Richardson v. Trump

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TERESA RICHARDSON; CHRISTOPHER
CARROLL; GINA ARFI; and AIDA
ZYGAS,

Plaintiffs,
Civ. Action No. 20-2262 (EGS)
v.

DONALD J. TRUMP, in his official
capacity as President of the
United States; LOUIS DEJOY, in
his official capacity as
Postmaster General of the
United States; and UNITED
STATES POSTAL SERVICE,

Defendants.

MEMORANDUM OPINION

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
vires agency action. Am. Compl., ECF No. 49. 1 Plaintiffs seek a

preliminary injunction with regard to each of their claims.

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

1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
in approximately 80 million mail-in ballots being submitted for

the November election. See id.

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.

2 Because the USPS PowerPoint is cited and quoted within the
Amended Complaint, ECF No. 49, the Court deems the document
incorporated by reference in the complaint. See Boster v.
Reliance Standard Life Ins., 959 F. Supp. 2d 9, 29 (D.D.C. 2013)
(ABJ).
3
 Second, on June 17, 2020, the USPS announced that it would

be removing high-speed sorting machines nationwide over the

course of several months. Am. Compl., ECF No. 49 ¶¶ 50-51

(citing Letter from Rickey R. Dean, Manager of Contract Admin.,

Am. Postal Workers Union, to Mark Diamondstein, Pres., Am.

Postal Workers Union (June 17, 2020), https://www.21cpw.com/wp-

content/uploads/2020/06/mail-processing-equipment-reduction_6-

17-2020.pdf 3); see also Ex. A to Reply Further Supp. Pls.’ Mot.

Prelim. Inj. (“Pls.’ Reply”), ECF No. 57-2. Defendants state

that the further removal of equipment has been suspended until

after the November 2020 election. Defs.’ Opp’n, ECF No. 55 at

23-24.

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-

costs 4). The USPS knew that prohibiting these trips would result

3 The Court considers this document as incorporated by reference
in the Amended Complaint. See supra n.2.
4 The Court takes judicial notice of the existence of the news

article. See Washington Post v. Robinson, 935 F.2d 282, 291
4
in delayed mail delivery: “[One] aspect of these changes that

may be difficult for employees is that—temporarily—we may see

mail left behind or mail on the workroom floor or docks (in

P&DCs) . . . .” Id. ¶ 53. By August 13, 2020, the USPS had

reduced the number of extra trips by 71 percent. Pls.’ Reply,

ECF No. 57 at 8 (citing Path Forward: PMG Addresses

Restructuring, USPS LINK (Aug. 13, 2020),

https://link.usps.com/2020/08/13/path-forward-2 5). Defendants

have clarified that late or extra trips are not “banned”;

however, they acknowledge that they continue “at a reduced

level.” Cintron Decl., ECF No. 55-3 ¶ 4. On September 21, 2020,

USPS also issued “Operational Instructions” providing that

“transportation, in the form of late or extra trips that are

reasonably necessary to complete timely mail delivery, is not to

be unreasonably restricted or prohibited. Managers are

authorized to use their best business judgment to meet our

service commitments.” See Ex. A to Notice Suppl. Material, ECF

No. 62-1 at 4.

(D.C. Cir. 1991) (“[A] court may take judicial notice of the
existence of newspaper articles in the Washington, D.C., area
that publicized” certain facts); Agee v. Muskie, 629 F.2d 80, 81
n.1, 90 (D.C. Cir. 1980) (taking judicial notice of facts
generally known as a result of newspaper articles).
5 The Court takes judicial notice of this document. See Cannon v.

District of Columbia, 717 F.3d 200, 205 n.2 (D.C. Cir. 2013)
(taking judicial notice of document posted on the District of
Columbia’s Retirement Board website).
5
 Fourth, on July 16, 2020, the USPS announced another

“initiative” that prohibited mail carriers in certain cities

from spending time in the morning sorting mail so they could

“leave for the street earlier.” Mem. Points Authorities Supp.

Pls.’ Appl. Prelim. Inj. (“Pls.’ Mot.”), ECF No. 15 at 22. The

National Association of Letter Carriers thereafter expressed

concern that “USPS chose to test [the initiative] unilaterally”

without their participation and because it did not seem to

“conform” with specific USPS handbook provisions regarding

certain types of mail. See Am. Compl., ECF No. 49 ¶¶ 54-55

(citing USPS Announces New ESAS Delivery Initiative Test, Nat’l

Ass’n of Letter Carriers (July 21, 2020),

https://www.nalc.org/news/nalc-updates/usps-announces-new-esas-

delivery-initiative-test 6). A subsequent USPS internal memo

clarified that the initiative meant that “[c]ity carriers will

not sort any mail during the morning operation,” but will

instead sort delivery in the afternoon “[u]pon return from

street delivery.” Id. ¶ 56 (citing Memorandum from USPS (July

2020), http://www.nalc3825.com/SUT.ESAS.July.2020.pdf 7).

Defendants state that this program has been “suspended at the

Postmaster General’s Direction.” Defs.’ Opp’n, ECF No. 55 at 28.

6 The Court considers this document as incorporated by reference
in the Amended Complaint. See supra n.2.
7 The Court considers this document as incorporated by reference
in the Amended Complaint. See supra n.2.
6
 Fifth, on August 7, 2020, Mr. DeJoy “released a

reorganization memo reflecting that twenty-three postal

executives, including several with decades of experience, were

reassigned or displaced.” Am. Compl., ECF No. 49 ¶ 59 (citing

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-investigationdejoy 8). In addition, USPS announced it had

implemented a “management hiring freeze and will be requesting

future Voluntary Early Retirement Authority from the Office of

Personnel Management for employees not represented by a

collective bargaining agreement.” Id. ¶ 60 (citing Press

Release, Postmaster General Louis DeJoy Modifies Organizational

Structure to Support USPS Mission (Aug. 7, 2020),

https://about.usps.com/newsroom/national-releases/2020/0807-pmg-

modifiesorganizational-structure.htm 9). Defendants have stated

that “[f]or a period of time beginning in August 2020, there has

been a management hiring freeze for all non-bargaining unit

8 The Court takes judicial notice of the existence of the news
article. See supra n.4.
9 The Court takes judicial notice of the USPS press release

because it is a federal agency document available from a
reliable source. See Democracy Forward Found. v. White House
Off. of Am. Innovation, 356 F. Supp. 3d 61, 68 n.4 (D.D.C. 2019)
(CKK).
7
employees. However, that hiring freeze has had no impact on

craft employees. Indeed, [USPS] has hired thousands of new

employees to help address staff shortages caused by the

pandemic.” Curtis. Decl., ECF No. 55-1 ¶ 25.

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.

10USPS defines “Election Mail” as “any item mailed to or from
authorized election officials that enables citizens to
participate in the voting process. This includes ballots, voter
registration forms, ballot applications, polling place
notifications, and similar materials. This mail qualifies as
Election Mail both when it is sent to voters from election
officials at the state and local levels and when it is returned
by voters to those officials.” Glass Decl., ECF No. 55-2 ¶ 3.
8
 3. USPS Postal Policy Changes Have Led To Nationwide
Delays And Continue To Have A Nationwide Impact

“[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

11The Court takes judicial notice of the Senate report. See
Connecticut v. U.S. Dep’t of the Interior, 344 F. Supp. 3d 279,
313 n.30 (D.D.C. 2018) (RC).
9
acknowledged that “this transformative initiative has had

unintended consequences that impacted our overall service

levels.” Path Forward: PMG Addresses Restructuring, USPS LINK

(Aug. 13, 2020), https://link.usps.com/2020/08/13/path-forward-

2.

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.htm 12). 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

12The Court takes judicial notice of the USPS press release
because it is a federal agency document available from a
reliable source. See supra n.9.
10
/newsroom/national-releases/2020/0818-postmaster-general-louis-

dejoy-statement.htm.

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-dejoy 13); 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

13The Court takes judicial notice of the existence of the news
article. See supra n.4.
11
them and then, delivers their executed ballots to election

officials in time to be counted.” See Am. Compl., ECF No. 49 ¶

10. Each of the Plaintiffs allege that they applied for, but

never received, an absentee or mail-in ballot during the 2020

primary elections due to the “several steps calculated to slow

down – and to undermine – the [USPS’s] ability to deliver the

mail, all in the name of cost-cutting but at the expense of the

right of citizens to vote.” Am. Compl., ECF No. 49 ¶¶ 10-11, 16.

Plaintiffs allege that these delays will continue into November,

leaving them “with the choice of compromising their right to

vote by not voting at all or risking their health.” Id. ¶¶ 19,

176.

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.

12
Richardson applied for an absentee ballot on or around April 24,

2020, but she never received the ballot. Id. ¶¶ 10-12. She

decided to vote in person on July 14, 2020. Id. In Texas,

applications to vote by mail must be received 11 days before

Election Day; all ballots submitted by mail must be postmarked

by Election Day and be received by the day after Election Day.

See FAQ, Off. of the Tex. Sec’y of State (last visited Oct. 8,

2020), https://www.votetexas.gov/faq/index.html.

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

13
not to vote because, as she lives with her 85-year-old

grandmother, she was concerned about exposing herself and her

grandmother to COVID-19. Id. ¶ 5. In New York, 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 7 days after Election Day. See Absentee

Voting, N.Y. State Bd. of Elections (last visited Oct. 8, 2020),

https://www.elections.ny.gov/votingabsentee.html.

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/abs

entee_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

14
filed a motion for preliminary injunction requesting that the

Court direct Defendants to:

(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.

14Although Plaintiffs filed their amended complaint after filing
their motion for preliminary injunction and before Defendants
filed their opposition, the Court finds it appropriate to refer
to the factual allegations in the amended complaint. See
Takiguchi v. MRI Int’l, Inc., 611 F. App’x 919, 921 (9th Cir.
2015) (dismissing the argument that the “district court
15
Compl., ECF No. 49. Defendants filed their opposition to

Plaintiffs’ motion for preliminary injunction on September 15,

2020. Defs.’ Opp’n, ECF No. 55. Plaintiffs filed their reply

brief on September 20, 2020. Pls.’ Reply, ECF No. 57. The motion

is ripe for the Court’s consideration.

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

improperly considered evidence that the plaintiffs submitted
with their preliminary injunction reply brief and allegations
pleaded for the first time in the Third Amended Complaint, which
was filed after all of the preliminary injunction briefing,”
because “even if it were error to do so, it would be harmless,
see United States v. Nutri–cology, Inc., 982 F.2d 394, 398 (9th
Cir. 1992), because the mere allegations of a complaint will
never suffice to establish the prerequisites for obtaining a
preliminary injunction, see Winter v. NRDC, Inc., 555 U.S. 7,
20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)”); Vantage Mobility
Int’l LLC v. Kersey Mobility LLC, No. 19-cv-04684, 2020 WL
411188, at *1 (D. Ariz. Jan. 24, 2020) (“Although VMI filed the
First Amended Complaint (‘FAC’) after the Preliminary
Injunction Application, the Court will resolve the Application
by considering the FAC as the operative pleading . . . .”).
16
merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). A

preliminary injunction is an “extraordinary remedy that may only

be awarded upon a clear showing that the plaintiff is entitled

to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008) (citation omitted). “The purpose of a

preliminary injunction is merely to preserve the relative

positions of the parties until a trial on the merits can be

held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). In

this Circuit, the four factors have typically been evaluated on

a “sliding scale,” such that if “the movant makes an unusually

strong showing on one of the factors, then it does not

necessarily have to make as strong a showing on another factor.”

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92

(D.C. Cir. 2009).

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

17
encountered a post-Winter case where a preliminary injunction

motion survived the less rigorous sliding-scale analysis.”

ConverDyn v. Moniz, 68 F. Supp. 3d 34, 46 n.2 (D.D.C. 2014).

III. Analysis

A. Plaintiffs Are Likely To Succeed On The Merits Of Their
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

15Plaintiffs bring their equal protection claim under the
Fourteenth Amendment. Am. Compl., ECF No. 49 at 49. Because
Defendants are subject to the Fifth Amendment to the United
States Constitution but not to the Fourteenth, the Court
construes the complaint as one bringing a claim under the Fifth
Amendment.
18
the injury and the conduct complained of,’ and (3) a

‘likel[ihood]’ that the injury ‘will be redressed by a favorable

decision.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,

2341 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

560-61 (1992)). “Standing to seek . . . forward-looking

injunctive relief requires [Plaintiff] to show that it is

suffering an ongoing injury or faces an immediate threat of

injury. For a future injury, that means submitting evidence

showing that there is a substantial risk that the harm will

recur.” Narragansett Indian Tribal Historic Pres. Off. v. FERC,

949 F.3d 8, 13 (D.C. Cir. 2020) (internal quotation marks,

citations, and alterations in original omitted).

“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

19
failed to receive their absentee ballots for the primary

elections does nothing to establish a real and immediate threat

that they will again fail to receive their absentee ballots for

the November 2020 general election,” id. (alterations and

quotation marks omitted) (quoting City of Los Angeles v. Lyons,

461 U.S. 95, 105 (1983)). Defendants contend that “Plaintiffs

have put forth no evidence (or allegation) supporting

Plaintiffs’ inference that they failed to receive their absentee

ballots for the primary elections due to any purported recent

changes to USPS policies.” Defs.’ Opp’n, ECF No. 55 at 31.

Because Plaintiffs cannot rule out “several alternative

explanations” for why Plaintiffs never received their absentee

ballots in time for the primary elections, Defendants argue that

this “undermines” Plaintiffs’ future injury allegation and

theory of redressability. Id.

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

20
case would be disenfranchisement in the November 2020 election,

“as the concrete and particularized injury and then to determine

whether the increased risk of such harm makes injury to an

individual citizen sufficiently ‘imminent’ for standing

purposes.” Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C.

Cir. 2017) (quoting Food & Water Watch, Inc. v. Vilsack, 808

F.3d 905, 913 (D.C. Cir. 2015)). Here, Plaintiffs provided

evidence that changes in USPS policy caused and will continue to

cause delays in the delivery of mail. See Grimmer Decl., ECF No.

57-4 ¶ 10 (decrease in the number of extra or late trips will

delay the delivery of letters); Tr., Jones v. U.S. Postal Serv.,

No. 20-cv-6516 (S.D.N.Y. Sept. 16, 2020), Ex. D to Pls.’ Reply,

ECF No. 57-5 at 24-25 (mail processing clerk at the San Antonio

Main Post Office testified under oath that the plant was

experiencing a “two to three day[]” delay and expected the delay

to continue into November because (1) “they’re shifting people

around into positions of no expertise”; (2) “they’re hiring

brand new employees with no official training to know how to

expedite the mail properly and running the right sort programs”;

and (3) “they’re cutting back on overtime”).

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

21
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 changes.” (quoting Senate Report at 3));

Senate Report at 3 (finding that “[s]ome parts of the country

saw on-time delivery drop by 15-20 percentage points in the

weeks following Mr. DeJoy’s July 2020 changes”). In addition,

USPS’s own data shows declines in on-time delivery of First-

Class Mail continuing into August. Grimmer Decl., ECF No. 57-4

at 24-25. The Court thus finds that Plaintiffs have shown they

face a “‘substantial risk’ of future injury,” Attias, 865 F.3d

at 627, that is “fairly traceable” to the USPS policy changes,

Lujan, 504 U.S. at 560.

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

22
changes continue to have nationwide effects on the timely

delivery of mail. See Senate Report at 3 (finding that

nationwide during the second week of August, “85 million more

deliveries were late in a single week compared to what the late

deliveries would have been that week under on-time delivery

rates before the changes”); Grimmer Decl., ECF No. 57-4 at 24-

25.

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

23
cite in favor of applying strict scrutiny are inapplicable

because the cases are factually distinguishable or only concern

state election laws that directly regulate the electoral

process. Id. But even if the Court considers this case analogous

to the line of cases involving “election laws,” Defendants

contend that the Court would still apply the rational basis test

under McDonald v. Board of Election Commissioners of Chicago,

394 U.S. 802 (1969).

In McDonald, the Supreme Court held that an Illinois

statute that denied certain inmates mail-in ballots did not

impose an unconstitutional burden on their right to vote. Id. at

807. Rather, the statute only restricted their asserted right to

receive an absentee ballot, and they were therefore not

“absolutely prohibited from voting by the State.” Id. at 808 &

n.7. The Supreme Court noted that “the record is barren of any

indication that the State might not, for instance, possibly

furnish the jails with special polling booths . . . or provide

guarded transportation to the polls.” Id. at 808 n.6. The Court

further noted that a more rigid standard is proper only when the

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

24
claiming that USPS policies may deprive them of the ability to

cast votes through mail-in ballots” and Plaintiffs’ “position is

not materially different from the county jail inmates in

McDonald who were physically restricted from the polls.” Defs.’

Opp’n, ECF No. 55 at 34-35.

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

25
avenues to vote). Here, however, the Court concludes that in-

person voting in the midst of the ongoing COVID-19 pandemic is

more than a mere “trivial inconvenience.” Because COVID-19

spreads mainly from person-to-person, see Frequently Asked

Questions, Centers for Disease Control and Prevention (last

updated Sept. 18, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/faq.html, all voters, including Plaintiffs, place

themselves at risk of contracting a potentially terminal

infection should they choose to vote in person as a result of

failing to receive their mail-in ballots in time. In such

circumstances, which were absent in McDonald, the Court finds

there is a burden on individuals’ ability to effectuate their

right to vote. Accordingly, McDonald’s rational basis test is

inappropriate.

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

26
original) (quoting Burdick, 504 U.S. at 433-34). Instead, courts

“must first consider the character and magnitude of the asserted

injury” to the plaintiffs’ right to vote against “the precise

interests put forward by the [government] as justifications for

the burden imposed[,]” including “the legitimacy and strength of

each of those interests” and “the extent to which those

interests make it necessary to burden the plaintiff’s rights.”

Anderson, 460 U.S. at 789. The level of scrutiny a court should

apply depends on the burden. When a voter’s rights are

“subjected to severe restrictions, the regulation must be

narrowly drawn to advance a state interest of compelling

importance.” Burdick, 504 U.S. at 434 (internal quotation marks

omitted). But when a voter’s rights are subjected only to

“reasonable, nondiscriminatory restrictions,” “the State’s

important regulatory interests are generally sufficient to

justify the restrictions.” Id. (internal quotation marks

omitted). If the restriction falls somewhere between those two

poles, then the court uses a flexible analysis, “where the more

severe the burden, the more compelling the [government’s]

interest must be.” Soltysik v. Padilla, 910 F.3d 438, 444 (9th

Cir. 2018).

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

27
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

28
“constitutional equivalent” of voting). In addition, courts

within this Circuit have relied upon the Anderson-Burdick

framework in analyzing “state” practices that allegedly burden

parties’ ability to cast their votes effectively under both the

Fifth Amendment and the Fourteenth Amendment. See, e.g.,

Libertarian Party, 682 F.3d at 74 (analyzing under Burdick

plaintiffs’ First and Fifth Amendment claims that the District,

“consistent with its regulations, never reported which

individuals were penciled in by voters choosing the write-in

option or how many votes any such individual accrued”); Turner

v. D.C. Bd. of Elections & Ethics, 77 F. Supp. 2d 25, 30, 33

(D.D.C. 1999) (RWR) (analyzing the constitutionality of

Congress’s 1998 District of Columbia Appropriations Act under

Burdick, among other standards, where the Act barred the D.C.

Board of Elections and Ethics from counting, releasing, and

certifying the results of a referendum). But see LaRouche v.

Fowler, 152 F.3d 974, 994 (D.C. Cir. 1998) (finding that the

Burdick test was inappropriate in a challenge against the

Democratic National Committee’s internal rules because the test

“was not designed for a case in which the First Amendment weighs

on both sides of the balance”).

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.

29
Libertarian Party, 682 F.3d at 73-74. The USPS directly affects

how Election Mail is handled and the speed with which Election

Mail arrives at its intended destination. While the USPS serves

many other functions, its role in handling ballots compels the

conclusion that USPS plays an active role in ensuring that

elections are conducted in a “fair and honest” manner, “rather

than chaos.” Burdick, 504 U.S. at 433 (citation omitted).

Furthermore, the Court is not convinced that the Anderson-

Burdick framework is limited to only state government and not

federal government actions. To so find would effectively

exclude, for example, any federal legislation impacting

elections in the District of Columbia pursuant to Congress’s

plenary power over the District. See U.S. Const. art. I § 8;

Palmore v. United States, 411 U.S. 389, 397 (1973). In addition,

this case does not present the same concerns as the D.C. Circuit

noted in LaRouche v. Fowler, 152 F.3d 974 (D.C. Cir. 1998),

where the court noted that applying Anderson-Burdick to the

rules of a non-state political party was inappropriate because

“the presence of First Amendment interests on both sides of the

equation makes inapplicable the test applied to electoral

restrictions where the First Amendment weighs on only one side.”

Id. at 995.

Although Defendants argue that failing to apply the

rational basis test to “non-election policies that may have some

30
indirect impact on the electoral process would produce odd

results,” including that “any deficiency in USPS service could

give rise to a constitutional voting rights claim,” Defs.’

Opp’n, ECF No. 55 at 33-34, the Court disagrees. The Court first

notes that Defendants’ claim that the policy changes implemented

by USPS only inadvertently or indirectly affect voting rights is

unpersuasive, particularly in a year in which the global COVID-

19 pandemic has forced many individuals to decide either to vote

by mail-in ballot or to not vote at all. See Jones v. U.S.

Postal Serv., No. 20-cv-6516, 2020 WL 5627002, at *14 (S.D.N.Y.

Sept. 21, 2020) (“The Court . . . disagrees with the Government

that this case does not implicate ‘the counting of votes.’ To

hold otherwise would be to ignore the facts at hand: a large

number of voters will be exercising their right to vote in the

November 2020 election by placing their ballots in the mail.

There is simply no reason for the Court to ignore the severe

reality that the country is in the middle of a deadly pandemic .

. . .”). For the upcoming election in November, it is estimated

that 80 million ballots will be submitted by mail. See Hersh

Decl., ECF No. 57-6 ¶ 14. The USPS policy thus directly impacts

and controls the ability of millions of citizens to have their

vote counted. Defendants themselves do not dispute their unique

role within the electoral process and their “longstanding

commitment to the timely delivery of Election Mail.” Defs.’

31
Opp’n, ECF No. 55 at 13. Even beyond delivering mail-in ballots,

USPS conducts “extensive outreach to state and local election

officials to support effective use of postal services to

facilitate the distribution and return of ballots”; gives an

“Election Mail Kit” to “approximately 11,500 state and local

election officials”; and has established a separate “bipartisan

Election Mail Committee to actively oversee USPS’s support of

Election Mail for the Election.” Id. at 12-13. This relationship

between the USPS and the electoral process suggests a strong

connection with the protection of voters’ rights. In addition, a

finding that the Anderson-Burdick framework applies does not

necessarily mean that “any deficiency in USPS service could give

rise to a constitutional voting rights claim.” Id. at 33. This

case does not allege that inadvertent, run-of-the-mill delays in

the postal service will infringe on their right to vote in the

November 2020 election. Instead, Plaintiffs are alleging that a

series of deliberate nationwide changes in postal service

procedures has caused a widespread slow-down in mail delivery

times, that the changes directly affect their ability to vote,

and that Defendants are aware that the policy changes affect the

timely delivery of mail, including Election Mail. See Pls.’

Reply, ECF No. 57 at 7-10.

Accordingly, the Court finds that the Anderson-Burdick

framework likely applies to Plaintiffs’ claim.

32
 3. Plaintiffs Have Shown That They Are Likely To
Succeed On The Merits Of Their Constitutional 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

33
significance under our constitutional structure.’” Burdick, 504

U.S. at 433 (quoting Ill. Bd. of Elections v. Socialist Workers

Party, 440 U.S. 173, 184 (1979)); see also Wesberry v. Sanders,

376 U.S. 1, 17 (1964) (“Other rights, even the most basic, are

illusory if the right to vote is undermined.”). “Obviously

included within the right to choose, secured by the

Constitution, is the right of qualified voters within a state to

cast their ballots and have them counted . . . .” United States

v. Classic, 313 U.S. 299, 315 (1941). The right to vote

“includes the right to have one’s vote counted on equal terms

with others,” League of Women Voters of Ohio v. Brunner, 548

F.3d 463, 476 (6th Cir. 2008), and applies to the “initial

allocation of the franchise” as well as to “the manner of its

exercise,” id. at 477 (quoting Bush v. Gore, 531 U.S. 98, 104-05

(2000)). Thus, where a policy creates a situation where “[a]

large number of ballots will be invalidated, and consequently,

not counted based on circumstances entirely out of the voters’

control,” the “burden [on the right to vote] is exceptionally

severe.” Gallagher v. N.Y. State Bd. of Elections, No. 20-cv-

5504, 2020 WL 4496849, at *16 (S.D.N.Y. Aug. 3, 2020); see also

Doe v. Walker, 746 F. Supp. 2d 667, 679-80 (D. Md. 2010) (“By

imposing a deadline which does not allow sufficient time for

absent uniformed services and overseas voters to receive, fill

out, and return their absentee ballots, the state imposes a

34
severe burden on absent uniformed services and overseas voters’

fundamental right to vote.”).

Here, the Court finds that the “character and magnitude” of

Plaintiffs’ asserted injury to the right to vote is significant.

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.

35
(last visited Oct. 8, 2020), https://www.votespa.com/Voting-in-

PA/Pages/Mail-and-Absentee-Ballot.aspx (explaining that, in

Pennsylvania, ballots postmarked by Election Day must be

received within three days after Election Day). Furthermore,

Plaintiffs simply cannot predict when their ballots will arrive

at their intended destination. When they will arrive, and

whether they will arrive in time to be counted, instead depends

upon “arbitrary factors, such as the particular USPS branch that

handles their ballots.” Jones, 2020 WL 5627002, at *16. Indeed,

USPS itself has acknowledged the threat of voter

disenfranchisement, warning in a July 29, 2020 letter to 46

states and the District of Columbia that USPS “cannot guarantee

that all ballots cast by mail for the 2020 presidential election

will arrive in time to be counted.” Am. Compl., ECF No. 49 ¶

181; see also Pls.’ Reply, ECF No. 57 at 10 (citing a July 29,

2020 letter from the USPS General Counsel). Thus, in a year in

which it is estimated that 80 million citizens are anticipated

to submit their votes via USPS, and between 3.7% and 9.3% of

those are estimated to mail ballots on the Saturday before

Election Day, the potential for voter disenfranchisement is

immense. See Hersh Decl., ECF No. 57-6 ¶¶ 14, 21-23.

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

36
at a high risk of developing a severe case of COVID-19 should

they become exposed to the virus at the polling place, who live

with individuals at a high risk of severe COVID-19 symptoms, and

who are not physically able to travel to the polls because they

are out of the state. See Pls.’ Mot., ECF No. 15 at 11-13. For

these individuals, mail-in voting is either the only choice or

the only safe choice they have for themselves and their loved

ones. Although Defendants point out that Plaintiffs may still

vote in person, the Court nonetheless finds that when nationwide

policy changes prevent an eligible voter from receiving the

mail-in ballot to which she is entitled, and as a result she

must choose between either disenfranchisement or risking

contracting a potentially terminal disease herself and infecting

at-risk persons with whom she lives, the right to vote is

heavily burdened.

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

37
that the Defendants’ policy changes undermine the integrity of

the November 2020 election by causing delays in the delivery of

election mail, risking disenfranchisement of thousands of

voters. Defendants, however, claim that the arbitrariness of the

delays actually cuts in their favor. Id. at 35-36. Defendants

point out that the USPS policy changes “do not expressly (or

necessarily) deny anyone a mail-in ballot” and that “[t]o the

extent there are mail delays, or certain mail goes undelivered,

there is no allegation that USPS has determined in advance the

class of persons to be affected.” Id. But whether there is

purposeful or intentional discrimination is irrelevant to the

Court’s analysis here. See Bush, 531 U.S. at 104–05 (finding an

Equal Protection Clause violation without making a finding of

discriminatory intent). “Having once granted the right to vote

on equal terms, the State may not, by later arbitrary and

disparate treatment, value one person’s vote over that of

another.” Id.; see also Reynolds v. Sims, 377 U.S. 533, 557

(1964) (noting that “arbitrary and capricious action” can

violate the Fourteenth Amendment (quoting Baker v. Carr, 369

U.S. 186, 226 (1962)). For example, if one of the Plaintiffs

submits her ballot, but it does not make it to her local

election office in time because of delays caused by the USPS

policy, “her ‘right to full and effective participation in the

political processes of h[er] [Nation]’s legislative bodies’ is

38
impaired relative to that of both in-state and out-of-state

voters with access to USPS branches functioning effectively.”

Jones, 2020 WL 5627002, at *21 (alteration in original) (quoting

Reynolds, 377 U.S. at 565); see also Brunner, 548 F.3d at 478

(stating that the allegation, among others, that “[p]rovisional

ballots were not distributed to appropriate voters, causing

voters to be denied the right to vote . . . . if true, could

support a troubling picture of a system so devoid of standards

and procedures as to violate” the Constitution).

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

39
achieve a goal not within its mandate . . . is obviously not

legitimate or rational prioritization.” Id. at 23.

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

40
compliance with pre-set schedules in order to increase

efficiency, and minimize unnecessary costs.” Defs.’ Opp’n, ECF

No. 55 at 36. Defendants’ reasons for administrative cost

savings are insufficient: as the Supreme Court has explained,

the “vindication of conceded constitutional rights cannot be

made dependent upon any theory that it is less expensive to deny

than to afford them.” Watson v. City of Memphis, 373 U.S. 526,

537 (1963). Furthermore, Defendants have failed to provide any

reasons regarding why implementation of the USPS policy changes

were necessary during a nationwide election season in the middle

of a pandemic, particularly in view of Defendants’ express

acknowledgement that they anticipated “mail left behind or mail

on the workroom floor or docks.” Mandatory Stand-Up Talk: All

Employees (July 10, 2020), https://federalnewsnetwork.com/wp-

content/uploads/2020/07/071020-stand-up-talk.pdf. 16 And despite

Defendants’ assertions to the contrary, as of the end of August,

USPS service scores remained lower that the pre-policy average.

See Grimmer Decl., ECF No. 57-4 at 24-25; Pls.’ Reply, ECF No.

57 at 9-10 (“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 changes.” (quoting

Senate Report at 3)).

16The Court takes judicial notice of the USPS document regarding
transportation changes. Fed. R. Evid. 201(b)(2).
41
 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). The movant must

demonstrate that it faces an injury that is “both certain and

great; it must be actual and not theoretical,” and of a nature

“of such imminence that there is a clear and present need for

equitable relief to prevent irreparable harm.” Wis. Gas Co. v.

FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and

emphasis omitted).

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

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Plaintiffs’ contention that USPS policies have denied them the

right to vote is “insufficient and too speculative” to establish

an irreparable injury. Defs.’ Opp’n, ECF No. 55 at 40. Moreover,

Defendants argue that Plaintiffs have not identified any actions

that may “incentivize” them not to vote. Id. Nor have Plaintiffs

established than any future harms are likely to recur given that

“USPS has taken a number of steps that have resulted in service

performance improving.” Id. at 41.

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

43
injury”). There is “no do-over and no redress” once the election

has passed. League of Women Voters of N.C. v. North Carolina,

769 F.3d 224, 247 (4th Cir. 2014). The Court further finds

Plaintiffs would face irreparable harm in being forced to make a

decision on how to vote before they have all of the information

they require. Cf. McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 346–47 (1995) (“In a republic where the people are

sovereign, the ability of the citizenry to make informed choices

among candidates for office is essential, for the identities of

those who are elected will inevitably shape the course that we

follow as a nation.”). Finally, regarding Defendants’ assertion

that Plaintiffs have failed to show the likelihood of delivery

delays, USPS data suggests that on-time delivery for First Class

Mail has not bounced back since the implementation of the policy

changes, and Defendants have provided no other information

suggesting that that will change prior to Election Day. See

Grimmer Decl., ECF No. 57-4 at 24-25; Pls.’ Reply, ECF No. 57 at

9-10.

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.

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 C. The Balance of Equities and Public Interest Favor an
Injunction

The balance-of-equities factor directs the Court to

“balance the competing claims of injury and . . . consider the

effect on each party of the granting or withholding of the

requested relief.” ConverDyn, 68 F. Supp. 3d at 52 (quoting

Winter, 555 U.S. at 24). “When the issuance of a preliminary

injunction, while preventing harm to one party, causes injury to

the other, this factor does not weigh in favor of granting

preliminary injunctive relief.” Id.; see also Serono Labs., Inc.

v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998). By contrast,

the balance of equities may favor a preliminary injunction that

serves only “to preserve the relative positions of the parties

until a trial on the merits can be held.” Rufer v. FEC, 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

45
public interest favor a preliminary injunction because it is in

the public interest to prevent constitutional violations and to

allow eligible citizens the ability to exercise their right to

vote. Pls.’ Mot., ECF No. 15 at 26-27. Defendants do not contest

the equities in Plaintiffs’ favor. Rather, Defendants argue that

the public interest and the balance of the equities disfavor

granting relief because (1) “USPS is currently undertaking

extensive efforts to facilitate the timely delivery of Election

Mail”; (2) “[t]here is no dispute that USPS has the capacity . .

. to handle the anticipated surge in Election Mail”; (3)

“Plaintiffs have an opportunity to avoid any harm by mailing in

their ballots without delay”; and (4) granting relief “could

require the Court to act as an overseer of the agency’s day-to-

day activities.” Defs.’ Opp’n, ECF No. 55 at 41-42.

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.”).

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 D. Request For Preliminary Injunction

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

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Court finds that Plaintiffs have provided supporting evidence

regarding only some of those policy changes.

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

48
to vote in United States elections, including but not limited to

the 2020 presidential election” as overly broad and lacking the

specificity required by Federal Rule of Civil Procedure 65. See

Fed. R. Civ. P. 65(d) (providing that “[e]very order granting an

injunction . . . must: (A) state the reasons why it issued; (B)

state its terms specifically; and (C) describe in reasonable

detail . . . the act or acts restrained or required”).

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. 1996) [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

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is no history of Defendants failing to comply with Court orders,

no difficult legal issues involved, and relatively few measures

for Defendants to take. Because reference to a master shall be

the exception and not the rule, Fed. R. Civ. P. 53(a), the Court

finds that implementation of its Order is not so complex as to

constitute such exceptional circumstances.

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

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