Vote Forward v. Dejoy

• Court: District Court, District of Columbia
• Decided: September 28, 2020
• Docket: Civil Action No. 2020-2405
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VOTE FORWARD; AMY BOLAN; AARON CARREL; DANTE FLORES-DEMARCHI; PAUL HUNTER; SEBASTIAN IMMONEN; KATHRYN MONTGOMERY; SEAN MORRISON; INDERBIR SINGH DATTA; MARTHA THOMPSON; LINDA ROBERSON; GARY YOUNG; VOCES UNIDAS DE LAS MONTAÑAS; COLORADO ORGANIZATION FOR LATINA OPPORTUNITY AND REPRODUCTIVE RIGHTS; PADRES & JÓVENES UNIDOS;

Plaintiffs,

v. Civ. Action No. 20-2405 (EGS)

LOUIS DEJOY, in his official capacity as the Postmaster General; and the UNITED STATES POSTAL SERVICE,

Defendants.

MEMORANDUM OPINION

Plaintiffs—eleven voter-eligible individuals and four

organizations dedicated to seeking greater civic engagement in

the November 2020 election—bring this lawsuit against Defendants

Louis DeJoy (“Mr. DeJoy”), in his official capacity as

Postmaster General of the United States, and the United States

Postal Service (“USPS), alleging that a new USPS policy

implemented in July 2020 violates Plaintiffs’ constitutional

right to vote and constitutes ultra vires agency action. See Pls.’ Am. Compl., ECF No. 15. 1 Plaintiffs seek a preliminary

injunction with regard to their constitutional claim.

Upon consideration of the Plaintiffs’ motion, the response,

the reply thereto, the applicable law, and the entire record,

the Court GRANTS Plaintiffs’ motion.

I. Background

A. Factual Background

1. The COVID-19 Pandemic

Plaintiffs assert that the COVID-19 pandemic has increased

reliance on mail delivered by the USPS. Pls.’ Mem. Law Supp.

Mot. Prelim. Inj. (“Pls.’ Mot.”), ECF No. 16-1 at 7. According

to Plaintiffs, several states have adjusted their election

procedures to allow for all eligible voters to vote by mail-in

ballot in the November 2020 election: 43 states and the

District of Columbia will permit all eligible voters to vote by

mail, and 28 states will require that the ballots be received,

rather than postmarked, by Election Day. Id. at 7-8 (citing news

reports). In total, the adjustments made by many states in

response to the COVID-19 pandemic will result in approximately

83% of all eligible voters having the opportunity to vote in

this method. Id. (citing news reports). It is anticipated that

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 at least 80 million mail-in ballots will be submitted for the

November election. See Hersh Decl., ECF No. 16-15 ¶ 14.

2. USPS Policy Changes

On July 10, 2020, USPS announced an “operational pivot” to

make “immediate, lasting, and impactful changes in our

operations and culture.” Ex. 4 to Pls.’ Mot., ECF No. 16-6 at 2.

As most relevant here, the document stated that (1) “[a]ll trips

will depart on time (Network, Plant and Delivery); late trips

are no longer authorized or accepted”; (2) “[e]xtra trips are no

longer authorized or accepted”; (3) “[c]arriers must begin on

time, leave for the street on time, and return on time”; and (4)

“no additional transportation will be authorized to dispatch

mail to the Plant after the intended dispatch” (collectively,

the “Late/Extra Trips Policy”). Id. The USPS knew that

prohibiting these trips would result 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 in the

workroom floor or docks . . . , which is not typical.” Id.

However, the document noted expectations that “operations will

begin to run more efficiently and that delayed mail volumes will

soon shrink significantly.” Id. at 3. These changes were also

confirmed in a USPS PowerPoint presentation, which explained

that if “the [USPS processing] plants run late they will keep

the mail for the next day. If [delivery units] get mail late and

3 your carriers are gone and you cannot get the mail out without

[overtime] it will remain for the next day.” Ex. 5, ECF No. 16-7

at 5-6. Since the USPS policy took effect, USPS has eliminated

an average of 32,900 extra or late trips per week, Grimmer

Decl., ECF No. 16-11 ¶¶ 10-11, or a 75% drop in the number of

both types of trips, Pls.’ Reply, ECF No. 24 at 11.

Due to the policy changes expressly prohibiting late trips

and extra trips, the ability to deliver mail in an efficient

manner can be inhibited at three different points in the

delivery chain. First, mail handlers deliver mail from the local

post office to a USPS processing plant; if the mail arrives at

the post office after the handler has already left for the

processing plant, the mail may wait at the post office until the

next day. Pls.’ Mot., ECF No. 16-1 at 12-13. Second, once the

mail arrives at the processing plant, if it is not processed

prior to the mail handler’s scheduled departure time from the

plant to the relevant delivery unit, it again may remain at the

plant until the next day. Id. at 13. Third, once the letter has

made it to the delivery unit, it still must arrive prior to the

mail carrier’s trip to the final intended destination; if it

arrives after the mail carrier has left for her delivery route,

the letter may be delayed one day. Id. at 13. Thus, the USPS

policy changes may potentially delay certain mail items for up

to three days more than typical prior to the policy changes.

4 The USPS policy changes stand in contrast with prior

practices that allowed postal workers to conduct late trips or

extra trips “to delay or supplement their scheduled deliveries

to ensure that they have collected and transported all

outstanding mail at any given facility.” Pls.’ Mot., ECF No. 16-

1 at 10 (citing Ex. 3 to Pls.’ Mot., ECF No. 16-5).

Defendants have clarified that late or extra trips are not

“banned”; however, they acknowledge that they continue “at a

reduced level.” Suppl. Cintron Decl., ECF No. 21-3 ¶ 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. 1 to Notice Suppl.

Material, ECF No. 30-1 at 4.

3. USPS Postal Policy Changes Have Led To Nationwide Delays And Continue To Have A Nationwide Impact

USPS records indicate that nationally, on-time delivery of

First-Class Mail began to decline following implementation of

the USPS policy changes. On-time services scores are the

“measure of the frequency with which USPS is able to deliver

mail in the timeframe defined by its service standards.” Pls.’

Reply, ECF No. 24 at 11; see also Suppl. Grimmer Decl., ECF No.

5 24-2 ¶¶ 5, 7. During the pre-policy period, from January 4, 2020

to July 4, 2020, the average USPS service score was 91.6%

nationally; however, the August 29, 2020 service score was 3.56

percentage points lower than the pre-policy average. Suppl.

Grimmer Decl., ECF No. 24-2 ¶ 5; see also id. (noting that the

August 29 service score was 2.96 percentage points lower than

the three-week period prior to the USPS policy implementation).

The overall decline in service scores is consistent across all

but one region in the United States, though the service scores

vary. For example, while the USPS “Capital Metro” area has a

service score that has declined 6.3 percentage points since

implementation of the USPS policy, the service score in the

“Southern” area has declined by only approximately two

percentage points. See id. ¶ 7. Moreover, services scores in 91%

of USPS districts around the United States are lower as compared

to the pre-policy average from January 4, 2020 to July 4, 2020.

Id. ¶¶ 8-9.

Defendant Mr. DeJoy has recognized that USPS made only “one

change” in early July 2020, and that change regarded his request

that “the team . . . run the transportation on time and mitigate

extra trips.” Ex. 6 to Pls.’ Mot., ECF No. 16-8 at 4. In the

August 13, 2020 letter to all USPS employees, Mr. DeJoy also

acknowledged delivery delays were “unintended consequences” of

the USPS policy changes. See Pls.’ Mot., ECF No. 16-1 at 16

6 (citing USPS, Path Forward: PMG Addresses Restructuring (Aug.

13, 2020), https://rb.gy/y6tbre). Furthermore, in testimony

before the House Committee on Oversight and Reform on August 24,

2020, Mr. DeJoy again recognized that the USPS policy changes

were causing delivery delays and that it “expose[d] a need to

realign some of [USPS’s] processing and scheduling that caused

mail to miss the scheduled transportation.” See Ex. 8 to Pls.’

Mot., ECF No. 16-10 at 10. Mr. DeJoy stated that because

“production schedules within the plants were not aligned with

the transportation schedules going out,” “about 10% of the mail

was not aligned.” See Ex. 6 to Pls.’ Mot., ECF No. 16-8 at 7.

B. Procedural History

Plaintiffs filed this lawsuit on August 28, 2020. See

Compl., ECF No. 1. On September 8, 2020, Plaintiffs filed an

amended complaint against Defendants, see Am. Compl., ECF No.

15, and subsequently filed a motion for preliminary injunction

requesting that the Court enjoin Defendants and their agents

from implementing the USPS policy changes, see Pls.’ Mot.

Prelim. Inj., ECF No. 16. Defendants filed their opposition on

September 15, 2020. See Defs.’ Resp. Pls.’ Mot. Prelim. Inj.

(“Defs.’ Opp’n”), ECF No. 21. Plaintiffs filed their reply brief

on September 20, 2020. See Pls.’ Reply Supp. Mot. Prelim. Inj.

(“Pls.’ Reply”), ECF No. 24. The motion is ripe for the Court’s

consideration.

7 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

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).

8 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

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 Constitutional Claim

1. Plaintiffs Likely Have Standing To Bring This Challenge

As a threshold matter, Defendants argue that Plaintiffs

cannot establish that they are likely to succeed on the merits

because Plaintiffs lack standing in this case. Defs.’ Mot., ECF

No. 21 at 31.

To establish standing, “a plaintiff must show (1) an

‘injury in fact,’ (2) a sufficient ‘causal connection between

the injury and the conduct complained of,’ and (3) a

9 ‘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)). “These requirements apply whether an

organization asserts standing to sue, either on its own behalf,

or on behalf of its members.” Nat’l Treasury Emps. Union v.

United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (citing

Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982)).

“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. Office v. FERC, 949 F.3d 8, 13 (D.C. Cir.

2020) (internal quotation marks, citations, and alterations in

original omitted). However, only one plaintiff needs standing in

order for a claim to go forward. See Carpenters Indus. Council

v. Zinke, 854 F.3d 1, 9 (D.C. Cir. 2017) (citing Mountain States

Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996)).

Defendants argue that neither the “Organization

Plaintiffs”—Vote Forward, Voces Unidas de las Montañas, COLOR,

and Padres & Jóvenes Unidos—nor the individual Plaintiffs can

establish that they have suffered an injury-in-fact. Defs.’

Mot., ECF No. 21 at 31. Defendants do not allege that Plaintiffs

10 have not established causation or redressability for the

purposes of standing.

First, regarding organizational standing, the D.C. Circuit

recently articulated the test for determining whether an

organization satisfies the “irreparable harm” prong:

An organization is harmed if the “actions taken by [the defendant] have ‘perceptibly impaired’ the [organization’s] programs.” Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S. Ct. 1114, 71 L.Ed.2d 214 (1982)); see also Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996) (explaining that the initial question is whether “a defendant’s conduct has made the organization’s activities more difficult”). If so, the organization must then also show that the defendant’s actions “directly conflict with the organization’s mission.” Nat’l Treasury Emps. Union, 101 F.3d at 1430. The second step is required to ensure that organizations cannot engage in activities simply to create an injury. Id.

League of Women Voters v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016).

Citing Plaintiff Vote Forward as an example, Plaintiffs

argue that Defendants’ policy changes have impaired Vote

Forward’s programs by causing it to “redirect [its] limited

resources, which includes both [its] labor and [its] funds, to

address challenges caused by Defendants’ Policy that were

unforeseen.” Pls.’ Mot., ECF No. 16-1 at 41. According to

Plaintiffs, as part of Vote Forward’s mission to “empower

grassroots volunteers to help register voters from traditionally

11 underrepresented communities and encourage them to vote,” see

Forman Decl., ECF No. 16-24 ¶ 2, Vote Forward “has built an

online platform through which volunteers throughout the country

are connected with and encouraged to mail hand-written letters

to fellow citizens imploring them to vote,” Pls.’ Reply, ECF No.

24 at 26 (citing Forman Decl., ECF No. 16-24 ¶¶ 4-5). While Vote

Forward had previously planned to mail the get-out-the-vote

letters on October 27, in line with its “data” suggesting that

letters mailed closer to Election Day are more successful, Vote

Forward has had to move up its mailing date as a direct result

of the USPS policy changes, threatening to “diminish the success

of the campaign.” Pls.’ Reply, ECF No. 24 at 26 (citing Forman

Decl., ECF No. 16-24 ¶¶ 6, 8). As a result, Plaintiffs allege

that Vote Forward has had to divert resources “to respond to an

influx of inquiries [from] volunteers regarding USPS’s mailing

delays and to assess whether sending out [get-out-the-vote]

letters earlier than planned would negatively impact the

effectiveness of Vote Forward’s letter-writing campaign.” Pls.’

Mot., ECF No. 16-1 at 42. In addition, Vote Forward has had to

“expend[] multiple weeks of effort” to launch two new programs

as a result of the USPS policy changes: one that “aims to

quantify the mailing delays associated with Defendant’s

policies,” and another that “seeks to ascertain the differential

impact on voter turnout if [get-out-the-vote] letters are sent

12 one week versus three weeks prior to an election,” “at a total

cost of approximately $50,000.” Id.; Forman Decl., ECF No. 16-24

¶¶ 9-11. Thus, Defendants’ actions have “made the organization’s

activities more difficult,” Newby, 838 F.3d at 8 (quoting Nat’l

Treasury Emps. Union, 101 F.3d at 1430), as a result of the

“direct conflict between the defendant’s conduct and the

organization’s mission,” Abigail All. v. Eschenbach, 469 F.3d

129, 133 (D.C. Cir. 2006) (citation omitted).

Contrary to Defendants’ assertion, Plaintiffs’ decision to

“use[] its resources to counteract” such injury is not self-

inflicted solely because it is voluntary. Food & Water Watch,

Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015) (quoting

PETA v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015)); see also

Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1139 (D.C. Cir.

2011) (explaining that an injury is not a “self-inflicted . . .

budgetary choice[]” merely by having been made willfully or

voluntarily (quoting Fair Emp’t Council of Greater Wash., Inc.,

28 F.3d at 1276). Rather, as long as the organization expends

resources “to counteract the effects of the defendant[’s]”

challenged conduct, that diversion can suffice for Article III

purposes. Id. at 1140. As stated above, Plaintiff Vote Forward

has demonstrated that its expenditures—“such as the time and

monetary expenses associated with Vote Forward’s new programs to

test the time it will take to deliver letters and to gauge the

13 effectiveness of a get-out-the-vote campaign weeks, rather than

mere days, before Election Day”—were undertaken to directly

counteract the harms caused by Defendants’ actions. Pls.’ Reply,

ECF No. 24 at 28. In addition, although Defendants argue that

Plaintiffs such as Vote Forward could not suffer an injury

because they “educate and assist potential voters as part of

their standard activities,” Defs.’ Opp’n, ECF No. 21 at 32, the

fact that Defendants’ actions undermined Vote Forward’s ability

to conduct its usual activities is sufficient to constitute a

“drain on the organization’s resources,” not “simply a setback

to the organization’s abstract social interests.” Nat’l Ass’n of

Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (quoting

Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433

(D.C. Cir. 1995)); see also Havens, 455 U.S. at 379 (finding

sufficient for organizational standing purposes that plaintiff

alleged it had “been frustrated by defendants’ racial steering

practices in its efforts to assist equal access to housing

through counseling and other referral services” and “had to

devote significant resources to identify and counteract the

defendant’s [sic] racially discriminatory steering practices”

(alteration in original)).

The Court also concludes that Plaintiffs have shown

traceability and redressability. Regarding traceability,

Plaintiffs have demonstrated that the implementation of the USPS

14 policy changes in July coincided with a significant decline in

USPS on-time service scores, and Defendants have acknowledged

that the only change USPS made in early July was in regard to

the policy regarding transportation and extra trips. Pls.’

Reply, ECF No. 24 at 12 (citing Ex. 6, ECF No. 16-8).

Defendants, however, argue that Plaintiffs cannot establish that

their injuries are solely the result of the USPS policy changes

because of the “simultaneous impact” of the COVID-19 pandemic.

Defs.’ Mot., ECF No. 21 at 43-44. Defendants suggest instead

that staffing shortages due to the pandemic caused the decline

in USPS on-time service scores. Id. The Court is not persuaded.

As Plaintiffs point out, USPS data “show no relationship between

declines in on-time service scores and the time periods in which

USPS allegedly experienced staffing shortages.” Pls.’ Reply, ECF

No. 24 at 13. In fact, in comparison with prior months, the

average service scores actually increased in March at the moment

when Defendants allege staffing shortages were worsening. Id.

(citing Grimmer Decl., ECF No. 24-2 ¶ 13; Prokity Decl., ECF No.

21-2 ¶ 5). Furthermore, “declines in service scores continued

after the claimed staffing problems had abated.” Id. (citing

Prokity Decl., ECF No. 21-2 ¶ 10). Based on the data figures,

the Court finds that Plaintiffs’ claimed injuries are likely the

result of the USPS policy changes and may be remedied by

declaratory or injunctive relief.

15 Accordingly, Plaintiff Vote Forward has established a

substantial likelihood of standing. Because the Court is

satisfied that Vote Forward has standing, the Court need not

address whether the other Plaintiffs also have standing in order

to proceed.

2. The Applicable Legal Standard

Prior to considering the merits, the parties disagree as to

which legal standard should govern Plaintiffs’ claim that the

USPS policy changes impose an unconstitutional burden on the

right to vote under the First and Fifth Amendments. Plaintiffs

argue that the Court should apply the Anderson-Burdick

framework, derived from Anderson v. Celebrezze, 460 U.S. 780

(1983) and Burdick v. Takushi, 504 U.S. 428 (1992), in this

matter. Pls.’ Mot., ECF No. 16-1 at 26. Under Anderson, Burdick,

and their progeny, the United States Supreme Court has

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 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

16 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).

Defendants, for their part, argue that the Anderson-Burdick

framework does not apply here because that standard only

concerns the constitutionality of state election laws—not “a

non-election law that may have an attenuated, indirect effect on

the electoral process” or the “everyday actions” of federal

agencies. Defs.’ Opp’n, ECF No. 21 at 36-37. In Defendants’

view, “[a]pplying the Anderson-Burdick balancing test to any

policy that has some impact on the electoral process would

17 produce odd results,” including “that any deficiency in USPS

service could give rise to a constitutional voting rights

claim.” Id. at 37. Defendants argue that because the Anderson-

Burdick framework does not apply, Plaintiffs’ claim must fail

because Plaintiffs have not alleged stand-alone claims under

either the First or Fifth Amendments, which encompass distinct

requirements as compared to a claim alleged under Anderson-

Burdick. Id. at 38.

Defendants further argue that even if the Court considers

the USPS policy to constitute an “election law,” the Anderson-

Burdick framework still would not apply. Id. Rather, the Court

would 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

18 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

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 . . . who

were physically restricted from the polls.” Defs.’ Opp’n, ECF

No. 21 at 39.

The Court finds that McDonald is inapposite. 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. Rather, Plaintiffs allege that Defendants’

policy changes undermine the integrity of the November 2020

election by causing delays in the delivery of mail-in ballots,

resulting in the risk that hundreds of thousands of voters will

be disenfranchised. Second, “[t]he Supreme Court has expressly

restricted [McDonald’s] applicability to cases in which there is

no evidence showing that the challenged restriction will

prohibit the plaintiff from voting.” Jones v. U.S. Postal Serv.,

No. 20-cv-6516 (VM), 2020 WL 5627002, at *15 (S.D.N.Y. Sept. 21,

2020). For example, in Hill v. Stone, the Supreme Court

19 explained that, in McDonald, “there was nothing in the record to

indicate that the challenged Illinois statute had any impact” on

the right to vote, but that the case had acknowledged that

“[a]ny classification actually restraining the fundamental right

to vote . . . would be subject to close scrutiny.” Hill v.

Stone, 421 U.S. 289, 300 n.9 (1974) (citing McDonald, 394 U.S.

at 807-09). In other words, “[e]ssentially the Court’s

disposition of the claims in McDonald rested on failure of

proof.” O’Brien v. Skinner, 414 U.S. 524, 529 (1974). Because

Plaintiffs have provided evidence that the USPS policy will

inhibit many voters’ ballots from being counted in the November

2020 election, McDonald’s rational basis test is inappropriate.

Whether the Court should consider Plaintiffs’ claim under

the Anderson-Burdick framework is not so straightforwardly

dismissed, however. 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, 2020 WL 5627002, at *14 (“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

20 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 November 2020

election, 43 states and the District of Columbia will permit all

eligible voters to vote by mail-in ballot, and 28 of those

states will require that the ballots be received by Election

Day. Pls.’ Mot., ECF No. 16-1 at 7-8 (citing news reports).

Furthermore, a “conservative” estimate predicts that 80 million

ballots will be submitted by mail. See Hersh Decl., ECF No. 16-

15 ¶ 14. In other words, for tens of millions of voters this

year, the postal service “is literally the method by which the

election is conducted.” Pls.’ Reply, ECF No. 24 at 16. 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.’ Opp’n, ECF No. 21 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

21 Election.” Id. at 12-13. This relationship between the USPS and

the electoral process suggests a strong connection with the

protection of voters’ rights.

And although the Court acknowledges that the majority of

cases apply the Anderson-Burdick test within the confines of a

state election law, this aligns with the fact that “our country

has a highly decentralized system of election administration, in

which states and localities are primarily responsible for

regulating and managing elections.” Jones, 2020 WL 5627002, at

*14 (citations omitted). Defendants correctly note, for example,

that both Anderson and Burdick themselves concerned the

constitutionality of state-level election laws and indicated

that the balancing test applies when a court is considering a

challenge to such laws. However, the Court is not persuaded that

either case, or the cases that have followed, have so restricted

application of the balancing framework to only that specific

context. For example, 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

22 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”). Courts

have also applied the Anderson-Burdick balancing test in the

context of non-election laws. For example, in Monserrate v. New

York State Senate, 599 F.3d 148 (2d Cir. 2010), the United

States Court of Appeals for the Second Circuit addressed a First

Amendment challenge to the New York Senate’s decision to expel a

senator who had been accused of domestic violence. Id. at 152-

53. The Second Circuit found that the Anderson-Burdick line of

cases was not limited to the pre-vote election law context,

stating that the Supreme Court had “minimized the extent to

which voting rights are distinguishable from ballot access

cases” because “the rights of voters and the rights of

candidates do not lend themselves to neat separation.” Id. at

23 155 (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 “constitutional equivalent” of

voting).

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.

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

24 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.

Accordingly, the Court finds that Plaintiffs have

established that the Anderson-Burdick framework likely applies

to Plaintiffs’ claim.

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

Plaintiffs argue that the USPS policy changes “impose[]

undue burdens on Plaintiffs’ and other voters’ rights to vote in

25 violation of the First and Fifth Amendments.” Pls.’ Mot., ECF

No. 16-1 at 10. 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.” Burdick, 504

U.S. 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

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)). “Obviously included within the

26 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) (emphasis added). 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 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.

Plaintiffs have provided sufficient evidence suggesting that

Defendants’ policy has caused and will continue to cause

inconsistency and delays in the delivery of mail across the

United States, placing at particular risk voters residing in one

of the 28 states that require mail ballots to be received, not

just post-marked, by Election Day. For example, Plaintiffs

27 explain that if a voter residing in one of those 28 states mails

in her ballot on the Saturday before Election Day, a one-day

delay “significant[ly] increases the risk of the ballot being

rejected as untimely,” and a two-day delay “would make

disenfranchisement a certainty.” Pls.’ Mot., ECF No. 16-1 at 30.

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; see also Supp. Grimmer Decl., ECF No 24-2 ¶¶ 5, 7

(listing “on-time” service scores varying across USPS areas in

the United States). Indeed, USPS itself has acknowledged the

threat of voter disenfranchisement that may result from delivery

delays caused by Defendants’ policy, warning in a July 29, 2020

letter to 46 states and the District of Columbia that USPS

“cannot guarantee all ballots cast by mail for the November

election will arrive in time to be counted.” See Pls.’ Mot., ECF

No. 16-1 at 15. 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. 16-15 ¶¶

14, 21-23; see also Pls.’ Mot., ECF No. 16-1 at 7 (citing

28 Juliette Love, Matt Stevens, & Lazaro Gamio, Where Americans Can

Vote by Mail in the 2020 Election, N.Y. Times (last updated Aug.

14, 2020), https://rb.gy/fwss8l)).

Furthermore, while content neutral, Defendants’ policy

changes place an especially severe burden on those who have no

other reasonable choice than to vote by mail, such as those who

may be at a high risk of developing a severe case of COVID-19

should they become exposed to the virus at the polling place,

and those who are not physically able to travel to the polls due

to disability. See Pls.’ Mot., ECF No. 16-1 at 31. For these

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

only safe choice they have. Defendants, however, suggest that

these individuals and others can avoid such injuries if they

only choose to vote earlier. Defendants argue that there is no

severe burden on Plaintiffs because any disenfranchisement would

be due to “‘their own failure to take [the] timely steps’

necessary.” Defs.’ Opp’n, ECF No. 21 at 40 (alteration in

original) (quoting Rosario v. Rockefeller, 410 U.S. 752, 758

(1973)). In Defendants’ view, USPS “cannot be required by the

Constitution to ensure that a voter’s ballot arrive in the

timeframe set by her state if that voter mails the ballot the

day before the state’s deadline.” Id. This argument fails. In

suggesting that voters should cast their ballots earlier than

required, Defendants ignore Plaintiffs’ “essential” interest in

29 making “informed choices among candidates for office.” McIntyre

v. Ohio Elections Comm’n, 514 U.S. 334, 346-47 (1995). As the

Supreme Court has recognized, “[i]n election campaigns,

particularly those which are national in scope, the candidates

and the issues simply do not remain static over time.” Anderson,

460 U.S. at 790. Many individuals, including Plaintiffs in this

case, rely on the efficient delivery of their mail-in ballots so

that they make take the time available to consider the issues

and candidates in an election. See, e.g., Datta Decl., ECF No.

16-23 ¶¶ 3-5. Accordingly, any argument that Plaintiffs inflict

injury on themselves by not voting earlier does not

significantly lessen their harms in this situation. In any

event, Plaintiffs’ arguments are in regard to voters who decide

to send in their ballots three days in advance of Election Day,

not one day.

Defendants also 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. 21 at 35. 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. However, Defendants miss the

point. Plaintiffs here are not alleging that Defendants are

denying them a right to vote by mail. Rather, Plaintiffs are

30 alleging that the Defendants’ policy changes undermine the

integrity of the November 2020 election by causing delays in the

delivery of mail-in ballots, resulting in thousands of votes not

being counted. As the Supreme Court has explained, “[h]aving

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.” Bush v. Gore, 531 U.S. 98,

104-05 (2000) (quoting Harper, 383 U.S. at 665). And that is

precisely the issue. For example, if one of the individual

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 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 v. Sims, 377 U.S. 506, 565 (1964)).

Defendants contend that the USPS policy changes do not

impose a “severe” burden on voters because “USPS has not

instituted a ban on late trips or extra trips,” only a call for

a “renewed focus on schedules.” Defs.’ Opp’n, ECF No. 21 at 40.

Defendants argue that there is “little indication” that policy

changes will cause delays in view of the “resources USPS is

committing to Election Mail, and USPS’s assurance that it has

31 the capacity to process the expected volume of Election Mail.”

Id. However, even if Defendants did not institute a full “ban”

on late or extra trips, Defendants have not rebutted the

statistics that Plaintiffs have put forward indicating that the

nearly 75% drop in the number of late and extra trips has

resulted in “a material cut in USPS’s capacity to timely deliver

mail.” See Cintron Decl., ECF No. 21-1 ¶¶ 23-25; Pls.’ Reply,

ECF No. 24 at 11; see also Grimmer Decl., ECF No. 16-11 ¶ 9

(stating that USPS cuts amounted to an average of 32,900 fewer

trips per week). Although Defendants suggest that the drop in

USPS’s “on-time” deliveries were partly caused by staffing

shortages from COVID-19, the Court is persuaded by Plaintiffs’

analysis of USPS data showing “no relationship between declines

in on-time service scores and the time periods in which USPS

allegedly experienced staffing shortages.” Pls.’ Reply, ECF No.

24 at 13. Furthermore, as USPS has “itself forecast[ed] the

injuries” previously, it is “disingenuous” for USPS to claim

that there is “little indication” of delays in delivery of mail-

in ballots. See Jones, 2020 WL 5627002, at *12 (citation

omitted). The Court finds that such burdens on voters’ right to

have their ballots counted suggests that a high level of

scrutiny is required.

Against such injuries, Defendants assert that the policy

changes are “intended to increase efficiency” and “minimize

32 unnecessary costs.” Defs.’ Opp’n, ECF No. 21 at 41. Defendants

contend that these “general regulatory interests” survive the

Anderson-Burdick inquiry under a rational basis review. Id.

(quoting Libertarian Party, 682 F.3d at 77). In Defendant’s

view, the fact that the USPS policy changes were actually

inefficient in the short term or that cost savings may be

minimal does not mean that they were any less legitimate. Id.

Defendants argue that “the proffered justifications for the USPS

policy at issue are sufficient to justify the indirect, minimal

burden it may impose on voters.” Id. Plaintiffs 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 that the mail delivery slow-downs

were expected because the policy’s purpose was to “undermine the

ability of the Postal Service to fulfill its statutory duty to

provide ‘prompt, reliable, and efficient services to patrons in

all areas.’” Pls.’ Mot., ECF No. 16-1 at 32-33 (quoting 39

U.S.C. § 101(a)). Plaintiffs also contend that Defendants’ cost

savings rationale is insufficient because (1) case precedent

establishes that the government may not burden fundamental

rights in its quest to save costs; (2) the cost savings are

minimal over the period leading up to Election Day; and (3)

Defendant Mr. DeJoy has confirmed that the USPS’s financial

position is sound. Id. at 33-35.

33 Defendants are correct that the government generally need

not justify itself with “elaborate, empirical verification” of

its interests in a rational basis review. Timmons v. Twin Cities

Area New Party, 520 U.S. 351, 364 (1997). 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 “compliance with pre-set schedules is

intended to increase efficiency” and minimize “administrative

costs.” Defs.’ Opp’n, ECF No. 21 at 41 (quoting Libertarian

Party, 682 F.3d at 77). Defendants’ reasons for administrative

cost savings are insufficient: as the Supreme Court has

34 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.” Ex. 4, ECF No. 16-6 at 2. And despite Defendants’

assertions to the contrary, as of the end of August, USPS

service scores remain lower that the pre-policy average. See

Suppl. Grimmer Decl., ECF No. 24-3 ¶ 5.

Accordingly, the Court finds that Plaintiffs are likely to

succeed on their constitutional claim.

B. Plaintiffs Face Irreparable Harm

“The failure to demonstrate irreparable harm is ‘grounds

for refusing to issue a preliminary injunction, even if the

other three factors . . . merit such relief.’” Nat’l Mining

Ass’n v. Jackson, 768 F. Supp. 2d 34, 50 (D.D.C. 2011) (RBW)

(quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d

290, 297 (D.C. Cir. 2006)). “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

35 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). Furthermore, similar to the test for

organizational standing, an organization faced irreparable harm

where (1) the “actions taken by [the defendant] have

‘perceptibly impaired’ the [organization’s] programs,” League of

Women Voters, 838 F.3d at 8 (alteration in original) (quoting

Fair Emp’t Council of Greater Wash., 28 F.3d at 1276), and (2)

“the defendant’s actions ‘directly conflict with the

organization’s mission,” id. (quoting Nat’l Treasury Emps.

Union, 101 F.3d at 1430).

The Court finds that both the individual Plaintiffs and the

Organization Plaintiffs face irreparable harm absent a

preliminary injunction.

1. The Individual Plaintiffs Face Irreparable Harm

The individual Plaintiffs argue that the USPS policies puts

their vote at risk of not being counted if they choose to send

in their ballot on a day that is close to Election Day. Prior to

the implementation of the USPS policy, the individual Plaintiffs

would have been able to reasonably expect that a ballot placed

36 in the mail on October 31, the Saturday prior to Election Day,

would have arrived at its intended destination by November 3,

based on the 1 to 3 day First Class Mail delivery standard.

Pls.’ Mot., ECF No. 16-1 at 37. Now, however, even with just a

one-day delivery delay caused by the USPS policy changes, there

is a significant risk that a voter’s ballot will not be counted.

Id.

In response, Defendants argue that the individual

Plaintiffs’ preference to wait to send in their ballots until

closer to Election Day because they want to avoid regretting

their decision or because they want to “wait until they have all

the information they need” is insufficient and too speculative

to establish an irreparable harm. Defs.’ Opp’n, ECF No. 21 at 42

(alterations omitted). In other words, “‘if their plight can be

characterized as disenfranchisement at all, it was not caused

by’ USPS but rather ‘their own failure to take [the] timely

steps’ necessary.” Id. (alteration in original) (quoting

Rosario, 410 U.S. at 758). Furthermore, Defendants assert that

“in light of service improvements and ongoing efforts to timely

delivery [sic] Election Mail,” Plaintiffs cannot show that their

ballots would not be received in time. Id. at 42-43.

The Court finds that the individual Plaintiffs have

sufficiently shown they will likely suffer irreparable harm

absent a preliminary injunction. As described above, Plaintiffs

37 have provided ample 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 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). Defendants’ suggestion that Plaintiffs need

only vote earlier than planned also does not remedy the harms

Plaintiffs would face in being forced to make a decision on how

to vote before they have all of the information they require.

Cf. McIntyre, 514 U.S. at 346–47 (“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, as Plaintiffs have pointed out,

Defendants’ own data suggests that USPS’s service scores have

not bounced back since the implementation of the policy changes,

38 and Defendants have provided no other information suggesting

that that will change prior to Election Day. See Pls.’ Reply,

ECF No. 24 at 10-13; see also Grimmer Decl., ECF No. 16-11;

Suppl. Grimmer Decl., ECF No. 24-2.

The individual Plaintiffs have thus asserted irreparable

harm.

2. The Organization Plaintiffs Face Irreparable Harm

The Organization Plaintiffs argue that they have also

demonstrated that irreparable harm is clear and immediate

because the USPS policy has “caused Plaintiffs to redirect their

limited resources, which includes both their labor and their

funds, to address challenges caused by Defendants’ Policy that

were unforeseen.” Pls.’ Mot., ECF No. 16-1 at 41. In response,

Defendants argue that any claimed injury to the Organization

Plaintiffs’ resources are insufficient because they have not

established that mail delays were solely a result of the USPS

policy as opposed to COVID-19. Defs.’ Opp’n, ECF No. 21 at 43.

Defendants assert that COVID-19 caused significant staffing

shortages beginning in March 2020, and, although the shortages

began to recover in June, “the availability for July again began

to decrease, with availability falling to its lowest levels in

the week of July 11, 2020.” Id. (citing Prokity Decl., ECF No.

21-2 ¶¶ 4-5). Thus, given these “simultaneous” impacts,

Plaintiffs cannot claim that the USPS policy was the sole cause

39 of their injury. Id. at 43-44. Defendants also contend that any

future harms are not “certain and great.” Id. at 44 (quoting

Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Human

Servs., No. 20-cv-1630 (JEB), 2020 WL 5232076, at *38 (D.D.C.

Sept. 2, 2020)).

Here, the Organization Plaintiffs have shown a likelihood

of suffering irreparable harm. “As the D.C. Circuit has

confirmed, ‘[o]bstacles’ that ‘unquestionably make it more

difficult for [an organization] to accomplish [its] primary

mission . . . provide injury for purposes both of standing and

irreparable harm.’” Whitman-Walker Clinic, Inc., 2020 WL

5232076, at *38 (alterations in original) (quoting League of

Women Voters, 838 F.3d at 9). As described, the USPS policy

changes have likely impaired and will likely continue to impair

Plaintiff Vote Forward’s ability to provide its services,

undermining its mission. Plaintiff Voces Unidas has asserted

similar harms to its programs: to counteract the harms caused by

the USPS policy changes, Voces Unidas—an organization “dedicated

to increasing civic engagement of the Latino population in three

rural Colorado counties” through get-out-the-vote campaigns—

estimates it will need to spend between $50,000 to $80,000

beyond its original budget through hiring “additional canvassers

to intensify the campaign earlier than previously anticipated

and to pay for additional advertising and dissemination of

40 information to the communities it serves.” Pls.’ Mot., ECF No.

16-1 at 42-43 (citing Voces Unidas Decl, ECF No. 16-25); cf.

Food & Water Watch, Inc., 808 F.3d at 920 (explaining that an

organization suffers an injury where it “expend[s] resources to

educate its members and others” and those “operational costs

[go] beyond those normally expended”). Furthermore, the Court

has already determined that Plaintiffs’ harms were the result of

the implementation of the USPS policy changes, not staffing

shortages, and, as stated above, “that harm is irreparable”

because after the November election passes, “there can be no do

over and no redress.” League of Women Voters, 838 F.3d at 9

(quoting League of Women Voters of N.C., 769 F.3d at 247).

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,

41 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

public interest favor a preliminary injunction because it is in

the public interest to prevent constitutional violations and to

allow eligible citizens to vote. Pls.’ Mot., ECF No. 16-1 at 43-

44. 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) “the Individual

Plaintiffs have an opportunity to avoid any harm by mailing in

their ballots without delay”; (3) the July 10 “Stand-Up Talk”

“does not represent official USPS policy”; 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. 21 at 44-

45.

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. League of Women Voters,

838 F.3d at 12 (“There is generally no public interest in the

perpetuation of unlawful agency action.”). Nor does the proposed

injunction contemplate that the Court would become involved in

overseeing the day-to-day operations of the USPS. And while it

may be true that the “Stand-Up Talk” itself may not be an

official policy, Defendants do not contest that they have

implemented changes regarding transportation and extra trips,

and the Court has the authority to adjust the requested relief

as appropriate. 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 . . . .”).

IV. Conclusion

For the foregoing reasons, the Court GRANTS the Plaintiffs’

motion for a preliminary injunction. Any request to stay this

decision pending appeal will be denied for substantially the

43 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 September 28, 2020