Concerns over the Postal Service’s ability to handle election mail manifested themselves again earlier this month in orders from two separate federal courts.  Courtesy of Mailer's Hub

Acting on appearances

Operational changes implemented last July by newly-appointed Postmaster General Louis DeJoy, the ensuing resistance of the postal labor unions, and the ongoing disruptions caused by the COVID pandemic, combined quickly to yield a precipitous decline in service. Regardless of the facts regarding DeJoy’s intentions, and aside from whether he did not seek or did not listen to the advice of more experienced executives, the timing of his orders was ill-advised. Set in the context of questions about DeJoy’s selection, his political support for the president, and the White House’s hostility toward both the USPS and vote-by-mail, suspicions quickly grew that DeJoy’s actions were designed to carry out administration plans to harm the Postal Service and disrupt balloting by mail. In due turn, administration

opponents in postal labor and in Congress seized on the opportunity to pillory DeJoy for his actions and, by proxy, propound their criticisms of the president.

 

Despite assurances by the PMG and even a kumbaya statement by him and labor leaders that the USPS was ready and able to handle election mail, the wildfire of conviction spread that DeJoy was trying to torpedo voting by mail and that ballots would be late or lost in November, confirming the president’s allegations about using the mail for elections.

 

Blocking

On August 18, a group of fourteen state attorneys general filed suit in the federal District Court for the Eastern District of Washington against the president, postmaster general, and the Postal Service. The 120-page “Complaint for Declaratory Judgment, Mandamus, and Injunctive Relief,” filed by the states of Colorado, Connecticut, Illinois, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin alleged that

“…Postmaster General Louis DeJoy has recently instituted

sweeping changes that undermine the Postal Service’s ability

to provide consistent and timely service. DeJoy has called

these changes ‘transformative’ and has acknowledged that

they have ‘impacted our overall service levels.’ DeJoy instituted

these ‘transformative’ changes following repeated

statements from President Trump evincing a partisan political

motive for making it harder to vote by mail … . The ‘transformative’

changes DeJoy has implemented are both procedurally

and substantively unlawful. …”

 

The litigants claimed “elimination” of overtime,” “instructing carriers to leave mail behind,” “decommissioning sorting machines,” “removing mailboxes,” and “reducing operating hours,” were politically motivated and done to inhibit voting by mail. In turn, they rested much of their case on the claim that the changes constituted “a change in the nature of postal services which will generally affect service on

a nationwide or substantially nationwide basis” and that, under 39 USC 3661, the Postal Service was obligated to seek an advisory opinion from the Postal Regulatory Commission

before implementing such changes. The requested relief included ordering the USPS to halt any of the announced changes or, absent that, a ruling by the court that what the USPS is alleged to be doing is beyond its authority (consistent with the argument that the changes require a prior advisory opinion by the PRC) followed by an injunction against implementation of the alleged

changes. The suit also asserted that the alleged changes are unconstitutional in that they will “interfere with the ability of residents of the Plaintiff States to timely receive and return voter

registration forms and ballots and have their votes counted… thus depriving qualified voters of equal protection under the law secured to them by the Fifth Amendment.”Shortly thereafter, a similar lawsuit was filed in the federal District Court for the Southern District of New York by the State of New York, joined by Hawaii, New Jersey, and the cities of New York and San Francisco, while a third suit was

Mailers Hub News 2 September 28, 2020 filed (against the USPS, DeJoy, and Board of Governors chairman Robert Duncan) by the State of Pennsylvania, joined by California, Delaware, Maine, Massachusetts, North Carolina, and the District of Columbia. Overall, eleven suits were filed.

 

Order one

On September 17, Judge Stanley Bastian in Yakima (WA) is-sued a nationwide preliminary injunction against the USPS. As reported by the Associated Press, the judge accepted the states’ assertions, finding that “The states have demonstrated the defendants are involved in a politically motivated attack on the efficiency of the Postal Service” and that the changes created “a substantial possibility many voters will be disenfranchised.”  The judge’s order directed the Postal Service to stop implementing the “leave behind” policy, to treat all election mail as First-Class Mail, to reinstall any mail processing machines needed to ensure the prompt handling of election mail, and to inform its employees about the requirements of his in-junction. During the hearing, the Justice Department attorney representing the USPS argued unsuccessfully that “There’s been a lot of confusion in the briefing and in the press about what the Postal Service has done. The states are accusing [the USPS] of making changes [it has] not in fact made.” The attorney also insisted that the states were required to bring their challenge not in court, but before the Postal Regulatory Commission, but the judge rejected that as well, saying there was no time for that with the election just seven weeks away. In response, the USPS said it was reviewing its legal options, and repeated its readiness to handle election mail. In an unusual comment, USPS Governor Lee Moak called the notion any changes were politically motivated “completely and ut-terly without merit.”

 

Order two

On September 21, Judge Victor Marrero in Manhattan issued an order similar to Bastian’s, strongly concurring with the plaintiffs’ allegations. As reported by the Associated Press, Marrero’s 87-page ruling was more specific than Bastian’s 13-page order, and he cited public statements, including from the president, to explain why he can’t trust government assurances that new policies hampering mail delivery had been fully suspended: “Substantial evidence indicates that the supposed rollback of the challenged practices is either unenforced and not yet fully implemented or possibly insincere. The controversy Plaintiffs raise remains very much alive.” Continuing, he found that the defendants “have not provided trusted assurance and comfort that citizens will be able to cast ballots with full confidence that their votes would be timely collected and counted.” Instead, he said, their actions have given “rise to management and operational confusion, to directives that tend to generate uncertainty as to who is in charge of policies that ultimately could affect the reliability of absentee ballots, thus potentially discouraging voting by mail. Conflicting, vague, and ambivalent managerial signals could also sow substantial doubt about whether the USPS is up to the task.”

The judge further cited “a stunning lack of uniformity and a high level of confusion at various points in the USPS hierarchy regarding the standards to be followed by USPS employees on the ground. The Court is left with little reason to believe that the USPS policy and operational picture will be any clearer for postal employees as the November election approaches.”

Following the judge’s instructions, the parties reached agreement on most points but the USPS balked on a blanket approval for overtime from October 26 through November 6, instead saying it would be allowed based on workload and, particularly, the need to move election mail.

As with the Washington order, the USPS again said it was reviewing the ruling and that “there should be no doubt ... that the Postal Service is ready and fully committed to handling expected increased volumes of Election Mail between now and the conclusion of the November 3rd election. Our number one priority is to deliver the nation’s Election Mail securely and in a timely fashion.”

 

Post mortem

After information about DeJoy’s July instructions leaked out – the USPS never has the foresight to get in front of a story – the PMG and others have sought to explain, with little success, that the PMG’s directives were interpreted more strictly and severely by subordinates than intended. Using this defense apparently backfired, notably in Judge Marrero's comments about “management and operational confusion.” For example, a “mandatory stand-up talk” to employees, whose origin was not explained, but was leaked to Motherboard, stated revised circumstances:

• “Overtime. Front-line supervisors and managers will continue to schedule work hours based on workload. Overtime is authorized and instructed to be used as necessary to fulfill our mission and expeditiously move Election Mail.

• “Hiring. The Postal Service has not implemented a total hiring freeze. EAS hiring was suspended August 7, because of the realignment of our reporting structure. This suspension does not im-pact hiring for craft positions. Craft positions will continue to be filled in accordance with collective bargaining agreements.

• “Retail Hours. The Postal Service will not reduce retail hours be-fore the November elections. Natural disasters, civil unrest, or lack of employee availability due to the coronavirus pandemic may necessitate temporary changes, but local managers are not permitted to reduce retail hours without review and approval by both Area and Headquarters management.

• “Collection Boxes. The Postal Service has suspended the removal of any collection boxes until after the 2020 elections. There may be temporary removal or covering of boxes due to extreme weather, national security incidents, or local events such as wild-fires or civil unrest. It is critical that any collection boxes dam-aged – for example, by hurricane or a car accident – be reported and replaced as soon as possible.

• “Late and Extra Trips. Late or extra trips have not been banned; they should not be restricted if they are reasonably necessary to complete timely mail delivery. Managers are authorized to use their best business judgment to meet service commitments. Focusing on the transportation schedule does not mean that mail should be left behind – it should not. Instead, processing and transportation schedules should be aligned to help reduce late deliveries and unnecessary costs.

• “Mail Processing. No mail processing facilities will be closed or consolidated, and no letter or flat sorting machines will be removed before the November elections. We have more than

Mailers Hub News 3 September 28, 2020 sufficient capacity to process current and anticipated mail volumes with our existing machine supply. Available machines will be returned to service if Headquarters or the Regional Vice President determine that doing so is necessary to fulfill our Election Mail service commitments.

• “Election Mail. We will continue to expedite Election Mail that is entered as Marketing Mail, as is our long-standing practice. Election Mail entered as Marketing Mail should be advanced ahead of all other Marketing Mail and processed expeditiously. To make this possible, please expand processing windows on letter and flat sorting equipment to ensure that all Election Mail received prior to the First-Class Mail Critical Entry Time is processed that same day.” As would be expected, union officials – not the Postal Service – added information about the apparent reversal of policy. Speaking to Seattle’s KUOW, a representative of the American Postal Workers Union in Tacoma declared

“... crosstown mail is being delivered in one day again, while a certified letter to Florida takes three days. Back in July, following

Trump administration efforts at reorganizing the mail service, certified letters were taking nine days to cross the country.” Meanwhile, an electronics technician said that three mail processing machines were being put back in service and that a fourth was to be reconnected soon. “There are no plans to return any of the other three machines at this time, as they were completely disassembled,” he said in an email to

KUOW, without providing the basis for his statement.

Next? If the USPS has been forced to retreat broadly from its plans to get overtime under control, enforce operating plans (in processing as well as transportation), and reduce its inventory of redundant equipment, it remains to be seen whether the situation really will change after the elections are over. Presumably, the legitimacy of improving efficiency, and actions to do so, will be as valid after the elections as before. Next time, however, if the July changes are restored, hopefully DeJoy will have learned about the politics and optics of his actions, and be sufficiently proactive in dealing with perceptions to avoid repeating the fiasco of the past ten weeks.