Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

FOR IMMEDIATE RELEASE: 
Sep 10 2020

Preliminary injunction would force USPS to treat all election mail as First Class mail

YAKIMA — Attorney General Bob Ferguson late yesterday asked a Yakima judge to immediately halt the U.S. Postal Service’s drastic operational changes that threaten critical mail delivery nationwide.

Ferguson’s motion for preliminary injunction, filed in the U.S. District Court for the Eastern District of Washington, seeks the following:

  • Immediately stop the Postal Service’s “leave mail behind” policy, where postal trucks are required to leave at specified times, regardless if there is mail still to be loaded
  • Require the Postal Service to continue its longstanding practice of treating all election mail as First Class mail, regardless of the paid postage
  • Require the Postal Service to replace, reassemble, or reconnect any removed mail-sorting machines that are needed to ensure timely processing and delivery of election mail
  • Require the Postal Service to abide by Postmaster General DeJoy’s commitment to suspend the recent policy changes that have affected mail service until after the election

Ferguson is leading a coalition of 14 states that filed a lawsuit over the changes to the Postal Service on Aug. 18. The coalition includes battleground states, including Michigan, Nevada and Wisconsin. The Postal Service changes, including eliminating or reducing staff overtime, halting outgoing mail processing at state distribution centers and removing critical mail sorting equipment, threaten the timely delivery of mail to millions of Americans who rely on the Postal Service for everything from medical prescriptions to ballots.

On Aug. 27, Judge Stanley A. Bastian granted Ferguson’s motion for expedited discovery in the case, forcing the administration to produce records within 10 days related to the lawsuit. Those records, produced on Sept. 6, can be found here.

Judge Bastian scheduled a hearing on Ferguson’s preliminary injunction motion for Sept. 17.

“The Postal Service provides a critical lifeline to our veterans and seniors,” Ferguson said. “With the national election less than two months away, we are seeking a judicial order protecting this critical government service.”

Ferguson’s lawsuit asserts that the Postmaster General unlawfully implemented drastic changes to mail service, and seeks to stop the service reductions. Immediately after Ferguson filed his lawsuit, the Postmaster General made public commitments after Ferguson’s lawsuit was filed that he would halt some — but not all — of those changes. Since that time, mail delays continue, and questions remain about what changes are still in effect.

Today’s motion asks Judge Bastian to stop the changes nationwide.

“Nationwide relief is also needed to provide complete relief to the Plaintiff States for the procedural harm they have suffered: deprivation of the right to comment on broad-based changes before implementation,” Ferguson writes in the preliminary injunction motion. “Allowing these ‘transformative changes’ to take effect in much of the country while the (Postal Regulatory Commission) considers whether they should be allowed to take effect would render the legally required notice and comment process a farce.”

The changes at the Postal Service come as President Donald Trump continues to claim without evidence that widespread vote-by-mail will lead to a fraudulent election. Washington state has allowed elections to be conducted completely by mail-in ballot since 2005, and mandated the practice statewide in 2011. The state has not experienced voter fraud at any significant level.

Changes impact seniors, veterans

The Postal Service changes impact more than mail-in elections. They also impair critical mail services that many seniors and veterans rely upon.

The COVID-19 pandemic has forced many Americans, especially seniors and other high-risk individuals, to rely increasingly on mail delivery services while they stay at home for their health. In general, seniors rely heavily on the mail to receive essentials like medications, Social Security benefits and even groceries.

The policy changes have already impacted our country’s veterans, who are reporting much longer wait times to receive mail-order prescription drugs. The U.S. Department of Veteran Affairs (VA), which provides broad health care services to veterans nationwide, fills about 80 percent of veteran prescriptions by mail. The VA processes about 120 million mail-order prescriptions per year — 470,000 a day. The Postal Service makes daily prescription deliveries to 330,000 veterans across the country.

A Washington U.S. Navy veteran who has a chronic condition and relies on multiple medications from the VA detailed the impacts mail delays have had on his health. In a declaration supporting the preliminary injunction, he explains that he started experiencing delays in Postal Service deliveries in July, when DeJoy’s “leave behind” policy was implemented. The veteran had previously received refills three or four days before running out of medication, but since July he has received them three or four days after running out. Missing his daily doses could be life-threatening, he explains, increasing his risk of stroke or heart attack.

Impacts of “leave behind” policy

Under DeJoy’s “leave behind” policy, Postal Service trucks are now required to leave sorting facilities at specified times each day, even if there is still mail to be loaded. As a result, mail that is supposed to be delivered on a certain day is left to pile up at sorting facilities for delivery at some future date.

In Tennessee, trucks are reportedly leaving Postal Service sorting facilities empty because of DeJoy’s policy of not allowing trucks to leave after their scheduled time. A postal worker told a reporter in Nashville that Express and Priority Mail — including time-critical items such as legal documents and cremated remains — are being left behind because of the policy.

According to a 30-year Washington postal worker, the new policy is also causing outgoing mail to be delayed. For example, these trucks no longer have the discretion to wait if a mail carrier is about to return with a large bundle of outgoing mail collected during the day. That mail must sit and wait for the following day.

Internal documents from the Postal Service foresaw that this change would cause delays. Though it predicted that the delays would diminish after operational efficiency increased, DeJoy himself acknowledged that did not happen. During congressional testimony, the postmaster general admitted that his “leave behind” policy significantly contributed to slow-downs in First Class mail delivery over the summer.

Changes impact vote-by-mail elections

Across the country, record numbers of American residents are requesting absentee ballots in the midst of the COVID-19 pandemic.

For example, in Wisconsin, around 2 million voters are expected to request an absentee ballot and vote by mail. In June, the Postal Service shut down four sorting machines used at its distribution center in downtown Milwaukee, Wis., and planned to remove three more before DeJoy temporarily suspended the removal of sorting machines. Staff shortages have cut the number of employees running each sorting machine in half. Election officials in Wisconsin now report that election mail takes about a week to arrive to voters in Madison.

These delays greatly increase the likelihood that mailed-in votes will miss election deadlines and threaten to disenfranchise a large swath of voters, particularly those most vulnerable to COVID-19. While Washington state counts ballots that are postmarked by Election Day, even if they arrive after, other states require that ballots be received on or before Election Day to be counted.

Washington is leading the lawsuit, joined by Colorado, Connecticut, Illinois, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Virginia and Wisconsin.

Assistant Attorneys General Kristin Beneski, Nathan Bays, Andrew Hughes and Cristina Sepe, as well as Deputy Solicitors General Emma Grunberg, Tera Heintz and Karl Smith are handling the case for Washington.

Ferguson has filed 77 lawsuits against the Trump Administration. Forty-four of these cases are awaiting a judicial ruling. Ferguson has 33 legal victories against the Trump Administration. There has been one adverse decision on the merits and Ferguson is appealing that decision. Twenty-one of these cases are finished and cannot be appealed.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

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Dan Jackson, Acting Communications Director, (360) 753-2716; dan.jackson@atg.wa.gov

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