USPS Can Deliver Ballots, Execs Testify In 'Slowdown' Case

Law360, New York (September 16, 2020, 5:46 PM EDT) -- U.S. Postal Service executives told a Manhattan federal judge Wednesday that carriers can handle extra mail during the October and November election season, after plaintiffs including a congressional candidate claimed President Donald Trump is planning a mail slowdown.

Their testimony came during a lengthy telephone hearing conducted by U.S. District Judge Victor Marrero, who is considering a request for an injunction that would block what plaintiffs from California, Illinois, New Jersey, New York Pennsylvania and Wisconsin – including Empire State Democratic House candidate Mondaire Jones – call an effort to keep ballots from being counted.

Judge Marrero said he would issue a ruling soon, but he offered few clues about which way he was leaning. He did lament the "cumbersome and challenging" process of taking testimony over the phone for hours at a time.

He is among federal judges in at least three states – including  Washington and Pennsylvania – and the District Of Columbia who are handling challenges to what plaintiffs call an effort by the Republican president and Postmaster General Louis DeJoy to downsize the postal service and retard the counting of mail-in ballots.

In the case before Judge Marrero, Jones and a proposed class of plaintiffs including New Jersey resident Diana Woody, who wants to vote by mail to shield herself from the dangers of COVID-19, are asking for an order directing the post office to ensure mail is delivered on time, approving overtime for carriers and blocking any changes planned by Trump and DeJoy that would "generally affect service" until after the Nov. 3 election.

Trump and DeJoy have "set about to ensure USPS cannot reliably deliver election mail" because Trump believes mail-in ballots are a "threat to his election," their suit says.

Judge Marrero did not compel DeJoy to appear for Wednesday's injunction hearing. But three post office executives – vice president of logistics Robert Cintron, vice president of retail and post office operations Angela Curtis and director of election season Justin Glass – all downplayed what many have called threats to their mail-in ballots.

Glass told Judge Marrero that the Postal Service expects to handle a maximum of about 700 million extra pieces of mail during the 2020 election season. He said that figure pales compared to the post office's ability to handle more than 2 billion pieces of mail in a peak holiday week.

"The Postal Service definitely recognizes the importance of election mail to the United States," Glass said. "The Postal Service has plenty of capacity."

Curtis addressed what she called an "appalling" instance from July in which a local post office manager told workers that overtime was off the table and that, rather than making late deliveries, carriers would wait for the next day.

"I haven't seen anything like that in 27 years of operational service," she said. "We want to operate on schedule."

The person who made that announcement has been demoted, Curtis said.

Cintron acknowledged that the coronavirus and, potentially, actions by the Trump administration over the summer including taking sorting machines offline, affected delivery rates. But he said the Postal Service is currently operating at or near normal capacity.

But one 33-year veteran Postal Service employee, Texas-based mail processing clerk Jose Barrios, told Judge Marrero that sorting machines have not been returned to service. He said his San Antonio facility has struggled with large volumes of undelivered mail.

"We're falling further and further behind," said Barrios, who says the service is cutting back on overtime and relying on inexperienced labor.

The plaintiffs are represented by J. Remy Green, Elena Cohen, Jessica Massimi and Jonathan Wallace of Cohen & Green PLLC and Ali Najmi of the Law Office of Ali Najmi.

The USPS, Trump and DeJoy are represented by Steven Kochevar and Rebecca Tinio of the U.S. Attorney's Office for the Southern District of New York.

The case is Jones et al v. United States Postal Service et al., case number 1:20-cv-06516, in the U.S. District Court for the Southern District of New York.

--Editing by Peter Rozovsky.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Jones et al v. United States Postal Service et al


Case Number

1:20-cv-06516

Court

New York Southern

Nature of Suit

Civil Rights: Voting

Judge

Victor Marrero

Date Filed

August 17, 2020

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