USPS keeps ‘extraordinary measures’ for mail-in ballots in place through 2028 under lawsuit settlement

The Postal Service went through “extraordinary measures” to deliver mail-in ballots to voters and election boards on time in fall 2020. Now it’s agreed to continue with those practices for federal elections through at least 2028.

USPS on Friday reached a settlement with plaintiffs in a lawsuit that originally challenged the agency’s ability to deliver an unprecedented number of mail-in ballots for the 2020 presidential election.

Public Citizen, the National Association for the Advancement of Colored People and its Legal Defense Fund filed the lawsuit last year, which in particular took issue with USPS implementing “operational changes” ahead of the 2020 election.

Some of those changes, such as a push to reduce late and extra trucking trips between USPS processing plants and post offices, started under the tenure of Postmaster General Louis DeJoy, while others, such as the removal of blue mailboxes and equipment at processing facilities, began before DeJoy took office.

The Postal Service, as part of the settlement, acknowledges that it “anticipates utilizing its long-standing policies and practices reflected in its written guidance concerning the November 2020 election in the next upcoming national election for 2022.”

USPS agreed to publicly post on its website national guidance documents related to election mail next year, as well as in 2024, 2026 and 2028.

Meanwhile, USPS as part of the agreement also concedes that the details and specific policies that facilitated mail-in voting in 2020 “are subject to change to meet then-current circumstances.”

“For 2022, the national guidance documents will reflect the Postal Service’s good faith efforts to take measures similar in content to, and consistent with, the written guidance and extraordinary measures used in the November 2020 election. The parties acknowledge, however, that the Postal Service may make adjustments to those policies and that it is premature to state with specificity what, if any, changes may be made to the written guidance documents from the November 2020 election for the next national election cycle,” the settlement states.

The agency will post mail-in ballot guidance no later than Feb. 1 for federal primary elections, and will public post any new policies within one week of circulating them among USPS employees.
USPS agrees to publicly post those same guidance documents on its website no later than Oct. 1 for federal general elections.

“This agreement will not require the Postal Service to re-issue national guidance documents that are already in effect; however, if the Postal Service does not issue any new national guidance documents for an election cycle because otherwise extant national guidance documents are already in effect and posted online, it will note that fact publicly on its website,” the settlement states.

USPS General Counsel and Executive Vice President Thomas J. Marshall said the lawsuit settlement reflects the agency’s “steadfast commitment to fulfilling our vital role in the nation’s electoral process.”

“The Postal Service continues to believe that none of the Election Mail lawsuits were justified by the facts or supported by the applicable law. The Postal Service performed admirably in the 2020 General Election and would have done so regardless of the litigation. Nevertheless, we are pleased to resolve this case in a manner consistent with our longstanding policies and practices,” Marshall said.

Associate Attorney General Vanita Gupta said in a statement that the Justice Department “is pleased we could facilitate a resolution that reflects the commitment of all of the parties to appropriately handling and prioritizing election mail.”

“The right to vote and ability to access the ballot is the cornerstone of our democracy,” Gupta added.

Under the terms of the settlement, the Postal Service agreed to meet with NAACP in the months before each national primary and general election through 2028. The agency also agreed to provide weekly reports on service performance during the six weeks leading up to general elections.

NAACP said it expects these measures will be similar to the extraordinary measures the Postal Service used in the weeks leading up to the 2020 general election.

NAACP President Derrick Johnson called the settlement an “unprecedented victory for civil rights.”

“Ballot box or mailbox, a vote is a vote, and each vote is sacred. No one, including the USPS, should ever stand in the way of our constitutional rights. With the NAACP’s ability to now monitor the performance of the USPS during national elections, we will ensure that the right to vote is protected for of all citizens, including those often suppressed,” Johnson said.

Allison Zieve, director of Public Citizen Litigation Group, said the lawsuit filed last summer “had a significant impact on the timely delivery of mailed ballots.”

“Through this settlement, we are putting in place mechanisms to ensure that the Postal Service has procedures to handle election mail, to avoid the need for similar lawsuits every two years,” she said. “The settlement helps to guard against politicization of mail delivery and facilitates citizens’ ability to exercise the fundamental right to vote.”

USPS, however, continues to face criticism over recent cuts to service.

Attorneys general from 20 states and the District of Columbia, as well as the cities of New York and San Francisco, filed a complaint with the Postal Regulatory Commission this summer, urging USPS to abandon new service standards that have slowed the delivery of nearly 40% of first-class mail.

Attorneys said the new standard “sacrifices speed for reliability” and would slow delivery times for in-state mail, including election mail, in most states.

The PRC last Friday, however, dismissed a separate complaint filed by many of the same state AGs that requested the commission review a USPS 10-year reform plan in its entirety.

Through a combination of slower delivery standards, increased rates, new sources of revenue and bipartisan postal reform legislation, USPS under the reform plan expect to reverse more than a decade of net losses by 2030.

The commission, in its order, said that an advisory opinion “was not required on the entirety of the 10-Year Strategic Plan,” and that the complaint raised by the states “fails to raise any material issues of fact or law.”

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