Richardson v. TrumpRichardson v. Trump
Plaintiffs—four voter-eligible individuals from Texas, Pennsylvania, New York, and Wisconsin—bring this lawsuit against Defendants President Donald J. Trump (“President Trump“), in his official capacity as President of the United States; Louis DeJoy (“Mr. DeJoy“), in his official capacity as Postmaster General of the United States; and the United States Postal Service (“USPS“) alleging (1) violation of the constitutional right to vote; (2) civil conspiracy to violate the right to vote; and (3) ultra
Upon consideration of the Plaintiffs’ motion, the response, and reply thereto, the applicable law, and the entire record, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion.
I. Background
A. Factual Background
1. The COVID-19 Pandemic
The COVID-19 pandemic has increased reliance on mail delivered by the USPS. See Hersh Decl., ECF No. 57-6 ¶ 10. Several states have adjusted their election procedures to allow for all eligible voters to vote by mail-in ballot in the November 2020 election. For example, nine states and the District of Columbia will automatically send voters ballots this year, and another nine states will automatically send voters an application to request an absentee ballot. Id. ¶ 12. In addition, “some 77% of Americans live in jurisdictions in which anyone can request a mail ballot (without an excuse) or are mailed applications to vote by mail or are mailed actual ballots to cast votes by mail.” Id. ¶ 14. In total, the adjustments made by many states in response to the COVID-19 pandemic will result
2. USPS Postal Policy Changes
In June and July 2020, the USPS announced and implemented a series of changes (collectively, “Postal Policy Changes“) to how it collects, processes, and delivers mail.
First, in a “leaked PowerPoint” titled “PMGs expectations and plan,” USPS announced that penalty overtime “will be eliminated” and “[o]vertime will be eliminated” because “we are paying too much in [overtime] and it is not cost effective” (“Overtime Policy“). Am. Compl., ECF No. 49 ¶ 48 (citing Leaked USPS PowerPoint Indicates PMG DeJoy Focus on Getting Operating Costs Under Control, Alliance of Nonprofit Mailers (July 14, 2020), nonprofitmailers.org/leaked-usps-powerpoint-indicates-pmg-dejoy-focus-on-getting-operating-costs-under-control/ [hereinafter “USPS PowerPoint“]2). In testimony before the House Oversight and Reform Committee on August 24, 2020, Mr. DeJoy stated that he “did not direct the elimination or any cutback in overtime.” See Ex. 14 to Defs.’ Response Pls.’ Mot. Prelim. Inj. (“Defs.’ Opp‘n“), ECF No. 55-4 at 305.
Third, on July 10, 2020, the USPS announced several “transportation changes,” including changes prohibiting “late trips” and “extra trips” (“Late/Extra Trips Policy“). Am. Compl., ECF No. 49 ¶ 52 (citing Jory Heckman, USPS Warns Staff of Temporary Mail Delays As It Cuts “Soaring” Delivery Costs, Fed. News Network (July 15, 2020), https://federalnewsnetwork.com/management/2020/07/usps-warns-staff-of-temporarymail-delays-as-it-cuts-soaring-delivery-costs4). The USPS knew that prohibiting these trips would result
Sixth, in August 2020, USPS also began removing mailboxes in New York, Pennsylvania, Oregon, and Montana. Pls.’ Mot., ECF No. 15 at 22. Defendants state that the removal of mailboxes has been suspended until after the November 2020 election. Defs.’ Opp‘n, ECF No. 55 at 23-24.
Seventh, on or around July 29, 2020, the USPS General Counsel informed 46 states and the District of Columbia that if the states did not pay First Class postage on ballots sent to voters, there would be a risk that voters would not receive their ballots in time to return them by mail. See Pls.’ Reply, ECF No. 57 at 12; see also Goldway Decl., ECF No. 57-7 ¶¶ 4-6. This was a change to the USPS practice of treating “Election Mail”10 and political mail mailed as marketing mail on an expedited First-Class basis. Pls.’ Reply, ECF No. 57 at 12; see also Goldway Decl., ECF No. 57-7 ¶¶ 5-7.
“[O]n-time mail delivery fell abruptly following . . . [Mr.] DeJoy‘s July 2020 directives ordering operational changes in mail service and delivery. By the second week of August 2020, on-time delivery of First-Class Mail nationwide had fallen nearly 10 percentage points compared to the week preceding the change.” Pls.’ Reply, ECF No. 57 at 9-10 (quoting Senator Gary Peters, U.S. Senate Comm. on Homeland Sec. & Gov‘t Affairs, Failure to Deliver: Harm Caused by U.S. Postmaster General DeJoy‘s Changes to Postal Service Mail Delivery 3 (Sept. 16, 2020), https://www.hsgac.senate.gov/imo/media/doc/200916_FullReport_PetersPostalInvestigation.pdf [hereinafter “Senate Report“]11); see also Senate Report at 1 (“[T]hese changes significantly slowed mail delivery across the entire country and, as Senator Peters wrote to Postmaster General DeJoy and detailed in an interim report, ‘compromised service for veterans, small businesses, rural communities, seniors, and millions of Americans who rely on the mail for medicines, essential goods, voting, correspondence, and for their livelihoods.‘“). In an August 13, 2020 email to all USPS employees, Mr. DeJoy
On August 18, 2020, Mr. DeJoy issued a statement that the USPS would be suspending “some longstanding operational initiatives—efforts that predate my arrival at the Postal Service—that have been raised as areas of concern as the nation prepares to hold an election in the midst of a devastating pandemic.” Am. Compl., ECF No. 49 ¶ 63 (quoting Press Release, USPS, Postmaster General Louis DeJoy Statement (Aug. 18, 2020), https://about.usps.com/newsroom/national-releases/2020/0818-postmaster-general-louis-dejoy-statement.htm12). Specifically, Mr. DeJoy stated that: (1) “[r]etail hours at Post Offices will not change“; (2) “[m]ail processing equipment and blue collection boxes will remain where they are“; (3) “[n]o mail processing facilities will be closed“; (4) “overtime has, and will continue to be, approved as needed.” Press Release, USPS, Postmaster General Louis DeJoy Statement (Aug. 18, 2020), https://about.usps.com
Defendants state that “[t]he only exception to [Mr. DeJoy‘s] directive to maintain the status quo through Election Day pertains to the ongoing effort to improve compliance with existing schedules throughout USPS‘s transportation and processing networks.” Defs.’ Opp‘n, ECF No. 55 at 22. However, USPS has announced that employees “are not to reconnect/reinstall machines that have been previously disconnected without prior approval from HQ Maintenance.” Am. Compl., ECF No. 49 ¶ 64 (quoting Aaron Gordon, USPS Headquarters Tells Managers Not to Reconnect Mail Sorting Machines, Emails Show, Vice News (Aug. 20, 2020), https://www.vice.com/en_us/article/xg8k4d/usps-emails-tell-managers-not-toreinstall-mail-sorting-machines-postmaster-general-dejoy13); see also id. ¶¶ 96, 111-12. In addition, USPS announced it does not plan to reinstall the mailboxes removed after June 16, 2020. Am. Compl., ECF No. 49 ¶ 119.
4. Plaintiffs’ Factual Allegations
Plaintiffs seek “injunctive relief to protect [their] right to vote by ensuring that the United States Postal Service delivers absentee and mail-in ballots in a timely fashion to
Because they never received their ballots through the mail, each Plaintiff was forced to either vote in-person, risking contracting COVID-19 or infecting at-risk individuals with whom they live, or not vote at all. Id. ¶¶ 11-12. For example, Plaintiff Teresa Richardson resides in Texas and applied for an absentee ballot, based on “disability,” for the July primary election in her state. Ms. Richardson suffers from “debilitating arthritis that has resulted in two hip replacements, a shoulder replacement, and an expected knee replacement” and is a “high risk for COVID-19” because she is currently undergoing “prophylactic treatment resulting from a breast cancer diagnosis.” Richardson Decl., ECF No. 15-2 ¶¶ 4-7. Ms.
Plaintiff Christopher Carroll is a registered voter in Pennsylvania and requested a ballot for the June 2020 primary election in his state. Carroll Decl., ECF No. 15-3 ¶¶ 1, 3-5. He never received his ballot, so he was unable to vote because he was out of the state on the date of the election. Id. ¶ 5. In Pennsylvania, applications to vote by mail must be received 7 days before Election Day; all ballots submitted by mail must be postmarked by Election Day and be received within 3 days after Election Day. See Voting by Mail-in or Absentee Ballot, Commonwealth of Pa. (last visited Oct. 8, 2020), https://www.votespa.com/Voting-in-PA/Pages/Mail-and-Absentee-Ballot.aspx.
Plaintiff Gina Arfi is a registered voter in New York and requested an absentee ballot for the primary election “based on temporary illness or physical disability.” Arfi Decl., ECF No. 15-4 ¶¶ 1, 3. Ms. Arfi never received her ballot; she decided
Finally, Plaintiff Aida Zygas is registered to vote in Wisconsin and requested an absentee ballot for the August 2020 elections in her state because she did not think she would be in the state on the day of the election. Zygas Decl., ECF No. 15-5 ¶¶ 1, 3. She did not receive a ballot; however, she returned to Wisconsin in time for the election and decided to vote in person. Id. ¶ 4. In Wisconsin, applications to vote by mail must be received 5 days before Election Day. All ballots submitted by mail must be postmarked by Election Day and be received within 6 days after Election Day. See Overview of Absentee Voting Rules, Wis. Elections Comm‘n (last visited Oct. 8, 2020), https://elections.wi.gov/sites/default/files/publication/137/absentee_overview_1_27_16_pdf_14821.pdf.
B. Procedural History
Plaintiffs filed this lawsuit on August 17, 2020. See generally Compl., ECF No. 1. On August 20, 2020, Plaintiffs
(1) return postal operations and restore postal service to that in place on January 1, 2020; (2) replace or restore the removed the high-speed sorting machines and mailboxes that have been taken out of service and put them back into operation; (3) restore overtime pay and lift the hiring freeze so that USPS can hire additional employees when and where necessary to ensure the timely processing and delivery of mail-in ballots; (4) make all late mail deliveries instead of letting mail be delayed or go undelivered; (5) restore seasoned employees to their former positions, including the employees who were reassigned or displaced in the recent USPS reorganization; and (6) refrain from any and all other conduct that is intended to interfere and/or interferes with Plaintiffs’ fundamental right to vote in United States elections, including but not limited to the 2020 presidential election.
Pls.’ Appl. Prelim. Inj., ECF No. 14. Plaintiffs also request that the Court appoint a special master to oversee Defendants’ compliance with any injunction. Pls.’ Mot., ECF No. 15 at 28. On September 11, 2020, Plaintiffs filed an amended complaint against Defendants, replacing its claim that Defendants’ conduct violated the Administrative Procedure Act with a claim that the USPS policy changes represent ultra vires agency action.14 Am.
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
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
III. Analysis
A. Plaintiffs Are Likely To Succeed On The Merits Of Their Claim
Plaintiffs claim that they have shown a likelihood of success on the merits of all three of their claims: (1) violation of the right to vote and the right to equal protection;15 (2) civil conspiracy; and (3) ultra vires agency action. Because the Court finds that Plaintiffs have shown they will likely succeed on their claim that Defendants’ policy changes violated their fundamental right to vote, the Court need not evaluate Plaintiffs’ two other claims at this time.
1. Plaintiffs Likely Have Standing
As a threshold matter, Defendants argue that Plaintiffs have failed to establish that they have standing to bring their claim. Defs.’ Opp‘n, ECF No. 55 at 30.
To establish standing, “a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between
“The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561 (citations omitted). “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff‘s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id.
Defendants contend that Plaintiffs have not established that any future injury is “certainly impending,” Defs.’ Opp‘n, ECF No. 55 at 31 (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)), arguing that the fact “[t]hat Plaintiffs may have
The Court disagrees. Plaintiffs exclusively seek prospective injunctive relief. Am. Compl., ECF No. 49 ¶ 10 (“This is a suit for injunctive relief to protect the Plaintiffs’ right to vote by ensuring that the United States Postal Service delivers absentee and mail-in ballots in a timely fashion to them and then, delivers their executed ballots to election officials in time to be counted.“). Under D.C. Circuit precedent, “the proper way to analyze an increased-risk-of-harm claim is to consider the ultimate alleged harm,” which in this
Plaintiffs have cited evidence that delays in mail service, both locally and nationally, correlate with the timing of the USPS policy changes in July and have continued at least into the month of August. See Pls.’ Reply, ECF No. 57 at 9-10 (“By the
Defendants also claim that even if the USPS policy changes did cause the primary ballots to never arrive, that still does “not support an inference that these delays will affect Plaintiffs in particular again” because Plaintiffs have not alleged that the mail delays “affect all voters across-the-board . . . [or that they] are uniquely susceptible to these delays.” Defs.’ Opp‘n, ECF No. 55 at 32. Defendants argue that “Plaintiffs’ allegations also fail to account for the fact that the delays that affected USPS in July are being remedied, . . . or the tremendous amount of resources that USPS has pledged to support the upcoming election.” Id. However, as stated above, there is sufficient evidence to show that Defendants’ policy
For all of these reasons, the Court finds that Plaintiffs’ have standing.
2. The Applicable Legal Standard
Prior to considering the likelihood of success on the merits, the parties disagree on which legal standard should govern Plaintiffs’ claim that the USPS policy changes infringe upon their constitutional right to vote.
Plaintiffs argue that “[d]elaying mail-in ballots places an unconstitutional burden on Plaintiffs’ right to vote and merits strict scrutiny.” Pls.’ Reply, ECF No. 57 at 22. In Plaintiffs’ view, “[l]aws that govern the handling of ballots are reasonably understood as directly regulating the election, whether the ballot is handled by a poll worker or a mail handler or letter carrier.” Id. at 21. Defendants, on the other hand, argue that because the USPS policy changes only indirectly affect Plaintiffs, the rational basis test should apply. Defs.’ Mot., ECF No. 55 at 33. Defendants contend that the cases Plaintiffs
In McDonald, the Supreme Court held that an Illinois statute that denied certain inmates mail-in ballots did not impose an unconstitutional burden on their right to vote. Id. at 807. Rather, the statute only restricted their asserted right to receive an absentee ballot, and they were therefore not “absolutely prohibited from voting by the State.” Id. at 808 & n.7. The Supreme Court noted that “the record is barren of any indication that the State might not, for instance, possibly furnish the jails with special polling booths . . . or provide guarded transportation to the polls.” Id. at 808 n.6. The Court further noted that a more rigid standard is proper only when the policy or practice at issue categorically “den[ies] [plaintiffs] the exercise of the franchise . . . preclud[ing] [them] from voting.” Id. at 807-08. Accordingly, the Supreme Court upheld the statute under rational basis review. Id. at 811. Defendants argue that McDonald is controlling because “Plaintiffs are
Although Plaintiffs concede that they are not wholly prohibited from voting, as they may choose to vote in person if they do not receive a mail-in ballot in time, the Court finds that McDonald is inapplicable here. First, Defendants mischaracterize Plaintiffs’ claim in this case. Plaintiffs do not broadly challenge the USPS policy changes as denying them the right to receive mail-in ballots, as was at issue in McDonald. There is no dispute that Plaintiffs are eligible to vote by mail under their respective state laws. Rather, the question here is whether USPS may implement a policy that may arbitrarily prevent a large swath of voters, eligible to receive a mail-in ballot, from receiving their ballots in the first place. Second, as the Supreme Court noted in a concurring opinion, McDonald involved a “relatively trivial inconvenience encountered by a voter unable to vote by absentee ballot when other means of exercising the right to vote [were] available.” O‘Brien v. Skinner, 414 U.S. 524, 532 (1974) (Marshall, J., concurring) (noting that the record in McDonald was “barren of any indication” that the State would not provide alternative
The Court also declines to apply strict scrutiny to the claim automatically, as Plaintiffs suggest. Rather, the Court finds that the Anderson-Burdick framework, derived from Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992), likely applies here. Under the Anderson-Burdick line of cases, courts have recognized that “‘[e]lection laws will invariably impose some burden upon individual voters,’ and that not all laws burdening the right to vote are subject to strict scrutiny.” Libertarian Party v. D.C. Bd. of Elections & Ethics, 682 F.3d 72, 73-74 (D.C. Cir. 2012) (alteration in
Courts have applied this framework in the context of non-election laws that have an effect on voters’ rights or political candidates’ rights. For example, in Monserrate v. New York State Senate, 599 F.3d 148 (2d Cir. 2010), the United States Court of Appeals for the Second Circuit addressed a First Amendment challenge to the New York Senate‘s decision to expel a senator who had been accused of domestic violence. Id. at 152-53. The Second Circuit found that the Anderson-Burdick line of cases was not limited to the pre-vote election law context, stating that the Supreme Court had “minimized the extent to which voting rights are distinguishable from ballot access cases” because “the rights of voters and the rights of candidates do not lend themselves to neat separation.” Id. at 155 (internal citations and quotation marks omitted). Accordingly, the Second Circuit applied the Anderson-Burdick test in analyzing whether the senator‘s expulsion burdened constitutional rights related to voting and political association. Id.; see also Peeper v. Callaway Cnty. Ambulance Dist., 122 F.3d 619, 622-23 (8th Cir. 1997) (analyzing a board resolution prohibiting a newly elected ambulance board member from voting on certain matters because her husband worked for the ambulance district under the Anderson-Burdick framework); Hussey v. City of Portland, 64 F.3d 1260, 1262, 1264 (9th Cir. 1995) (applying the Anderson-Burdick framework in evaluating the constitutionality of an “ordinance requiring non-residents to consent to annexation as a condition of receiving a subsidy, or reduction in hook-up costs, for mandated sewer connections,” finding that consents were the
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.
Although Defendants argue that failing to apply the rational basis test to “non-election policies that may have some
Accordingly, the Court finds that the Anderson-Burdick framework likely applies to Plaintiffs’ claim.
Plaintiffs argue that the USPS policy changes infringe upon their constitutional right to vote and violate the Equal Protection Clause. The Court agrees that, under the Anderson-Burdick framework, Plaintiffs have shown that they are likely to succeed on the merits of their claim.
As explained above, under the Anderson-Burdick framework, the Court must determine whether “the character and magnitude of the asserted injury to the rights protected by the First and [Fifth] Amendments that the plaintiff seeks to vindicate” outweighs “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into account “the extent to which those interests make it necessary to burden the plaintiff‘s rights.” Burdick, 504 U.S. at 433-34. Next, the court evaluates how much deference to afford to the government‘s interests. If voting rights are “subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance.” Id. at 434 (internal quotation marks omitted). But when a voter‘s rights are subjected only to “reasonable, nondiscriminatory restrictions,” then courts apply a rational basis review. Id. (internal quotation marks omitted).
“It is beyond cavil that ‘voting is of the most fundamental
Here, the Court finds that the “character and magnitude” of Plaintiffs’ asserted injury to the right to vote is significant. Although Defendants call Plaintiffs’ harm “speculative,” Defs.’ Opp‘n, ECF No. 55 at 35, Plaintiffs have provided sufficient evidence suggesting that Defendants’ policy regarding extra and late trips has caused and will continue to cause inconsistency and arbitrary delays in the delivery of mail across the United States, placing at risk Plaintiffs’ ability to receive their mail-in ballots in time or have them arrive at their local election office in time. See Senate Report at 3 (stating that “[b]y the second week of August 2020, on-time delivery of First-Class Mail nationwide had fallen nearly 10 percentage points compared to the week preceding the [USPS policy changes]“); Grimmer Decl., ECF No. 57-4 at 24-25 (indicating that USPS data shows that on-time delivery of First-Class Mail had not bounced back to the average experienced prior to July). For example, Plaintiffs explain that “[e]ven in states where ballots need only be postmarked by Election Day, delays of two to three days are likely to disenfranchise a large portion of the electorate,” Pls.’ Reply, ECF No. 57 at 11, because those ballots still have to arrive at the election office in time to be counted, see, e.g., Voting by Mail-in or Absentee Ballot, Commonwealth of Pa.
Furthermore, Defendants’ policy changes place an especially severe burden on the Plaintiffs who have no other reasonable choice than to vote by mail, such as those who may be
Defendants argue that the Plaintiffs’ claim must fail because there is no constitutional right to vote by mail and states are not required to offer mail-in voting. Defs.’ Opp‘n, ECF No. 55 at 32-33. Defendants contend that “[i]f a State can prohibit mail-in voting . . . then USPS policies which may indirectly limit when a ballot must be mailed cannot be constitutionally suspect.” Id. Defendants miss the point. Plaintiffs here are not alleging that Defendants are denying them a right to vote by mail. Rather, Plaintiffs are alleging
Against such injuries, Defendants assert that the policy changes are intended “to increase efficiency” and “minimize unnecessary costs.” Defs.’ Opp‘n, ECF No. 55 at 36. Defendants contend that these general “regulatory” interests survive rational basis review, id. (quoting Libertarian Party, 682 F.3d at 77), and that the Court may not find such interests are irrational because it “disagrees with the policy choice,” id. (citing FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 313-14 (1993)). Plaintiffs, on the other hand, dispute that Defendants’ justifications are sufficient to justify the burden imposed on voters. Plaintiffs argue that the USPS policy changes were in fact inefficient and increased unnecessary costs. Pls.’ Reply, ECF No. 57 at 22-23. Furthermore, Plaintiffs contend that “USPS has no constitutional mandate to cut costs” and that “[v]iolating an important constitutional right in order to
Defendants are correct that “a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Beach Commc‘ns, Inc., 508 U.S. at 313. However, the Court finds that the bar is higher here. Given the severity of Plaintiffs’ harms, the Court must instead determine whether Plaintiffs’ injuries are outweighed by Defendants’ justifications under at least an intermediate level of scrutiny, if not strict scrutiny. The Court finds that Defendants do not meet either.
The Court respects that the federal government, and USPS in particular, have legitimate interests in maintaining efficient programs and in saving money; however, these interests do not justify the resulting harms Plaintiffs face. As stated above, the burden the USPS policy changes place on Plaintiffs’ constitutional right to vote and have their vote counted is significant. At risk is disenfranchisement in the November election of potentially hundreds of thousands of individuals. These harms justify a high level of scrutiny, yet Defendants only generally assert that “USPS did renew its focus on
Accordingly, the Court finds that Plaintiffs are likely to succeed on their constitutional claim.
B. Plaintiffs Face Irreparable Harm
“In this Circuit, a litigant seeking a preliminary injunction must satisfy ‘a high standard’ for irreparable injury.” ConverDyn, 68 F. Supp. 3d at 46 (quoting Chaplaincy of Full Gospel Churches, 454 F.3d at 297).
Plaintiffs argue that, because the USPS policy changes infringe upon Plaintiffs’ constitutional right to vote, including in the November 2020 election, that alone is sufficient to show irreparable injury for the purposes of seeking equitable relief. Pls.’ Mot., ECF No. 15 at 25. Plaintiffs further argue that President Trump has “incentivized” voters to “remain away from the polls” in the November 2020 election by “making statements suggesting that mail-in voting is rife with fraud.” Id. at 25-26 (quoting Raysor v. DeSantis, No. 19A1071, 2020 WL 4006868, at *3 (U.S. July 16, 2020) (Sotomayor, J., dissenting)). Defendants, in opposition, contend that
The Court finds that Plaintiffs have sufficiently shown they will likely suffer irreparable harm absent a preliminary injunction. At this juncture, Plaintiffs need only demonstrate the likelihood of an increased risk of injury. Winter, 555 U.S. at 22 (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.“). And, as described above, Plaintiffs have provided evidence showing that, due to delays in the delivery of mail, there is a substantial risk that Plaintiffs will suffer an undue burden on their constitutional right to vote. See Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (“A restriction on the fundamental right to vote . . . constitutes irreparable injury.“); Cardona v. Oakland Unified Sch. Dist., Cal., 785 F. Supp. 837, 840 (N.D. Cal. 1992) (explaining abridgement “or dilution of a right so fundamental as the right to vote constitutes irreparable
The Court finds that the Plaintiffs have sufficiently shown they will likely suffer irreparable harm absent a preliminary injunction due to the restriction on the fundamental right to vote.
The balance-of-equities factor directs the Court to “balance the competing claims of injury and . . . consider the effect on each party of the granting or withholding of the requested relief.” ConverDyn, 68 F. Supp. 3d at 52 (quoting Winter, 555 U.S. at 24). “When the issuance of a preliminary injunction, while preventing harm to one party, causes injury to the other, this factor does not weigh in favor of granting preliminary injunctive relief.” Id.; see also Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast, the balance of equities may favor a preliminary injunction that serves only “to preserve the relative positions of the parties until a trial on the merits can be held.” Rufer v. FEC, 64 F. Supp. 3d 195, 206 (D.D.C. 2014) (CRC) (quoting Camenisch, 451 U.S. at 395). “The purpose of . . . interim relief is not to conclusively determine the rights of the parties, Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981), but to balance the equities as the litigation moves forward. In awarding a preliminary injunction a court must also ‘conside[r] . . . the overall public interest,’ Winter, [555 U.S.] at 26.” Trump v. Int‘l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (second alteration in original).
Plaintiffs contend that the balance of the equities and the
Here, the balance of the equities and the public interest favor an injunction. “By definition, ‘[t]he public interest . . . favors permitting as many qualified voters to vote as possible.” League of Women Voters of N.C., 769 F.3d at 247-48 (quoting Husted, 697 F.3d at 437). It is also clearly in the public interest to require that USPS implement policies that do not infringe upon constitutional rights. Newby, 838 F.3d at 12 (“There is generally no public interest in the perpetuation of unlawful agency action.“).
Plaintiffs’ motion for preliminary injunction requests the following relief:
(1) return postal operations and restore postal service to that in place on January 1, 2020; (2) replace or restore the removed the high-speed sorting machines and mailboxes that have been taken out of service and put them back into operation; (3) restore overtime pay and lift the hiring freeze so that USPS can hire additional employees when and where necessary to ensure the timely processing and delivery of mail-in ballots; (4) make all late mail deliveries instead of letting mail be delayed or go undelivered; (5) restore seasoned employees to their former positions, including the employees who were reassigned or displaced in the recent USPS reorganization; and (6) refrain from any and all other conduct that is intended to interfere and/or interferes with Plaintiffs’ fundamental right to vote in United States elections, including but not limited to the 2020 presidential election.
Pls.’ Appl. Prelim. Inj., ECF No. 14. To the extent the Court deems that certain aspects of the proposed preliminary injunction are inappropriate, the Court has the authority to adjust the requested relief as it deems fit. See Richmond Tenants Org. v. Kemp, 956 F.2d 1300, 1308 (4th Cir. 1992) (“It is well established . . . that a federal district court has wide discretion to fashion appropriate injunctive relief . . . .“). Although Plaintiffs have alleged that they are at risk of potential disenfranchisement in the November election due to the entirety of the June and July USPS Postal Policy Changes, the
The Court shall grant Plaintiffs’ request to “restore overtime pay” and to “make all late mail deliveries instead of letting mail be delayed or go undelivered.” As described above, the Court finds that Plaintiffs have established that, without a preliminary injunction, Plaintiffs are likely to suffer harms based upon this specific conduct.
However, the Court declines to issue a preliminary injunction to “return postal service to that in place on January 1, 2020.” Plaintiffs have alleged that USPS policy changes implemented in June and July 2020 have led to significant delays in the on-time delivery of mail, and the Court therefore sees no reason to order USPS to return its operations to the status quo a full six months prior to those changes. In addition, the Court finds that Plaintiffs have submitted little to no evidence connecting the removal of high-speed sorting machines and mailboxes to any resulting delays in mail service. Plaintiffs also have not provided sufficient evidence to warrant a Court order regarding their request to “restore seasoned employees to their former positions” and “lift the hiring freeze.” Finally, the Court denies Plaintiffs’ request with regard to Defendants “refrain[ing] from any and all other conduct that is intended to interfere and/or interferes with Plaintiffs’ fundamental right
The Court also finds it inappropriate to appoint a special master to supervise implementation of this Court‘s Order. While Plaintiffs cite to National Organization for Reform of Marijuana Laws v. Mullen, 112 F.R.D. 120 (N.D. Cal. 1986) [hereinafter “NORML“], in support of their position, the case is readily distinguishable. In NORML, the court had already issued a preliminary injunction, and the plaintiffs had subsequently alleged “numerous instances of violations” of that injunction. 112 F.R.D. at 121. The court found that because “[s]uch evidence of noncompliance with an injunction that first issued nearly a year earlier portends continuing violations, especially when viewed in light of the fast-paced and wide-ranging character of CAMP surveillance and raid activities, the difficult legal issues involved, and the numerous affirmative measures that the Court has ordered defendants to undertake” the “circumstances constitute an ‘exceptional condition’ and call for the appointment of a Special Master.” Id. Here, in contrast, there
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the Plaintiffs’ motion for a preliminary injunction. Any request to stay this decision pending appeal will be denied for substantially the same reasons as those articulated in this Opinion. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
October 8, 2020