The case that insured mail-in ballots would be counted
Public Citizen is a small non-profit consumer group with 80 employees and a self-described goal to “resist corporate power.”
The U.S. Postal Service is one of the largest federal agencies, with more than 630,000 employees and a constitutional mandate to deliver mail nationwide. This year that mandate included delivering a record number of absentee or mail-in ballots. They are now estimated at about 60 million votes, likely determining the presidential election outcome.
The two organizations came nose to nose in a fierce pre-election court fight that will have a profound and lasting effect on the full and fair counting of all election ballots — an effect that started months before voting actually began and will last long after.
In a year when mail-in or absentee ballots are a large part of the 160 million votes cast in the election, the case Public Citizen and the NAACP’s Legal Defense Fund (LDF) brought against the Post Office has major implications for our voting future. It is an example of the power of citizen-based organizations to protect the vote.
It began in August when Allison Zieve, Public Citizen’s Director of Litigation, picked up on newsfeeds suggesting that absentee and mail-in ballots, which were being promoted by many states as a safe way to vote during the Corona virus pandemic, would be vulnerable to a new USPS delivery slowdown.
For months, President Trump had downplayed the seriousness of the pandemic, at the same time mounting a steady stream of attacks on the honesty and reliability of mail-in voting.
Trump took further action to make absentee balloting difficult. He appointed as Postmaster General, Louis DeJoy, a longtime Republican mega donor who had personally met at a Republican fundraiser at his home with the president, but had no experience running a large, government agency.
Shortly after his appointment on July 1, DeJoy issued a stunning reorganization order called “operational pivot” to “improve USPS efficiency.” With the November election fast approaching, DeJoy ordered all absentee and mail-in ballots cease receiving special treatment, including reducing overtime pay for extra deliveries and expedited handling.
The fast-spreading coronavirus coupled with the Post Office delivery cutbacks and the president’s repeated negative tweets about the dangers of absentee voting, seemed too coordinated to be an accident.
Zieve knew that minority voters would be disproportionally hurt by unreliable and slow delivery of absentee ballots. They are particularly vulnerable to the health dangers of the disease and consequently to fear of in-person voting.
Suing the USPS and DeJoy seemed essential to protect voting rights, especially of people who feared going to a polling place.
NAACP’s Legal Defense Fund, together with Public Citizen, prepared a complaint against the USPS and DeJoy which they filed Aug. 20, 2020 in the District of Columbia.
The case was not based on broad constitutional grounds (as other cases were), but on a seeming blunder by the Post Office in not giving prior notice to the public of the service changes. Such notice would have, under the Postal Act, given an opportunity for public comment on the service cuts.
The NAACP-Public Citizen case was referred to Judge Emmet G. Sullivan. Sullivan was first appointed to the bench by President Ronald Reagan and promoted to the District Court by President Bill Clinton. He has a reputation as a tough, no-nonsense jurist.
Public Citizen and NACCP asked for an immediate injunction barring any cutbacks in postal service before the election. Sullivan ruled for them on Oct. 10. He issued a sweeping order that required the USPS to rescind all of its pre-election changes.
The ruling was largely ignored by DeJoy and interpreted as mostly discretionary by USPS.
So the two public interest groups and other plaintiffs filed an “emergency” motion asking Judge Sullivan to further enforce his initial order. That too was granted, with the unprecedented requirement by the judge that senior USPS officials file daily written reports on mail deliveries and attend daily virtual hearings for two weeks during the period of the election. The judge demanded regular reports that USPS was “sweeping” all mail processing depots nationally, to ensure no mail ballots were left undelivered to election authorities.
The result of the Public Citizen/LDF teamwork is now history. An estimated 60 million mail-in and absentee ballots were cast and counted.
The fairness and accessibility of voting was protected by the availability of absentee and mail-in ballots to millions of American voters. That was the result, in part, of the unsung actions of a couple of determined public interest attorneys and one tough federal judge.
Michael Lemov is an attorney who served as Counsel for the House Commerce and Banking Committees. He is the author of “People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights”; and “Car Safety Wars: 100 Years of Technology, Politics and Death.”
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