City Bar Questions Lawfulness of Changes to U.S. Postal Service

The New York City Bar Association has issued a statement questioning “the lawfulness of recent actions taken by the newly-appointed Postmaster General (PG) Louis DeJoy, actions that appear to violate the laws governing the U.S. Postal Service and to potentially threaten the Constitutional right of millions of Americans to cast their votes in the forthcoming Presidential and other elections this November.”

The changes to the USPS that the City Bar cites “include personnel changes that have resulted in delays in mail delivery of up to a week; reduction of hours of operation of post offices; removal of mailboxes; deactivation and removal of letter sorting machines in critical hub locations; removal of trucks from service; and the removal and discarding of delivery bar code sorters of the type used for handling mail-in ballots. In addition, postal workers across the country report that they have been required to leave sorting facilities by specific times and to send trucks out at specific times, regardless of whether mail remains waiting for loading, reportedly resulting in mail being left in sorting facilities, in some cases for days or even weeks. Together, these changes have the potential, indeed the likelihood, of materially and adversely affecting postal service in large parts of the country.”

While PG DeJoy recently announced that he will suspend many of these changes until after the election, “credible reports call into question whether that commitment is being honored in practice,” the City Bar states. “Nor has the PG committed to ameliorate the damage caused by his prior actions, including the destruction of a large number of mail sorting machines that are critical to timely processing of envelopes, including mailed ballots.”

The City Bar’s statement maintains that the Postal Accountability and Enhancement Act (PAEA) of 2006 clearly obligates USPS to request an advisory opinion from the Postal Regulatory Commission (PRC) before making changes that would generally affect postal service on a substantially nationwide basis, something that has apparently not been done.

These events have occurred against the political backdrop of President Trump’s opposition to mail-in ballots, the statement points out, quoting the President saying, “[T]hey need that money in order to have the Post Office work so it can take all of these millions and millions of ballots…. But if they don’t get those two items, that means you can’t have universal mail-in voting because they’re not equipped to have it…. Now, if we don’t make a deal, that means they don’t get the money. That means they can’t have universal mail-in voting, they just can’t have it.”

The City Bar also cites and calls attention to several Constitutional challenges from various plaintiffs to the changes at the USPS, which assert that multiple Constitutional provisions protecting the right to vote and ensuring that one’s vote is counted have been violated, including “(1) Article I, section 2, clause 1, which provides that members of the United States House of Representatives are ‘chosen…by the People of the several States’; (2) Article IV, section 2, clause 1, which provides that ‘[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,’ and, therefore, the right to vote for national officers is a right and privilege of national citizenship that is protected by Article IV, section 2, clause 1; and (3) the Seventeenth Amendment which provides that United States Senators are ‘elected by the People of’ each State.’”

The statement also references two recent cases: Jones et al. v. USPS, et al, in which District Judge Victor Marrero of the U.S. District Court for the Southern District of New York granted Plaintiffs’ motion for a preliminary injunction requiring that the Postal Service take certain actions to ensure the timely delivery of their absentee ballots in the November election; and Washington v Trump in U.S. District Court in Eastern Washington, in which Judge Stanley Bastian issued an order temporarily enjoining the U.S. Postal Service and PG DeJoy from changing USPS policies or protocols ahead of November’s election as harmful to voters’ ability to cast ballots.

In conclusion, the City Bar states: “When viewed in light of the President’s public efforts to discredit mail-in voting, public confidence in our elections is eroded, damaging our democratic system.

• “We call upon the Senate to pass the bill, H.R. 8015, recently passed in the House of Representatives that would reverse the PG’s operational changes and provide significant assistance to help the USPS carry out its Constitutional and statutory functions.

• “We also call upon the USPSOIG to conduct its announced investigation into the USPS operational changes and any relevant conduct on the part of the PG with the greatest expedition and thoroughness and to inform Congress and the public appropriately of its findings.

• “If the USPSOIG finds unlawful action, appropriate disciplinary actions should be taken by the members of the USPS Board of Governors in the exercise of their own fiduciary duties, including removal of PG DeJoy from his position as PG and referral for investigation for possible criminal violations.”

The full statement can be read here: https://bit.ly/2S13xzG

About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org