Lawsuits against DeJoy, USPS & Trump over mail delays and election mail

SteveBlog, Slideshow

Twelve lawsuits have been filed against Postmaster General DeJoy, the U.S. Postal Service, and President Trump over issues connected to mail delays and threats to voting by mail in the November election. We’re “live blogging” the latest developments on a daily basis. You can find a list of all the cases at the end of this post here, with links to the original complaints and the case numbers on PACER.

We’re reporting on the service performance reports being submitted in several of the cases on a separate updates page, here.  (The Postal Service’s weekly on-time service performance reports submitted in Jones v USPS can be found here. The daily reports being submitted in Richardson, Vote Forward, and NAACP are here. There have also been reports made public by requests via FOIA and the PRC. All the performance reports are here.)

November 6, 2020

As ordered by Judge Sullivan yesterday, the Postal Service has filed two reports early this morning. The first is a summary of information learned from plant managers for the following USPS districts: Greensboro, MidCarolinas, Central Pennsylvania, Western Pennsylvania, and Philadelphia Metropolitan.

The second is a report showing the total number of ballots identified through daily sweeps of processing facilities in states with extended ballot receipt deadlines.

The Postal Service has filed another of its reports explaining districts with low inbound or outbound processing scores. Specifically, “for each USPS District whose Election Mail processing scores for Inbound Ballots were below 90 percent on each of the previous two days or below 80 percent on the previous day, Defendants’ understanding, based on all reasonably available information, of potential explanations for the current level of service and any corrective measures that are now being implemented, as previously required under the Court’s October 30 Order.”

The plaintiffs in Richardson, Vote Forward, and NAACP have filed a notice and proposed order. The proposed order says, “Beginning November 7, 2020, Defendants shall no longer be required to produce daily data on the percentage of on-time deliveries at the Nation, Area, and District level for first class mail and marketing mail, as previously required under the Court’s October 27 Order. Instead, Defendants shall produce this data on a weekly basis.”

The proposed order also modifies other reports the Postal Service had been required to produce. It will no longer be required to produce data on outbound ballots (those sent to voters), and it won’t be required to produce those explanations for processing scores for Inbound Ballots below 90 percent on each of the previous two days.

The order would also ask for “information sufficient to show the absolute number Inbound Ballots covered by the processing score for a given District that had an origination scan in the District, a destination scan in the District, or both. Defendants shall include this data retroactive to November 4.”

The order also states, “Plant managers and district managers jointly overseeing USPS processing facilities that serve Alaska, Illinois, Iowa, Maryland, Mississippi, North Dakota, Ohio, and West Virginia shall coordinate with all local Boards of Elections (the “Local Boards”) in those states to deliver all ballots to the Local Boards before the relevant extended state ballot receipt deadline.”

The notice provides the rationale for the specific requests for information described in the proposed order.

November 5, 2020

Afternoon update: Judge Sullivan presided over another hearing today. One of the questions on the table was how many ballots may have been delivered late or are still in the system and not delivered yet. The Postal Service shared some specific numbers, as reported in a great “live” twitter thread on the hearing by @USPostOffice911.

Looking a ballots without a destination scan, the Postal Service says that in the Central PA district, there are 1524 total, and of these USPS has confidence that 979 were expedited, while 545 require further investigation.  In Greensboro, 3087 total, 1752 expedited, 1335 to investigate. In the Carolina district, 2404 total without destination scans, 1204 confidence they were expedited, 1200 to investigate. In Philadelphia, 2496 total, 1682 expedited, 814 to investigate. The Postal Service said that there is no evidence yet that the ballots in the “investigated” category were not delivered.

In a separate filing, the Postal Service provided a list of the number of ballots that were delivered Express in each district over the three days Nov. 1- Nov. 3. The total appears to be about 10,655.

The plaintiffs have presented two proposed orders, which Judge Sullivans appears to have ordered.

The first states: All USPS processing facilities that serve a state with an extended ballot receipt deadline shall, until that deadline passes, perform a morning ballot sweep (no later than 10 a.m., local time) and a mid-to-late afternoon ballot sweep that is timed to ensure that any identified local ballots can be delivered that day. Upon completing a sweep, each facility shall report to USPS Headquarters the total number of ballots identified and confirm that those ballots have been expedited for delivery to meet applicable extended state deadlines. Beginning on November 5, 2020, and until further order of the Court, Defendants shall promptly submit to Plaintiffs a single report with the total number of ballots identified through daily sweeps, with one exception: for facilities that are located in states whose ballot receipt deadline is that day, Defendants shall submit the results of those sweeps to Plaintiffs immediately following its receipt of the results of the second sweep at these facilities.

The second proposed order states:

1. On November 5, 2020 and November 6, 2020, Defendants shall file before the Court the equivalent information presented in “Defendants’ Summary of Information Learned from Plant Managers” (ECF No. 78) for the following United States Postal Service (USPS) districts: Greensboro, Mid-Carolinas, Central Pennsylvania, Western Pennsylvania, and Philadelphia Metropolitan.

2. Plant managers and district managers jointly overseeing USPS facilities in Greensboro, Mid-Carolinas, Central Pennsylvania, Western Pennsylvania, and Philadelphia Metropolitan shall coordinate with all local county Boards of Elections in North Carolina or Pennsylvania (the “Local Board”) to deliver all ballots to the Local Board before 5:00 PM local time in North Carolina or Pennsylvania on November 6, 2020. Such arrangements shall include, at a minimum, the following:

a. USPS employees of each facility shall be directed to undertake a sweep of the facility on the morning and again on the afternoon of November 6 to identify any inbound ballots postmarked on or before November 3.

b. The afternoon sweep should be conducted at a time sufficient for the ballots to be delivered to the Local Board for receipt by 5:00 PM local time on November 6, 2020.

c. Plant managers and district managers may implement a hub-and-spoke plan for each county, to the extent that such plan would assist timely delivery of the ballots to the Local Board.

3. No later than 5:00 PM EST today, Defendants shall file before the Court details of the arrangements adopted pursuant to Paragraph 2 of this Order by each USPS district and, to the extent facilities within each USPS district adopt different plans, by each USPS facility.

Morning update: The big news to come out of yesterday’s hearing in NAACP-Richardson-Vote-Forward was, of course, Judge Sullivan’s expression of displeasure with the Postal Service’s failure to follow his order of Nov. 3. It immediately made headlines like these:

Most of yesterday’s hearing was considerably less dramatic than the headlines suggest. A lot of it was an in-the-weeds discussion about how the processing plants were handling ballots, conducting sweeps, etc. The hearing focused largely on the testimony of Kevin Bray, the USPS executive lead for mail processing in the 2020 elections. He also submitted a written declaration. Daniel Brubaker, a member of the Postal Service Inspection Service, submitted a declaration as well.

The Postal Service also filed a response to the court’s Nov. 3 order, which provides a narrative of the actions of the Postal Inspection Service on election day, the sweeps of processing plants that took place, and an explanation of why the Postal Service was not able to comply entirely with the court’s order. In addition, the Postal Service filed a summary of information learned from plant managers as required by the court’s order on Nov. 3.

For more about the hearing and where things stand, check out these articles:

November 4, 2020

There was a flurry of activity in Judge Sullivan’s court yesterday, as you can tell by reading the morning and afternoon updates below.  Things heated up further as the day went on.  Jacob Bogage and Christopher Ingraham have an excellent article in the Washington Post summarizing yesterday’s developments.

Following Sullivan’s Minute Order requiring inspectors to sweep some facilities (see yesterday afternoon’s update below), the Justice Department attorneys representing the Postal Service filed a response just before 5 p.m. saying the Postal Service would not be able to abide by the order.

The Postal Service explained that the daily review process was already scheduled to occur from 4 to 8 p.m. on election night. “Given the time constraints set by this Court’s order, and the fact that Postal Inspectors operate on a nationwide basis, Defendants were unable to accelerate the daily review process to run from 12:30 pm to 3:00 pm without significantly disrupting preexisting activities on the day of the Election, something which Defendants did not understand the Court to invite or require.”

The Postal Service’s response goes on to explain that “Inspectors do not themselves resolve identified deficiencies, but rather discuss those deficiencies they do identify with facility managers for those managers to resolve as expeditiously as possible. The Inspectors can thus only certify that any deficiencies—which could include Election Mail in staging and non-staging areas—have been identified and referred.” The DOJ attorney wrote that the inspection process “is now ongoing, and has been since 4pm local time.”

The response also indicates that “the Postal Inspection Service is or shortly will be conducting observations of 220 facilities for potential incidents involving Election Mail, to include reviewing staging and non-staging areas for ballots. These include processing facilities in the Central Pennsylvania, Philadelphia, Detroit, Colorado/Wyoming, Atlanta, Houston, Alabama, Northern New England, Greater South Carolina, South Florida, Lakeland, and Arizona Districts. Any identified deficiencies will be reported to facility management for resolution. Inspectors will be in the identified Postal facilities throughout the evening.”

The Postal Service, writes the DOJ, is “working as expeditiously as possible to comply with this Court’s orders while recognizing physical and operational limitations and the need to avoid disrupting key activities on Election Day.”

Allison Zieve, an attorney representing the NAACP, said (as quoted in the Post article),  “This is super frustrating, If they get all the sweeps done today in time, it doesn’t matter if they flouted the judge’s order. They say here they will get the sweeps done between 4 p.m. and 8 p.m., but 8 p.m. is too late, and in some states 5 p.m. is too late.”

After seeing the Postal Service’s response, the plaintiffs asked for an immediate status conference. Then Judge Sullivan issued another Minute Order denying that request, stating the following: The Court understands that “‘all clears’ [or facility sweeps] and successful certifications were conducted at all processing plants this morning by 10 am local time” pursuant to this Court’s previous orders. The Court further understands that Postal Inspectors are/will be on site at each processing plant between 4:00 PM and 8:00 PM local time today to conduct the “daily review process” designed “to ensure compliance at the critical period before the polls close.” The Court understands “compliance” to mean that the Inspectors will at that time identify and refer Election Mail in staging and non-staging areas to facility managers to resolve as expeditiously as possible. Given the timing, the Court is inclined to let this process continue. Accordingly, the Court DENIES Plaintiff’s request for an immediate status conference. Defendants shall be prepared to discuss the apparent lack of compliance with the Court’s order at the status conference scheduled for 12:00 PM on November 4, 2020.”

November 3, 2020

Afternoon update: The plaintiffs filed a Motion for Further Relief stating, “Given that Election Day is now upon us, Plaintiffs submit that further relief is necessary to ensure that all ballots in USPS’s possession are delivered in a timely manner.” The Motion includes a proposed order. Judge Sullivan adopted most of this proposed order in his “Minute Order” stating the following:

“Beginning no later than 12:30 PM EST today, Defendants shall send Postal Service inspectors or their designees, to processing facilities in the following Districts and direct them to sweep the facilities between 12:30 PM EST and 3:00 PM EST to ensure that no ballots have been held up and that any identified ballots are immediately sent out for delivery: Central Pennsylvania, Philadelphia, Detroit, Colorado/Wyoming, Atlanta, Houston, Alabama, Northern New England, Greater South Carolina, South Florida, Lakeland, and Arizona.

“Alternatively, Defendants may satisfy this paragraph if inspectors from the USPS Office of Inspector General (“OIG”) are available to oversee the sweep of processing facilities described in the previous sentence.

“No later than 4:30 PM EST today, Defendants shall file a status update certifying compliance with this paragraph upon confirming, in the most efficient manner available, that sweeps were conducted and that no ballots were left behind. To be clear, the inspectors themselves need not provide any certifications to the Court.

“It is FURTHER ORDERED that by no later than 4:30 PM EST today, Defendants shall identify the 27 processing centers at which the OIG was onsite and the list of facilities that the Postal Inspectors have observed since October 19, 2020, unless OIG raises an objection to the identification of these sites.”

The Postal Service has provided a more detailed explanation for the Election Mail processing scores, one of the main subjects in yesterday’s hearing with Judge Sullivan. The explanation document is here. Since it’s a matter of some importance, here’s the full text of this document:

“First, as Defendants have explained, the daily processing scores do not include ballots that are turned around in local delivery units, which are delivered the same day with a near 100% success rate. In all processing plants, extraordinary measures have been put into place, as set forth in the testimony and Extraordinary Measures memorandum referenced above. While the Postal Service’s measurement system was approved by the Postal Regulatory Commission, and the service-performance data is accurate (and has been validated by third-party auditors) for purposes of quarterly reporting, the daily District data for ballots that are being reported pursuant to federal court orders do not provide a representatively accurate measurement of the Postal Service’s service performance for Election Mail.

“Second, as noted previously, only a subset of ballots is capable of being tracked (i.e., those identified by IMB or STIDs).

“Third, many ballots are not be captured by the Postal Service’s measurement system, even if they could be tracked. The system tracks the performance of ballots within the operational network, and specifically the time between a mailpiece’s first and last processing scan. As noted, because of the extraordinary measures that USPS has implemented, many delivery units have arranged for a “local turnaround” of ballots so that ballots are delivered locally, without ever entering the processing operation. Even for ballots that enter the processing operations, many receive a special sort to expedite delivery, and thereby do not receive a last processing scan that would allow them to be captured by the performance scores. In short, the scores are not representative because USPS’ extraordinary measures, which expedite delivery, are resulting in ballots not being captured by its service-performance data.

“Fourth, processing scores are calculated and measured when the last processing event is seen on the equipment and not against the date in which the mail was entered. As mail in the system tapers off and late pieces from prior higher volume days arrive at their destination, the processing scores are impacted, often negatively. Put another way, processing scores as a measurement for a particular mailing with volume that spikes and declines (as is typical for outbound and inbound ballots) is not representative of processing performance due to what the Postal Service refers to as the “tail of the mail.” The score is measured when the mailpiece receives the last processing scan, so that as time moves on, the scores will decline towards zero as the only pieces remaining in the system are the failures. A more representative assessment of the processing score for ballots by District would consider all ballots measured for the duration of the election season. [“Tail of the mail” refers to “residual mail remaining after the completion of a presort sequence (e.g., 5-digit, 3-digit, then ADC) that lacks sufficient volume to meet presort and container requirements for the sort levels in that sequence.”]

“Fifth, the volume of ballots measured on any particular day is often too small to be statistically significant. For example, if there are 5 ballots that fail to meet their standard, but 100 ballots total, the processing score will be significantly different than if there are 5 ballots that fail to meet their standard, but only 10 ballots in total. As the denominator decreases, as would be expected with ballots, the processing scores will continue to go down.

“In summary, the daily data provided is unreliable for a number of reasons. Nonetheless, the Postal Service is in touch with the facilities identified above [that would be Colorado/Wyoming, Central Pennsylvania, Detroit, and Greater Michigan for the Nov. 3 report] and others to ensure that extraordinary measures are being implemented to expeditiously move the mail.”

Morning update: Pursuant to the Court’s October 30, 2020 Order in NAACP (and Vote Forward and Richardson), the Postal Service has provided the Court with “a document explaining, for each USPS District whose Election Mail processing scores for Inbound Ballots were below 90 percent on October 30, 2020 and October 31, 2020, or below 80 percent on October 31, 2020,1 Defendants’ understanding, based on all reasonably available information, of potential explanations for the current level of service and any corrective measures that are now being implemented.” There were 11 districts where this threshold applied.

The explanations for the low scores in these districts include, as with previous explanation documents like this, Covid-19, employee availability, and the fact that “service scores in this district do not include ballots that are turned around in local delivery units, which are delivered the same day with a near 100% success rate.” As discussed in the Nov. 2 hearing, the plaintiffs are not satisfied with these explanations, and a meeting with a USPS expert is expected soon.

There have been some new developments in the New York case.  Yesterday the Postal Service submitted its Reply In Support Of Defendants’ Cross-Motion For Summary Judgment and Defendants’ Reply To Counter-Statement Of Material Facts. The Reply brief lays out the Postal Service’s case in much the same manner it has done in previous briefs, e.g., arguing that the Court lacks jurisdiction over when a PRC advisory opinion is required. The second document does the side-by-side review of the facts in the case, so it’s a useful summary of where the parties agree and disagree.

The filings in New York yesterday also include the USPS memo on Extraordinary Measures – Return Ballot Mail Processing Policy for the last week of the 2020 Election, which includes the processing and clearance expectations on Sunday, November 1 through Tuesday, November 3.

November 2, 2020

Afternoon update: At a hearing this afternoon (Nov. 2), Judge Sullivan conferred with counsel for the government and plaintiffs in NAACP, Richardson and Vote Forward. Much of the hearing focused on the those districts where processing scores for ballots have been unusually low. What’s causing the problems in these districts?

The Postal Service has offered several explanations (as required by the court) for these “under-performing” districts and plants, including bad weather and employee availability. The plaintiffs have found that some explanations are not very helpful — “not really an explanation at all,” as the plantiffs’ attorney put it. One such explanation is that “service scores in this district do not include ballots that are turned around in local delivery units, which are delivered the same day.”

This doesn’t really address the issue of why some processing scores would be low. Ballots that were turned around locally would not have arrived at the plant in the first place, so they would not have been scanned in at the plant and therefore not show up in the plant’s processing score at all. The issue, rather, is ballots that were scanned in but not out.

The attorney for the government explained that some ballots are not being scanned on exit because of the “extraordinary measures” being used to expedite election mail. These measures are explained in several USPS memos and press releases, including Extraordinary Measures – Return Ballot Mail Processing Policy for the last week of the 2020 Election; an Oct. 30 press release; an October 20 memo, and the measures discussed below in our “morning update” for Nov. 2 and in the update for Nov. 1. These measures apparently include transporting some ballots directly from the USPS processing center to the election center rather than to a local post office, which skips the exit scan. It’s a helpful practice and been used before.

The plaintiffs’ attorney was not entirely satisfied with this explanation, and the plaintiffs asked for a meeting with someone from the Postal Service to help clarify the issue. In particular, there’s concern that the Postal Service is not providing data on how many ballots are actually going directly to the election centers as opposed to being left behind somewhere in the plant.  As it stands, there are about 300,000 ballots that the Postal Service can’t really account for as having left the plants — they have an entry scan but no exit scan.

The plaintiffs also want the Postal Service to be prepared to share complete counts of ballots that were postmarked properly prior to election day and that should have been delivered by election day but were delivered after that. This is particularly important in four states: North Carolina, New Jersey, Minnesota, and Pennsylvania. Presumably this data would be important in post-election litigation.

Also revealed in the hearing was the fact that members of the USPS Office of Inspector General and the U.S. Postal Inspection Service are providing an oversight role in the processing plants. This was an idea suggested in a Politico article back in September by Michael Ravnitzky, former chief counsel and special assistant to the chairman of the PRC, and Kevin Kosar, a resident scholar at the American Enterprise Institute. There didn’t appear to be much of an official response to their proposal, so it was interesting to learn that the Postal Service had actually followed up on it.

Judge Sullivan concluded the hearing on a reflective note, observing that he’d read that an astronaut was able to vote seamlessly from outer space while here on earth we’re dealing with problems like states having different laws for postmarks and ballot deadlines. Congress, Sullivan opined, should address this problem so there’s a consistent set of rules for all the states.

Morning update: In NAACP, Judge Emmet Sullivan has issued further orders to ensure the timely delivery of ballots. Similar orders will probably be issued in Richardson and Vote Forward, over which Sullivan is also presiding. (The proposed order in Richardson is the same as in NAACP.) Here is the text of the order issued yesterday:

1. Forthwith and no later than 9:00 m. today, the Postal Service shall redistribute to all Division Directors and Plant Managers the “Extraordinary Measures – Return Ballot Mail Processing Policy,” dated October 28, 2020, which provided specific guidance in administering and managing Mail Processing for the last week of the 2020 Election.

a. When recirculating the policy, the Postal Service shall indicate that it is doing so to reiterate that all processing facilities must abide by the requirements of that policy to expedite the treatment of ballots, and that it is recirculating this policy at the instruction of a federal district court.

b. The Postal Service shall also reinforce its instruction that the identified “special procedures must be put in place to ensure we deliver eve1y ballot possible by the cutoff time on Election Day (except in Louisiana, where ballots should be delivered by Monday, November 2). This instruction applies even in “postmarking” states that may allow for later delivery.”

c. USPS shall use the Express Mail Network on Monday, Tuesday, and after Election Day to expedite ballots out of local service area to ensure timely delivery of ballots, unless there is a faster surface option through existing transportation.

d. The Postal Service shall also reinforce that all ballots with a local destination must be cleared and processed on the same day or no later than the next morning for delivery to local offices, from now through at least November 7, 2020 and, if operationally necessary for timely mail delivery by the relevant state deadline, up through the final deadline for mail ballot receipt in each state.

e. The Postal Service shall also reinforce that upon entry, all origin processing plants must apply a legible postmark to eve1y ballot reflecting the date the ballot was collected if it does not already have one.

f. The Postal Service shall also note that the chart attached to the policy has been replaced by the “State Deadlines for Return Delivery of Mail Ballots” chart attached to this Order as Exhibit 1.

g. USPS shall issue a targeted written communication, and make all reasonable efforts to orally convey, to Division Directors and Plant Managers that serve Minnesota, New Jersey, North Carolina, and Pennsylvania that the chart of state deadlines distributed on October 28 has been replaced with the document attached as Exhibit 1; reiterating the importance of processing all election ballots in these states by the “Election Day Deadline;” and reiterating that they should rely on the extended deadline only for ballots that come into their possession after Election Day.

2. In addition to the daily “all clear” certification, Plant Managers are required to certify by 10:00 AM local time on Monday, November 2, 2020, that the ballot mail is clear to the delivery office and/or local pickup per the special Sunday processing

3. In addition, Plant Managers are required to certify by 10:00 AM local time on Monday, November 2, 2020 and Tuesday, November 3, 2020 that they have complied with the measures identified in paragraphs c and 1.d above.

4. Postal Service management shall make all reasonable efforts to convey orally the requirements in paragraphs 1 and 2 of this Order to the relevant managerial and supervisory personnel in the following Districts as soon as practicable following the issuance of this order: Greater Carolina, Greensboro, Houston, Mid-Carolinas, Central Pennsylvania, Kentuckiana, Detroit, Greater Indiana, Northern New England, Colorado/Wyoming, Greater Michigan, Oklahoma, and Philadelphia Metropolitan.

5. No later than 9:00 m. tomorrow, the Postal Service shall distribute to all local offices a written communication reiterating the following Postal Service policy: Every election ballot that is not sent to a processing facility must be postmarked or cancelled at the Post Office or local delivery unit, regardless of the postage payment method or indicia on the mailpieces. This includes any ballots that are stamped, metered, permitted, Business Reply Mail, Qualified Business Reply Mail, Courtesy Reply Mail, Postage Validation Imprinter (PVI) labeled postage, Self-Service Kiosk (SSK) labeled postage, and any other method of paying postage. Even short paid ballots and ballots without postage must be postmarked (postage collection will happen later).

6. USPS shall continue to make all reasonable efforts to ensure retail facilities are complying with the October 20, 2020 Retail and Delivery Extraordinary Measures memorandum (ECF 33-11), including the provisions related to postmarking, and the October 30, 2020 Order of the Court, and that processing facilities and local offices are complying with this Order.

The chart accompanying the order, which shows the state deadlines for returning ballots, is here. 

November 1, 2020

(For the latest on service performance reports, see our other update page here.)

In Washington, the Court issued an order on Oct. 30 requiring the Postal Service to take several steps to ensure the timely delivery of ballots.  The order follows discussion of a proposed order; the minutes indicate that the Postal Service argued that it is already doing most of these things or it is being monitored by other judges, particularly by Judge Emmet Sullivan.

The Washington order requires that from Nov. 1 to Nov. 10 the Postal Service report the prior day’s “all clear” status for each facility and processing center in the Detroit and Lakeland Districts. If USPS identifies any incoming ballots in its “all clear” processes in these facilities, it shall make every effort to deliver those ballots by 8:00 PM local time on Election Day as required by Michigan and Wisconsin law, including by using Priority Mail Express and/or other extraordinary measures. If USPS identifies any outgoing ballots in its “all clear” processes in these facilities between the date of this order and November 1, 2020, it shall make every effort to deliver those ballots to voters on or before November 2, 2020, including by using Priority Mail Express or other extraordinary measures.

The Washington order also says counsel for the plaintiffs “shall have reasonable access to USPS facilities to monitor compliance with the Court’s orders. The parties’ counsel shall attempt to reach agreement on any inspection requests.”

In three cases being presided over by Judge Sullivan — Richardson, NAACP and Vote Forward — the plaintiffs have been working on a new proposed order that requires the Postal Service to take further steps to ensure the timely delivery of ballots. In Vote Forward, the Postal Service filed comments opposing this proposal, and the plaintiffs replied with another brief in support of it. In NAACP, the Postal Service filed a similar response opposing the proposal, saying, “Upon initial review, the Proposed Order, as written, requires (or can be read to require) USPS to implement new measures just two days before the November 2020 election, which would be operationally impractical and would risk confusion and delays to ballot mail. Thus, USPS respectfully requests that the Court refrain from entering Plaintiffs’ Proposed Order.”

Those “all clear” reports, as explained in the proposed order, refer to the way personnel in processing or delivery units use a checklist to confirm that mail scheduled or “committed” to go out that day has gone out, and anything committed for the next day is at the front of the line. For Election Mail, personnel check the logs and all locations within the facility to ensure that all pieces of Election Mail in the facility’s possession are in the proper location (either already sent out for delivery or further processing, or at the front of the line for the next day). The “clear report” report filed in Jones on Oct. 30 is here.

In Vote Forward, Judge Sullivan has accepted the proposal and issued an order containing most of the proposal. He will presumably do the same in Richardson and NAACP. Here’s the wording of the proposed order in NAACP:

  1. All processing facilities “shall undertake the extraordinary measures identified by USPS management to ensure that all mail identifiable as Election Mail that arrives at an originating plant is immediately identified, postmarked, and processed on an expedited basis so that (a) Election Mail that has a destination in the same District is transported to local delivery units the same day or, at the latest, by the next morning, and (b) Election Mail that has a destination in a different District is processed as Express Mail.”
  2. “All processing facilities shall provide to USPS management a daily certification by 10:00 a.m. that all Election Mail received on the previous day has been identified, postmarked, and processed on an expedited basis as set forth in paragraph 1, and that they have swept their facility to ensure that no Election Mail has been left behind.”
  3. “Within an hour of the issuance of this Order, Defendants shall issue a written communication to managers at all processing facilities that (a) reiterates the mandatory requirements identified in paragraph 1, noting that they are now also required by a Court order, and (b) identifies the certification requirement set forth in paragraph 2. Defendants shall file this written communication on the docket.
  4. USPS management “shall make all reasonable efforts to convey orally the requirements in paragraphs 1 and 2 of this Order to the relevant managerial and supervisory personnel in the following Districts by 10:00 p.m. on October 31, 2020: Greater S. Carolina, Greensboro, Mid-Carolinas, Central Pennsylvania, Kentuckiana, Detroit, Greater Indiana, Northern New England, Colorado/Wyoming, Greater Michigan, Oklahoma, and Philadelphia Metropolitan.”
  5. Consistent with the October 20 memorandum issued by USPS entitled “Extraordinary Measures” a) All USPS retail offices in the following jurisdictions, and any other states that have deadlines for receipt of an election ballot that depend on a postmark date, shall establish a dedicated process for postmarking all Election Mail (including but not limited to the options identified in the October 20 memorandum), regardless of the method of payment of postage used, on November 2 and November 3 (see the order’s list of the the states where this applies); b) All USPS local delivery units in the following states shall promptly postmark all Election Mail upon collection, regardless of the method of payment of postage used, collected on November 2 and November 3 (see the order’s list of the the states where this applies).
  6. By 10:00 a.m. on November 1, Defendants shall issue a written communication to managers at all retail offices and local delivery units that identifies the requirements set forth in paragraph 4 and states that they are mandatory, pursuant to a Court order. Defendants shall file this written communication on the docket.
  7. Defendants shall make all reasonable efforts to ensure that individual delivery units are complying with the Court’s October 30 order regarding the use of “Extraordinary Measures” in certain Districts, and that all relevant USPS facilities are complying with this Order. Counsel for Defendants shall provide a report to the Court at each daily hearing of the steps taken to ensure compliance and the status of compliance efforts.

Also in NAACP, the Postal Service has filed a notice stating, “Pursuant to the Court’s October 30, 2020 Order, Defendants provide the Court with a document explaining, for each USPS District whose Election Mail processing scores for Inbound Ballots were below 90 percent on each of the previous two days or below 80 percent on the previous day, Defendants’ understanding, based on all reasonably available information, of potential explanations for the current level of service and any corrective measures that are now being implemented.” The explanations vary, including ice and snow in Oklahoma, Colorado, and Wyoming; employee unavailability in Detroit and Central PA; and the fact that service scores in some districts do not include ballots that are turned around in local delivery units, which are delivered the same day.

The update on overtime hours submitted in Pennsylvania on Oct. 30 indicates that employees are putting in a lot of overtime. The following table shows overtime hours for the week of Oct. 23. The overall average of 20.2 percent of total workhours is about twice as much as normal, about 11 percent.

Overtime Hours October 23, 2020 – October 29, 2020

October 31, 2020

We’re now reporting on the service performance reports being submitted in several of the cases on a separate updates page, here.

One noteworthy development in connection with these reports: On Oct. 30, Judge Emmet Sullivan, presiding in NAACP, issued a new order on Oct. 30 requiring the Postal Service to provide additional materials about service performance.

The order identifies numerous districts where Election Mail processing scores for completed ballots returned by voters (Inbound Ballots) were below 90 percent for at least two days from October 26 to 28. For these district, the Postal Service “shall implement the ‘Delivery’ measures outlined in USPS’s “Extraordinary Measures Memorandum” dated October 20, 2020 unless the implementation of any of the extraordinary measures, at a district or facility level, would create a significant risk of reducing the timely delivery of Inbound Ballots.”

Sullivan’s order also requires the Postal Service to provide data from the nationwide survey of “extraordinary measures” being undertaken for Election Mail at USPS facilities, as it becomes available during the day on October 30, 2020. For each District whose Election Mail processing scores for Inbound Ballots were below 90 percent on each of the previous two days or below 80 percent on the previous day, the Postal Service must provide an explanation (which turns out to be employee availability statistics). The order also requires the Postal Service to provide data on the absolute number of Inbound Ballots and Outbound Ballots captured in the Election Mail processing scores data. The Postal Service is also being asked to provide a representative with expertise in the data processing scores for Election Mail to answer questions from the parties and the Court about the data.

October 30, 2020

The Postal Service has filed the third of the daily reports that it agreed to submit as part of the Joint Order from the courts in Richardson, Vote Forward, and NAACP.  You can find all of these daily reports here. If you’re reviewing the numbers, it’s a good idea to read the notice that explains the reports.

The report on election mail shows a processing score (not end to end) for inbound ballots (those that are sent by voters to elections offices) of 95.21 percent for Oct. 29, down from 97.08 percent the previous day, and 93.84 percent for outbound ballots (sent from election centers to voters), down from 96.76 percent the previous day.

The report on service performance shows a processing score of 88.8 percent for First Class for Oct. 29, up from 78.24 percent the day before. The report on late and extra trips shows a slight uptick in the number of such trips, but it’s only slight and there’s not much evidence that rescinding the Cintron Guidelines on transportation has had much of an effect.

In the United Healthcare Workers case in Florida, the court has directed the Postal Service to “ensure that every county in Florida will implement a hub-and-spoke plan for November 2, 2020 and November 3, 2020, in order to route ballots in the mail stream within or near the destination county directly to the destinating county Supervisor of Elections.” In other words, the ballots won’t be send to “far-flung” sorting facilities for processing.

In National Urban League, Judge George L. Russell, III has issued an order denying the plaintiffs’ Motion for Preliminary Injunction. As Judge Russell explains, there have been motions for injunctions in eight other related cases that “have set forth exhaustive analyses of the merits of the claims advanced by the plaintiffs in those actions, which largely subsume the claims advanced by Plaintiffs here.”

Judge Russell adopts many aspects of the analysis in those cases, but he has determined that the plaintiffs in this action have not established that they are “likely to suffer irreparable harm in the absence of preliminary relief.” That’s because the Postal Service is “already subject to seven separate preliminary injunctions and one settlement agreement relating to the DeJoy Policy Changes. The combined scope of those injunctions is broad and appears to encompass substantially all of the relief Plaintiffs sought in their original Motion.”

The Courts’ order in Urban League is also noteworthy because it provides a very useful and detailed summary of the eight related cases and the seven preliminary injunctions that have been issued so far.

In New York v Trump, the plaintiffs have filed a brief opposing the Postal Service’s motion for a summary judgment. The plaintiffs review the arguments they’ve made previously: DeJoy’s policy changes violate 39 U.S.C. § 3661 because the Postal Service did not seek an advisory opinion, they violate the Postal Reorganization Act (section 101 and 403), and they violate the Elections Clause of the Constitution.

The plaintiffs state that the Postal Service attempts “to disavow their policy changes and wave away the resulting chaos, but the factual record refutes their down-is-up approach—the Postal Service drastically changed postal operations without the due consideration required by the governing statutory scheme. Tellingly, Defendants offer no written analysis, advisory opinion, or any contemporaneous documentation evaluating the impact of their radical policy changes.”

In support of their brief, the plaintiffs in New York have submitted their counter-statement of the facts in the case, which provides a side-by-side comparison of the Postal Service’s version of the facts and the plaintiffs’ “admit” or “deny” of those facts. If you join this counter-statement with the Postal Service’s counter-statement of the facts as presented on Oct. 28, you’ll have a good overview of how each side is presenting the facts of the case.

In Jones, an APWU official has submitted a letter claiming that the Postal Service is in violation of the court’s order because not all of the sorting machines that had been removed have been returned to service. The Postal Service has replied by saying, “This Court has not ordered any relief relating to mail processing machines.… While some courts handling recent cases challenging USPS policies and practices have entered relief pertaining to mail processing machines, no court has ordered that each and every previously disconnected machine be reconnected.”

October 29, 2020

The Postal Service has filed the second of the daily reports that it agreed to submit as part of the Joint Order from the courts in Richardson, Vote Forward, and NAACP.  You can find all of these daily reports here. If you’re reviewing the numbers, it’s a good idea to read the cover letter that explains the reports.

One number that jumps right out of the report on First Class service performance is the score for the week of Oct. 17, the most recent of the weekly reports. For that week, only 83.26 percent of First Class mail was processed on time.

But it turns out that the score for that week was actually even lower. According to a USPS press release today, “Due to an increase in overall mail volume of all types, COVID-19 impacts, the Oct. 12 federal holiday and ongoing efforts to prioritize and advance the nation’s ballots, First-Class Mail service performance was 80.85 percent for the week of Oct. 17 through Oct. 23.”

Here’s a chart showing First Class service performance since June, based on the reports submitted in Jones v USPS through Oct. 10, plus today’s press release for the week of Oct. 17. Things don’t seem to be heading in the right direction. That score of 80.85 percent for the week of Oct. 17 is the lowest of the year, even worse than when operational changes caused scores to plummet in July.

Before making too much of today’s reports in NAACP, it’s important to note, as the Postal Service explains in the cover letter, that the data is “incomplete, subject to change, and overall, is not an accurate representation of the Postal Service’s performance, for several reasons.” Among them is that today’s scores are only about the performance of mail within the Postal Service’s operational network and don’t include First and Last Mile. That’s probably why the press release and NAACP report have different scores for the week of Oct. 17.

There have been other inconsistencies as well. In the report submitted for Jones, the score for First Class for the week of Oct. 3 was 86.15 percent, and for the week of Oct. 10, 85.58 percent. In the report submitted today in NAACP, the score for First Class for the week of Oct. 3 was 88.76 percent, and for the week of Oct 10, 88.75 percent. Again, that may be because the NAACP scores are for the processing phase of operations while the Jones numbers are end-to-end.

There was also a discrepancy between the Jones numbers and scores reported to the PRC a few weeks ago, as I noted in a motion to the PRC pointing this out. The Postal Service explained that this discrepancy was due to the fact that the numbers were extracted from the database at different times.

Today’s numbers for election mail are better than the overall scores for First Class, but it’s hard to know what to make of them because the Postal Service has attached even more caveats and disclaimers to these numbers. But here are national numbers from this morning’s report:

According to an article in Government Executive, the Postal Service, in addition to submitting the daily reports, is meeting daily with the plaintiffs in the NAACP suit and presiding Judge Emmet Sullivan to go over operational and performance data.

October 28, 2020

This morning, the Postal Service filed the first of the daily reports that it agreed to file as part of the Joint Order from the courts in Richardson, Vote Forward, and NAACP yesterday. Here are the reports:

In New York v Trump, the Postal Service filed two important documents yesterday. The first is its “Counter-Statement of Disputed Facts.” This document is a table that goes through each of the facts set forth by the plaintiffs, along with a response accepting or denying the facts and the reason for denial. This is a handy document for seeing both sides of the story, at least with respects to the facts of the case.

The second is the Postal Service’s memorandum opposing the plaintiffs’ motion for summary judgement. This document contains most of the legal arguments that the Postal Service has been raising in most of the cases, namely:  The Court lacks jurisdiction over Plaintiffs’ claims with regard to 39 U.S.C. § 3661 (the advisory opinion statute), and the plaintiffs lack a “private right of action” to bring a section 3661 claim; both of the same hold true for claims under 39 U.S.C. §§ 101 and 403 (; Plaintiffs cannot establish an Elections Clause claim; and (and this one is very technical but significant) the “plaintiffs cannot demonstrate entitlement to relief under the ultra vires doctrine.”

October 27, 2020

There’s lots to catch up on in all the lawsuits, but first, the big news of the day: In three of the cases — Richardson, Vote Forward, and NAACP — the parties have agreed to a “Joint Proposed Order” that responds to the Plaintiffs’ Emergency Motion to Enforce and Monitor Compliance with Preliminary Injunction. According to this order, the Postal Service has agreed to rescind the Cintron Guidelines issued on July 14, 2020, regarding late and extra trips.

These are the transportation guidelines drawn up by Vice Present of Logistics Robert Cintron on July 11. The goal of these Guidelines was to clarify instructions to the AVPs about the new operational policies, which were being shared in teleconferences on June 26, July 7, and particularly on July 10. While not explicitly banning late or extra trips, the Cintron Guidelines mirrored Headquarters’ emphasis on sharply restricting approval for these trips “to eliminate unplanned extra transportation” and to ensure that “trips must depart on time.”

As recently as October 15, Cintron had testified that his guidelines were still in effect and had not been rescinded. This, apparently, was the reason why the frequency of such trips from processing centers was far below its pre-July levels. There was concern among the plaintiffs that this was the reason on-time service performance has remained well below their own pre-July levels (as discussed in this previous post).

The joint agreement says that the Cintron guidelines have been rescinded, and “USPS personnel are instructed to perform late and extra trips to the maximum extent necessary to increase on-time mail deliveries, particularly for Election Mail. To be clear, late and extra trips should be performed to the same or greater degree than they were performed prior to July 2020 when doing so would increase on-time mail deliveries. Any prior communication that is inconsistent with this instruction should be disregarded.”

The order also states that by 9 a.m. on October 29, the Postal Service “shall issue a one-page notice to, or deliver a Stand-Up Talk to, all USPS personnel who may have job responsibilities related in any way to late and extra trip” stating exactly that.

There’s still some disagreement about whether the SUT should also state, “To be clear, late and extra trips will be approved to the same or greater degree than they were performed prior to July 2020 when doing so would increase on-time mail deliveries.” That is probably the reason the order is titled “Joint Proposed Order.”

According to the joint order, the Postal Service also agreed to increase the frequency and details in the reporting it’s been doing. The Postal Service will now file daily reports with “updated data on the number of extra and late trips performed the preceding day, at the Nation, Area, and District level, including any available data that is specific to Election Mail, to the maximum extent feasible; (b) updated data on the percentage of on-time deliveries at the Nation, Area, and District level, including any available data that is specific to Election Mail to the maximum extent feasible.” This represents a considerable increase in the frequency of the reporting — daily rather than weekly — and  it’s also more granular, since the Postal Service will now report on district level numbers rather than just the national numbers for late/extra trips and Election Mail on-time performance.

The Postal Service will also distribute “a list of state-specific statutory ballot receipt deadlines, so that USPS managers and employees can implement the Election Mail guidance that Defendants have recently issued.”

October 24, 2020

Judge Emmet Sullivan has issued an order in New York v Trump clarifying the preliminary injunction. The order states: “if any post office, distribution center, or other postal facility will be unable to process Election Mail for the November 2020 election in accordance with First Class delivery standards because of USPS’s removal and decommissioning of sorting machines from service, available processing equipment will be restored to service to ensure that USPS can comply with its prior policy of delivering Election Mail in accordance with First Class delivery standards.”

There’s an article on The Hill about this order with the headline “Judge orders Postal Service to restore high-speed mail sorting machines.” That is clearly not what Sullivan’s order states, and the article itself indicates that the machines must be restored if the Postal Service cannot process Election Mail in accordance with delivery standards.

October 22, 2020

Judge McHugh has rejected the plaintiffs’ request to assign a independent monitor in Pennsylvania v DeJoy.

October 20, 2020

The plaintiffs in Pennsylvania v DeJoy have asked the court to assign former Inspector General and Board of Governor member David C. Williams to be a special monitor. The plaintiffs in argue that “the appointment of an independent monitor who is familiar with the Postal Service’s operations is both appropriate and necessary to ensure Defendants’ compliance with the injunction in this case and to enable the Postal Service to improve its performance.”

In a second letter on the issue, the plaintiffs state, “Plaintiffs have no interest in subjecting USPS to unnecessary oversight. And if service had truly improved following this Court’s injunction, they would not have made this request for a monitor. But it has not, and USPS’s failures at least raise serious concerns about whether the changes implemented in July have truly been rolled back.” The USPS has filed a letter opposing the request.

The plaintiffs in New York v USPS have filed a motion to expedite their lawsuit.

October 18, 2020

In National Urban League v DeJoy, the Postal Service has submitted its opposition to the motion for a preliminary injunction. The Postal Service states, “Plaintiffs’ motion for preliminary injunction presents the Court with a proposed “solution” for issues that have been squarely resolved, both by USPS’s own actions and its response to orders of various courts across the country in related cases. Both before and after the filing of Plaintiffs’ Complaint, USPS has repeatedly made its commitment to the timely delivery of Election Mail clear and has issued substantive operational instructions and guidance in accordance with that commitment. With the November general election (“the Election”) a only a few weeks away, and with USPS already making every effort to support the election via its operations and to comply with numerous overlapping court orders entered across the country, Plaintiffs’ motion does nothing to prevent their purported injuries but risks sowing confusion and uncertainty that may disrupt USPS’s operations.”

The Postal Service points out that it has been getting ready for the election for months and that the volume of election mail, while expected to be larger than ever, is relatively small in the context of total volumes. The Postal Service reviews its regular practices for dealing with election mail and the new steps it’s taking this year. The agency continues to argue that the two documents widely cited as evidence that overtime and extra trips were being eliminated are not official policy. There’s a useful chart on page 41 reviewing which specific orders were given in the rulings on all the other cases.

In New York v Trump, the Postal Service has filed a reply brief regarding its motion for clarification. The Postal Service is “seeking to clarify that the order [for a preliminary injunction, already granted] does not require the Postal Service to take actions that are impracticable or even impossible, such as restoring machines that have already been removed or even dismantled; or that would risk severe disruption to the Postal Service’s operations, such as moving Election Mail sent as Marketing Mail by air, which would be a significant change how the Postal Service has processed this mail in past elections.”

October 17, 2020

Two important developments over the past couple of days: Service performance reports submitted in Jones show a decline in the on-time processing score for Election Mail, and the plaintiffs in Pennsylvania point to on-time performance issues as the basis for requesting the appointment of a special monitor.

In Jones, the Postal Service has submitted the weekly service performance reports for the week of Oct. 3, 2020. The report shows that 86.15 percent of First Class Mail was delivered on time. That’s up slightly from the previous week’s score of 85.97 percent, but it is far below the score of 92 percent for the same quarter last year. Perhaps more importantly, the Postal Service reports that for the week of Oct. 3 the processing score for Election Mail fell to 92.1 percent. That’s the lowest score of the four weeks for which the Postal Service has provided Election Mail data. The previous weekly scores were 97.9 percent for the week of Sept. 26; 97.2 percent for the week of Sept. 19; and 94.2 percent for the week of Sept. 12.  The Postal Service’s cover letter regarding these reports describes the limitations of this score, noting that “these figures may provide some insight about trends in service, the underlying numbers are subject to revision and change, once they are subjected to thorough validation.”  All the service performance reports submitted in Jones and through other venues (PRC, FOIA, etc.) can be found here.

The plaintiffs in Pennsylvania have asked the court to appoint former Inspector General David C. Williams to be a special monitor. The USPS has filed a letter opposing the request.  The plaintiffs argue that “a monitor is appropriate to ensure Defendants’ compliance with this Court’s preliminary injunction” because on-time service performance continues to be a problem. The most recent data released show that service is nearly three percentage points below where it was when this Court issued its injunction (only 85.97 percent of first-class mail was delivered on time during the week of September 26, 2020).

The plaintiffs are not satisfied with the Postal Service’s explanations for the low numbers, including Labor Day and the opening of the new Great Lakes and Chicago Surface Transfer Center. The plaintiffs also note that the Postal Service has adopted a new program (Dispatch of Value minus 60, or DOV-60) that changed the timing of how mail is processed in order to avoid late and extra trips by trucks. This initiative “appears to set a deadline for completing the sorting of mail into delivery point sequence (i.e., the delivery order for a carrier’s route) of 60 minutes before the dispatch of value, which is the last dispatch of the day that is loaded onto a truck in time to meet service standards. As a result, letter carriers are forced to complete sorting on their own, extending the time required to complete their routes.”

The Plaintiffs also note that “the use of late and extra trips by USPS is still at one-third to one-quarter of what it was prior to the illegal operational changes in July 2020. Defendants have offered no good reason as to why this number would still be so low, particularly given that they have been under order of this Court and a number of other courts to stop any prohibition on late/extra trips and have committed (and been ordered to commit) to authorizing and encouraging late trips for the delivery of Election Mail and other mail.”

In its letter opposing appointing Williams as election monitor, the Postal Service says, “Plaintiffs effectively ask this Court to amend its preliminary injunction by imposing the most onerous sanction on the Postal Service by any court to date. This request is unnecessary and impracticable and should be denied to avoid disruption on the eve of the election.” The Postal Service notes that the preliminary injunction “does not (and cannot) require that the Postal Service maintain any particular service performance score—a requirement that, even if practicable, would be unmoored to any legal claim.” The Postal Service also argues that the DOV-60 program does not violate anything in the injunction and there’s no evidence it has had any impact on service performance or mail being left behind. The Postal Service concludes by raising a number of questions about what the special monitor would be authorized to do, who would pay for him, who he would communicate with, and other practical matters.

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