Service to vote and stated his belief that widespread use of mail-in voting will result in his
losing the upcoming presidential election. The President has on numerous occasions accused
Democrats of “rigging” the election through mail-in voting and has repeatedly claimed—without
any basis—that Republicans are at a disadvantage when mail-in ballots are used and often are not
sent mail-in ballots at all.
On March 30, 2020, President Trump stated on the Fox News Network talk show
Fox and Friends that increasing access to mail voting hurts Republicans. Referring to a
coronavirus relief bill supported by House Democrats, President Trump stated, “[t]he things they
had in there were crazy. They had levels of voting that if you ever agreed to it you’d never have a
Republican elected in this country again.”
Michael R. Blood, California Rejected 100K Mail-in Ballots Because of Mistakes, Associated Press (July 13,
On April 8, 2020, President Trump tweeted: “Republicans should fight very hard
when it comes to statewide voting by mail. Democrats are clamoring for it. Tremendous potential
for voter fraud, and for whatever reason, doesn’t work out well for Republicans.”
On May 24, 2020, President Trump tweeted that Democrats who support voting by
mail are “trying to Rig the 2020 Election, plain and simple!”
On May 28, 2020, President Trump tweeted: “MAIL-IN VOTING WILL LEAD
TO MASSIVE FRAUD AND ABUSE. IT WILL ALSO LEAD TO THE END OF OUR GREAT
REPUBLICAN PARTY. WE CAN NEVER LET THIS TRAGEDY BEFALL OUR NATION.
BIG MAIL-IN VICTORY IN TEXAS COURT TODAY. CONGRATS!!!”
On July 30, 2020, President Trump again took to Twitter to lambaste voting by mail
and even suggested delaying the presidential election: “With Universal Mail-In Voting (not
Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT
Election in history. It will be a great embarrassment to the USA. Delay the Election until people
can properly, securely and safely vote???”
On August 10, 2020, President Trump stated at a White House press briefing that
the Postal Service is not equipped to handle increased voting by mail, and he encouraged
Americans to vote in person, suggesting, without any basis, that the risks posed by the pandemic
will disappear in 90 days or less: “Our system is not equipped for it. The Post Office is not equipped
for it. And people should vote, like they did in World War One and World War Two. And your
numbers will be—in 90 days or less, your numbers will be very good, I think—much better—on
the coronavirus or the China virus. But it’s something you have to look about—look at and say,
‘This is just crazy.’”
The President’s statement followed shortly after a meeting between President
Trump and Postmaster General DeJoy in the Oval Office on or around August 5, 2020, in advance
of a meeting between Postmaster General DeJoy and Democratic congressional leaders.
On August 13, 2020, President Trump called into the Fox Business Network talk
show Mornings with Maria and admitted that he is opposing the Postal Service’s urgent request
for $25 billion, including $3.5 billion to support mail-in voting, because of his political objections
to expanding mail-in voting. He stated on the call: “They [congressional Democrats] want $3.5
billion for something that will turn out to be fraudulent, that’s election money basically. They want
3.5 trillion—billion dollars for the mail-in votes, OK, universal mail-in ballots, 3.5 trillion
[billion]. They want $25 billion, billion, for the Post Office. Now they need that money in order to
have the Post Office work so it can take all of these millions and millions of ballots. Now, in the
meantime, they aren’t getting there. By the way, those are just two items. But if they don’t get
those two items, that means you can’t have universal mail-in voting because they’re not equipped
to have it.” President Trump also suggested that in states that have adopted universal mail-in
voting, like California, “maybe [mail-in ballots will] go to everybody but Republicans.”
President Trump reiterated his views at a White House press briefing later that day,
specifically accusing Democrats of election fraud: “Mail-in voting—it’s going to be the greatest
fraud in the history of elections. When you always talk about ‘Russia, Russia, Russia,’ China, Iran
on voting—your biggest problem is going to be with the Democrats, not with China, Russia, and
Iran. Your biggest problem is going to be with the Democrats.”
President Trump’s handpicked Postmaster General, Louis DeJoy, is a major
Republican donor. Postmaster General DeJoy has donated hundreds of thousands of dollars to
Republican candidates, committees, and PACS in 2020 and has hosted events and fundraisers for
Republican presidential candidates and presidents since 2006. Postmaster General DeJoy has
donated millions of dollars to the Republican Party and President Trump’s campaign since 2016.
Postmaster General DeJoy is in frequent contact with top Republican Party
officials. He served as national deputy finance chairman for the Republican National Committee
and national finance chair for the 2020 Republican National Convention.
Postmaster General DeJoy’s Recent Statement
On August 18, 2020 Postmaster General DeJoy issued a statement asserting that
“[t]o avoid even the appearance of any impact on election mail, I am suspending [certain]
initiatives until after the election is concluded.” Specifically, Postmaster General DeJoy stated
that he “want[ed] to assure all Americans of the following”: (1) “Retail hours at Post Offices will
not change”; (2) “Mail processing equipment and blue collection boxes will remain where they
are”; (3) “No mail processing facilities will be closed.”; and (4) “that overtime has, and will
continue to be, approved as needed.” Postmaster General DeJoy also stated that, “[i]n addition,
effective Oct. 1, we will engage standby resources in all areas of our operations, including
transportation, to satisfy any unforeseen demand.”
Postmaster General DeJoy’s statement does not lessen Plaintiffs’ need for
immediate relief from this Court. Some of the actions Postmaster General DeJoy commits to
“suspending” are not actions Plaintiffs challenge in this lawsuit and are unlikely to affect the
election (e.g., retail hours at post offices). Other commitments are equivocal, like the Postmaster’s
commitment to approve overtime “as needed” and to “engage” resources “to satisfy any unforeseen
demand.” Nothing in the statement commits to remedying any of the Transformative Actions
already undertaken—such as the removal of collection boxes and sorting machines and the deprioritization of election mail—that have already impacted mail delivery and will likely have a
devastating impact on the ability of Americans to vote in the upcoming election, unless ordered
reversed by this Court. Moreover, absent a court order, any and all of these commitments are
subject to change at any time.
The right to vote is at the very core of democracy. Indeed, it defines it. The
Postmaster General’s statement is simply not enough to dispel the need for judicial action in light
of Defendants’ unlawful and unconstitutional conduct. The stakes are too high.
CLAIMS FOR RELIEF
(Undue Burden on the Fundamental Right to Vote in
Violation of the United States Constitution)
The allegations in the complaint are incorporated as though fully set forth herein.
The Transformative Actions taken by Defendants, as detailed above, impose an
undue burden on voters’ fundamental right to vote in violation of the United States Constitution.
That burden is particularly severe in the context of the ongoing COVID-19 pandemic.
Under the United States Constitution, a court considering a challenge to election-
related regulations must carefully balance the character and magnitude of injury to the plaintiff’s
right to vote against the precise interests put forward by the government as justifications for the
burden imposed by its rules, taking into consideration the extent to which those interests make it
necessary to burden the plaintiff’s rights. However slight the burden may appear, it must be
justified by relevant and legitimate government interests sufficiently weighty to justify the
Unless Plaintiffs are granted the relief requested herein, the right to vote and to have
that vote count will be significantly burdened if not wholly extinguished for thousands of
Plaintiffs’ members—and potentially tens or hundreds of thousands of other voters—by delays in
mail delivery of applications to vote by mail, blank mail-in ballots to voters, and completed ballots
to state and local elections officials for the November 3, 2020, general election.
Because of the high risk of exposure to the novel coronavirus during the pandemic,
casting a mail-in ballot has become the safest way to vote. Plaintiffs’ members who are qualified
voters are, as a result of Defendants’ actions, at a significant risk of not receiving their mail-in
ballots in sufficient time to mail them to their respective local election officials so that they are
received prior to the relevant deadlines for those ballots to be counted. As detailed above,
Defendants have admitted as much, warning that the Postal Service will not be able to handle the
expected volume of election mail in a timely manner.
Even if Plaintiffs’ members who timely request mail-in ballots receive and send
back their ballots in a timely fashion, Defendants’ actions still place these voters at risk of having
their ballots delivered to local election officials after the relevant deadlines for those ballots to be
counted, through no fault of the voters.
Particularly against the backdrop of this unprecedented public health crisis,
Defendants cannot provide any sufficiently weighty justification for taking the Transformative
Actions detailed above, which will substantially delay delivery of mail-in ballots to voters and, in
turn, to election officials and thereby deny the right to vote to thousands of qualified voters.
Defendants’ Transformative Actions do not advance any government interest sufficiently weighty
to justify the resulting burdens on the right to vote, and those actions therefore violate the
Constitution and must be enjoined.
(First Amendment—Content and Viewpoint Discrimination)
The allegations in the complaint are incorporated as though fully set forth herein.
The operation and regulation of the Postal Service is subject to the free-speech
requirements of the First Amendment to the U.S. Constitution. As the Supreme Court has stated,
so long as the Postal Service exists, “the use of the mail is almost as much a part of free speech as
the right to use our tongues.” Lamont v. Postmaster Gen. of U.S., 381 U.S. 301, 305 (1965)
(quoting U.S. ex rel. Milwaukee Soc. Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921)
(Holmes, J., dissenting)).
Under the First Amendment, governmental regulations that place a substantial
burden on constitutionally protected speech are subject to strict scrutiny, the most exacting form
of judicial review. Such regulations are presumptively unconstitutional and may be justified only
if the government proves that they are narrowly tailored to serve compelling state interests.
Content-based and speaker-based regulations—those that target speech based on its
communicative content or the identity of the speaker—are similarly subject to strict scrutiny under
the First Amendment. Even government regulations that appear neutral on their face, but that are
adopted because of disagreement with the speaker, subject matter, or message, are subject to strict
Government discrimination among viewpoints—the regulation of speech based on
the ideology, opinion, or perspective of the speaker—is a particularly blatant and egregious form
of content discrimination. Viewpoint-discriminatory restrictions on speech are almost always
Defendants’ Transformative Actions, as described in detail above, will place a
substantial burden on the constitutionally protected right of American voters to cast ballots in favor
of preferred candidates. As a result of these changes, and particularly in the context of the ongoing
COVID-19 pandemic, many voters will lose the right to support the candidates of their choice and
to weigh in on ballot initiatives and referenda in federal, state, and local elections.
Defendants’ Transformative Actions, as described in detail above, were motivated
by hostility toward the use of the mail to cast a ballot—that is, to the exercise of the constitutional
right to vote and thereby express an opinion about selection of our elected officials, including the
President of the United States. Such actions, motivated as they are by hostility toward those who
use the mail with respect to a particular subject and particular types of messages, are speaker-based
and content-based and therefore subject to strict scrutiny.
Defendants’ Transformative Actions, as described in detail above, were motivated
also by hostility to the specific motivating ideologies, opinions, and perspectives of certain
speakers. Defendants acted on their belief and expectation that suppressing the ability of qualified
voters to cast their ballots by mail, rather than exposing themselves to risk of COVID-19 infection
at polling places, would favor the President and his preferred candidates. Such targeting of speech
based on hostility to the political viewpoints of the speakers is an egregious form of content
discrimination that strikes at the core of the First Amendment’s guarantee of free speech. It is per
Defendants’ actions are not narrowly tailored to further any compelling government
interest. They therefore fail strict scrutiny and are unconstitutional under the First Amendment.
Defendants’ actions, absent preliminary and permanent injunctive relief, will
deprive Plaintiffs’ members and thousands of other voters of their First Amendment rights of free
(Not in Accordance With Procedure Required By Law)
The allegations in the complaint are incorporated as though fully set forth herein.
Defendants’ Transformative Actions, as described in detail above, individually and
collectively constitute a change or changes in the nature of postal services that will generally affect
service on a nationwide or substantially nationwide basis. Such a change may not be implemented
by the Postal Service without first submitting a proposal, within a reasonable time prior to the
effective date of the proposed change, to the Postal Regulatory Commission requesting an advisory
opinion on the change. 39 U.S.C. § 3661(b).
39 U.S.C. § 3661 requires that the Postal Regulatory Commission, prior to issuing
an opinion on a proposed change, provide an opportunity for hearing on the record under Sections
556 and 557 of Title 5 of the U.S. Code (the Administrative Procedure Act); the hearing must
include input from the Postal Service, users of the mail, and an officer of the Commission who
shall be required to represent the interests of the general public. 39 U.S.C. § 3661(c). The opinion
of the Commission must made be in writing and must include a certification by each Commissioner
agreeing with the opinion. Id.
Implementation of the Transformative Actions by Defendants without compliance
with 39 U.S.C. § 3661 denies Plaintiffs and all other postal users in the United States their
fundamental right to a hearing on Defendants’ proposed changes. It further deprives Plaintiffs and
all other postal users of the expertise of the bipartisan five-member Postal Regulatory Commission.
Denial of a hearing, including the opportunity to present evidence, prior to
implementation of the Transformative Actions has caused and, absent a preliminary and permanent
injunction, will continue to cause irreparable harm to Plaintiffs and all other postal users.
Plaintiffs are entitled to a preliminary and permanent injunction prohibiting
Defendants from implementing the Transformative Actions and directing them to reverse those
already implemented, unless and until Defendants have sought and obtained an opinion from the
Postal Regulatory Commission pursuant to 39 U.S.C. § 3661.
The allegations in the complaint are incorporated as though fully set forth herein.
Neither the Postmaster General nor the Postal Service can take any action that
exceeds the scope of their constitutional or statutory authority.
By statute, the Postal Service “shall provide prompt, reliable, and efficient services
to patrons in all areas and shall render postal services to all communities,” and “[t]he costs of
establishing and maintaining the Postal Service shall not be apportioned to impair the overall value
of such service to the people.” 39 U.S.C § 101(a). In addition, “[i]n determining all policies for
postal services,” the Postal Service is statutorily mandated to “give the highest consideration to
the requirement for the most expeditious collection, transportation, and delivery of important letter
mail.” 39 U.S.C § 101(e).
In addition, “[i]t shall be the responsibility of the Postal Service” to “(1) to maintain
an efficient system of collection, sorting, and delivery of the mail nationwide; (2) to provide types
of mail service to meet the needs of different categories of mail and mail users; and (3) to establish
and maintain postal facilities of such character and in such locations, that postal patrons throughout
the Nation will, consistent with reasonable economies of postal operations, have ready access to
essential postal services.” 39 U.S.C. § 403(b).
The Transformative Actions are outside the enumerated powers under 39 U.S.C.
§ 401 and § 404 and violated the Postal Service’s duties under 39 U.S.C. § 101 and § 403.
Defendants DeJoy and the Postal Service have acted ultra vires in exceeding their
authority delegated under the Postal Service statute.
The actions of Defendants Postal Service and DeJoy exceeded their statutory and
constitutional powers because they are arbitrary and capricious. Specifically, in undertaking the
Transformative Actions, Defendants relied on factors that Congress did not intend them to
consider, failed to consider an important aspect of the problem, and offered no explanation for
their decisions consistent with the evidence before them.
Defendants DeJoy and the Postal Service have acted ultra vires in taking actions
designed to delay and obstruct the delivery of election mail with the purpose of interfering with
the outcome of the upcoming national election.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs ask for the following relief:
1. Declaring that the Transformative Actions of the Defendants described herein deprive
Plaintiffs and other qualified voters of their fundamental right to vote, in violation of
the United States Constitution;
2. Declaring that the Transformative Actions of the Defendants described herein violate
the First Amendment to the United States Constitution;
3. Declaring that the Transformative Actions of the Defendants described herein were
taken without observance of procedures required by law because they constitute
changes in the nature of postal services that will generally affect service on a
nationwide or substantially nationwide basis, and therefore may not be implemented
prior to their submission to the Postal Regulatory Commission for public hearings,
pursuant to 39 U.S.C. § 3661(b);
4. Declaring that the Transformative Actions of the Defendants described herein are ultra
vires because they exceed the Postmaster General’s statutory and regulatory authority;
5. Preliminarily and permanently enjoining Defendants and their respective agents,
officers, employees, and successors, and all persons acting in concert with each or any
of them or under their direction or control, from implementing and/or continuing to
implement any of the Transformative Actions;
6. Preliminarily and permanently enjoining Defendants from implementing or continuing
to implement the Transformative Actions described herein and other changes that will
generally affect service on a nationwide or substantially nationwide basis unless and
until they and the Postal Regulatory Commission have fully complied with 39 U.S.C.
7. Ordering Defendants to immediately take steps to undo any Transformative Actions
described herein and declared unlawful, and which have previously been implemented
in whole or in part by Defendants;
8. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees; and
9. Award such other, further, and different relief as the Court deems just and proper.
Dated: August 18, 2020
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW
ARNOLD & PORTER
KAYE SCHOLER LLP
/s/ Kenneth L. Chernof_______________
Kenneth L. Chernof (Bar No. 17195)
John A. Freedman (Bar No. 20276)
Lindsey D. Carson*
Stephen K. Wirth*
Kaitlin Konkel (Bar No. 20001)
Graham W. White*
Leslie C. Bailey*
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Avenue NW
Washington, DC 20001-3743
Jon M. Greenbaum*
Ezra D. Rosenberg*
Bradley S. Phillips*
Lawyers’ Committee for
Civil Rights Under Law
1500 K Street NW
Washington, DC 20001
Douglas A. Winthrop*
Benjamin T. Halbig*
Arnold & Porter Kaye Scholer LLP
Three Embarcadero Center - 10th Floor
San Francisco, CA 94111-4024
Counsel for Plaintiffs National Urban League, Common Cause, and
League of Women Voters of the United States
* Pro hac vice application forthcoming
CERTIFICATE OF SERVICE
I hereby certify that this document will be served on Defendants in accordance with Fed.
R. Civ. P. 4.
/s/ Kenneth L. Chernof
Kenneth L. Chernof
601 Massachusetts Ave., NW
Washington, D.C., 20001
T: (202) 942-5000
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