UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VOTE FORWARD, et al.,

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

Pending before the Court is Plaintiffs’ Second Motion for a

Preliminary Injunction. See Pls.’ Mem. Law Supp. Second Mot.

Prelim. Inj. (“Pl.’s Mot.”), ECF No. 175. 1 Upon consideration of

Plaintiffs’ motion, the response and the reply thereto, the

applicable law, and the entire record, the Court DENIES

Plaintiffs’ motion.

I. Background

A. Factual Background

1. The COVID-19 Pandemic

It is undisputed that the COVID-19 pandemic increased

reliance on mail delivered by the U.S. Postal Service (“USPS”)

during the November 2020 general election. See Pls.’ Mot., ECF

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 1 No. 175-1 at 9; Defs.’ Opp’n Pls.’ Second Mot. Prelim. Inj.

(“Defs.’ Opp’n”), ECF No. 177 at 15. At the time, several states

adjusted their election procedures to allow for all eligible

voters to vote by mail-in ballot in the November 2020 election,

resulting in approximately 83% of all eligible voters having the

opportunity to vote using this method. See Mem. Op., ECF No. 32

at 2. And many voters chose to do so: between September 1, 2020

through November 3, 2020 alone, USPS processed approximately 134

million Election Mail 2 pieces that had barcodes enabling

tracking. 3 See Audit Report: Service Performance of Election and

Political Mail During the November 2020 General Election, USPS

Off. of Inspector General (“USPS OIG Election Report”) at 3

(Mar. 5, 2021),

https://www.uspsoig.gov/sites/default/files/document-library-

files/2021/20-318-R21.pdf.

Since the November general election, millions of

individuals have received a dose of one of the COVID-19 vaccines

2 “Election Mail is any mailpiece that an authorized election official creates for voters participating in the election process and includes ballots and voter registration materials.” USPS OIG Election Report at 1. 3 The actual number is likely higher. “[E]lection boards

individually determine whether to integrate the use of barcodes in their mailing processes and . . . the Postal Service can currently only track the performance of processed mailpieces (i.e., sorted, transported, and delivered) if they have barcode mail tracking technology and receive required processing scans. The total number of ballots processed without a barcode is unknown.” USPS OIG Election Report at 1. 2 available in the United States, and their numbers are growing.

See COVID Data Tracker, Centers for Disease Control & Prevention

(last visited May 18, 2021), https://covid.cdc.gov/covid-data-

tracker/#datatracker-home. However, nationwide averages

regarding the number of new COVID-19 infections and the

nationwide COVID-19 death rate remain high—indeed, higher than

in September or October 2020 or August 2020, respectively. See

Pls.’ Mot., ECF No. 175-1 at 7-8. Plaintiffs assert that,

because of the continued prevalence and impact of the COVID-19

pandemic nationwide, voters’ reliance on using mail-in ballots

delivered by the USPS in lieu of voting via other methods is as

critical as ever. Id.

2. The First Preliminary Injunction Enjoining the Late/Extra Trips Policy

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

in services, which Plaintiffs asserted caused an overall decline

in USPS service scores. Mem. Op., ECF No. 32 at 3. Among other

things, the document detailing the changes in operations 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

3 dispatch” (collectively, the “Late/Extra Trips Policy”). Id.

After the USPS policy took effect, USPS eliminated a substantial

number of extra or late trips per week. Id. (“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.”). The USPS policy changes stood 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.” Id.

(quoting Pls.’ Mot., ECF No. 16-1 at 10).

On September 8, 2020, Plaintiffs moved for a preliminary

injunction requesting that the Court enjoin Defendants and their

agents from implementing the USPS policy changes above.

Approximately three weeks later, USPS 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.

The Court granted Plaintiffs’ motion on September 28, 2020,

and issued an Order enjoining Defendants “from enforcing the

4 Late/Extra Trips Policy.” See Order, ECF No. 31; Mem. Op., ECF

No. 32 at 43-44. 4

3. The November Measures

Following the Court’s entry of a preliminary injunction

enjoining enforcement of the Late/Extra Trips Policy, Plaintiffs

assert that USPS continued to suffer from poor service

performance. Pls.’ Mot., ECF No. 175-1 at 10 (citing a

Washington Post news report 5 stating that, as of March 2021, USPS

metrics remained lower than the agency’s scores prior to the

announcement of the July 2020 policy changes). To improve on-

time election mail delivery, USPS implemented further measures

for the November 2020 general election (“November Measures”).

Pls.’ Mot., ECF No. 175-1 at 13.

The November Measures included the following: (1) allowing

processing plants to pull identified ballots out of the

processing system so that they could be placed in a bin for

delivery to a board of elections the following day; (2)

authorizing delivery units to use Express Mail to deliver

4 The Court granted the parties’ joint motion to dissolve the preliminary injunction on February 11, 2021. See Min. Order (Feb. 11, 2021). 5 The Court takes judicial notice of the existence of the news

article. See Washington Post v. Robinson,

(D.C. Cir. 1991) (“[A] court may take judicial notice of the existence of newspaper articles in the Washington, D.C., area that publicized” certain facts); Agee v. Muskie,

, 81 n.1, 90 (D.C. Cir. 1980) (taking judicial notice of facts generally known as a result of newspaper articles). 5 ballots to boards of elections; (3) authorizing local delivery

units to postmark and deliver ballots directly to boards of

elections; (4) authorizing local retail units to schedule

drivers to deliver ballots directly to the relevant board; and

(5) requiring all facilities to perform a daily “all clear”

check and certify that the facilities were clear of election

mail by 10:00 a.m. See id. at 13-14.

Following implementation of the November Measures, “the

service score for all election mail exceeded the service score

for all First-Class Mail by five percent.” Id. at 15.

Nonetheless, the USPS Office of Inspector General reported that

thousands of pieces of election mail did not make it to their

intended destination in time to be counted in the November

general election. See USPS OIG Election Report at 13.

4. The December Measures and the Georgia Measures

After the November general election, the Georgia Senate

runoff election was set for January 5, 2021. In preparation for

the runoff election, Defendants issued further guidance to USPS

personnel on December 8, 2020, and December 14, 2020,

authorizing facilities to implement measures similar to the

November Measures (“December Measures”). See Ex. 9 to Pls.’

Mot., ECF No. 175-11; Ex. 10 to Pls.’ Mot., ECF No. 175-12.

Despite the December Measures, USPS data indicated that

6 processing scores of ballots did not meet USPS’s service

standards. See Pls.’ Mot., ECF No. 175-1 at 20.

Due to the low processing scores and Defendants’

inclination to avoid “continued, seriatim motions briefing,” the

parties entered into a joint agreement on December 23, 2020,

for the USPS to implement further measures specific to the

Georgia Senate runoff election (“Georgia Measures”). See Pls.’

Mot., ECF No. 175-1 at 20; Defs.’ Opp’n, ECF No. 177 at 15. The

Court incorporated the terms of the agreement into a Minute

Order the following day. See Min. Order (Dec. 24, 2020).

The Georgia Measures “included all prior measures

implemented and several supplemental provisions, principally

designed to bypass processing facilities, provide for earlier

implementation, and ensure compliance.” Pls.’ Mot., ECF No. 175-

1 at 20. The Georgia Measures included the following:

Mandatory Local Turnaround. Beginning immediately and continuing through election day, all Atlanta District post offices were required to postmark and deliver ballots directly to the relevant board of elections, rather than placing them into the automation flow.

Early Implementation of Hub-and-Spoke Processes. On Saturday, January 2, post offices and local delivery units in close proximity to Atlanta District boards of elections were required to implement a hub- and-spoke process to deliver ballots to the local boards. And on Monday, January 4, post offices and local delivery units in the Atlanta District were required to implement a

7 hub-and-spoke process to transport ballots to non-local boards of elections, when delivery was possible before the board closing.

Use of the Express Mail Network. From January 2 through January 4, USPS was required to place all ballots identified in any processing plant that were subject to a three-day service standard directly into the Express Mail Network.

Ballot Sweeps and All-Clear Certification. Beginning December 28, processing facilities serving Georgia ZIP codes were required to perform morning sweeps to ensure all Inbound Ballots were expedited for delivery; on January 4 and 5, they were also required to perform an afternoon sweep. Following these sweeps, facilities were to report to Headquarters the number of ballots identified and confirm that they were expedited for delivery. Likewise, beginning on December 29, these processing facilities were also required to certify that they were all clear of election mail by 10 a.m. daily.

Coordination with Georgia Boards of Elections. USPS was further required to coordinate with Georgia boards of elections to ensure all Inbound Ballots were delivered by 7 p.m. on January 5.

Investigation of Delayed Ballots. Finally, USPS was required to investigate reports of delayed ballots and make best efforts to ensure the reported ballots were delivered on time.

Id.

While USPS’s performance and compliance with election

procedures for the Georgia Senate runoff election was not

perfect, the USPS Office of the Inspector General reported that

USPS had “performed well” overall. See USPS OIG Election Report

8 at 21. The non-compliance issues observed included “delayed

election mail, not completing daily all-clear checks, not

maintaining election and political mail logs, and not

postmarking as required.” Id.

5. The Upcoming Elections in Texas, New Mexico, and Pennsylvania

Though the November general election and Georgia Senate

runoff election have passed, Plaintiffs remain concerned about

the USPS’s ability to deliver ballots in a timely manner during

future elections. Plaintiffs assert that, despite continued

delays in mail delivery, Defendants have not taken any measures

to resolve the delays, including implementing the Georgia

Measures, for the May 1, 2021 special election in Texas to fill

the late U.S. Representative Ron Wright’s seat in the Sixth

Congressional District 6; the May 18, 2021 statewide election in

Pennsylvania regarding various initiatives and to fill seats on

the state’s Supreme, Superior, and Commonwealth Courts 7; and the

June 1, 2021 special election in New Mexico to fill the seat of

former U.S. Representative Deb Haaland—now the Secretary of the

United States Department of the Interior—in the state’s First

6 Mail-in ballots must be postmarked by 7:00 p.m. on May 1, 2021 and must arrive by 5:00 p.m. the next business day in order to be counted in Texas. Tex. Elec. Code §§ 86.006-.007. 7 All ballots must be received by no later than 8:00 p.m. on May

18, 2021 in order to be counted in Pennsylvania. 25 Pa. Stat. §§ 3146.6(a), 3150.16(a). 9 Congressional District. 8 See Pls.’ Mot., ECF No. 175-1 at 11-12.

Plaintiffs allege that because Defendants have failed to

implement any measures aimed at speeding Election Mail for the

elections in Texas, Pennsylvania, and New Mexico, “voters will

be subjected to a substantial risk that their ballots will be

delivered too late to count.” Id. at 26.

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 a 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.,

ECF No. 21; and Plaintiffs filed their reply brief on September

20, 2020, see Pls.’ Reply Supp. Mot. Prelim. Inj., ECF No. 24.

The Court granted Plaintiffs’ motion for a preliminary

injunction on September 28, 2020, enjoining Defendants “from

enforcing the Late/Extra Trips Policy.” See Order, ECF No. 31;

Mem. Op., ECF No. 32 at 43-44. However, following completion of

8 All absentee ballots must be received by no later than 7:00 p.m. on June 1, 2021 in order to be counted in New Mexico. N.M. Stat. §§ 1-6-10(c), 1-12-8.2(A). 10 the November general election and the Georgia Senate runoff

election, the Court granted the parties’ joint motion to

dissolve the preliminary injunction on February 11, 2021. See

Min. Order (Feb. 11, 2021).

Defendants moved to dismiss Plaintiffs’ amended complaint

on January 15, 2021, on grounds that Plaintiffs’ lawsuit was

moot following the November general election. See Defs.’ Mot.

Dismiss, ECF No. 165-1. Prior to the Court ruling on the motion,

Plaintiffs filed their second amended complaint on March 9,

2021. See Second Am. Compl., ECF No. 173. Plaintiffs’ second

amended complaint included additional plaintiffs and new

allegations relating to the upcoming elections in Texas,

Pennsylvania, and New Mexico. See id.

On March 26, 2021, Plaintiffs filed their Second Motion for

Preliminary Injunction, requesting that the Court “requir[e]

Defendants to implement the measures that they agreed to adopt

for the Georgia Senate runoff elections in the upcoming

elections in Pennsylvania, Texas, and New Mexico.” See Pls.’

Mot., ECF No. 175-1 at 3. Defendants opposed Plaintiffs’ motion

on April 9, 2021, see Defs.’ Opp’n, ECF No. 177; and Plaintiffs

replied on April 16, 2021, see Pls.’ Reply, ECF No. 179. 9

9 Plaintiffs attached a series of new declarations to their reply brief, and moved for leave to file the supplemental declarations on March 26, 2021. See Pls.’ Mot. Leave File Suppl. Decls., ECF No. 180; see also L. Civ. R. 65.1(c). Defendants opposed 11 The motion is now ripe for adjudication. 10

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,

(D.C. Cir. 2014) (alteration

in original) (quoting Sherley v. Sebelius,

(D.C. Cir. 2011)). Where the federal government is the opposing

Plaintiffs’ request on April 28, 2021, arguing that the supplemental declarations were procedurally improper. Defs.’ Response Mot. Leave File Suppl. Decls., ECF No. 181. Because the Court granted Defendants an opportunity to respond to the declarations, the Court finds that Defendants are not prejudiced by the admission of the supplemental filings. Accordingly, the Court, in its discretion, grants Plaintiffs’ motion to consider the supplemental declarations in resolving their motion for a preliminary injunction. See Lewis v. Bay Indus., Inc.,

(E.D. Wis. 2014) (concluding that granting a motion for leave to file supplemental declarations “was appropriate, as striking the declarations would be an unduly harsh sanction” where defendant suffered no prejudice and plaintiff obtained supplemental declarations promptly). 10 In accord with the parties’ agreed-upon briefing schedule,

Plaintiffs’ Second Motion for a Preliminary Injunction, ECF No. 175, became ripe on March 26, 2021—or, 21 days after the motion was filed. See Pls.’ Mot., ECF No. 175 (filed on March 26, 2021); Pls.’ Reply, ECF No. 179 (filed on April 16, 2021). In addition, Plaintiffs’ Motion for Leave to File Supplemental Declarations, ECF No. 180, became ripe on May 5, 2021. Accordingly, the Court finds that the parties are not prejudiced by not having a hearing on Plaintiffs’ Second Motion for a Preliminary Injunction within 21 days after its filing. See L. Civ. R. 65.1(d). 12 party, the balance of equities and public interest factors

merge. See Nken v. Holder,

(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.,

(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,

(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.,

, 1291–92

(D.C. Cir. 2009).

In the wake of the Supreme Court’s decision in Winter v.

Natural Resources Defense Council,

(2008), “the D.C.

Circuit has suggested that a positive showing on all four

preliminary injunction factors may be required.” Holmes v. FEC,

, 183 n.4 (D.D.C. 2014); see also Sherley,

(“[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

13 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,

, 46 n.2 (D.D.C. 2014).

III. Analysis

A. Plaintiffs Are Not Likely to Succeed on the Merits of their Constitutional Claim

1. Plaintiffs Likely Do Not Have Standing to Bring Their Constitutional Claim

Defendants argue that Plaintiffs cannot establish that they

are likely to succeed on the merits because Plaintiff Vote

Forward and the individual Plaintiffs lack standing in this

case. See Defs.’ Opp’n, ECF No. 177 at 21, 29. The Court agrees.

Plaintiffs have failed to show that their alleged injuries are

the result of Defendants’ actions, and the redress Plaintiffs

seek is too speculative to support their invocation of federal

court jurisdiction.

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

‘likel[ihood]’ that the injury ‘will be redressed by a favorable

decision.’” Susan B. Anthony List v. Driehaus,

(2014) (quoting Lujan v. Defs. of Wildlife,

(1992)). These requirements also apply to organizations,

whether they assert standing to sue on their own behalf, or on

14 behalf of its members. Nat’l Treasury Emps. Union v. United

States,

(D.C. Cir. 1996) (citing Havens

Realty Corp. v. Coleman,

(1982)).

“The party invoking federal jurisdiction bears the burden

of establishing these elements.” Lujan,

(citations omitted). “Since they are not mere pleading

requirements but rather an indispensable part of the plaintiff’s

case, each element must be supported in the same way as any

other matter on which the plaintiff bears the burden of proof,

i.e., with the manner and degree of evidence required at the

successive stages of the litigation.”

“Standing to seek . . . forward-looking injunctive relief

requires [the 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,

(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,

(D.C. Cir. 2017) (citing Mountain States

Legal Found. v. Glickman,

(D.C. Cir. 1996)).

15 Although the risk of disenfranchisement may qualify as an

injury in fact, 11 Plaintiffs have not submitted sufficient

evidence establishing a substantial likelihood of causation or

redressability.

Regarding causation, Plaintiffs must show “a causal

connection between the injury and the conduct complained of.”

Lujan,

. The injury must be “fairly traceable to

the challenged action of the defendant, and not the result of

the independent action of some third party not before the

court.”

(cleaned up). Plaintiffs have not shown they are

more likely than not to meet this standard.

Plaintiffs contend that “mail ballot delays are traceable

to USPS’s knowing refusal to implement any measures that would

expedite ballot delivery in the face of those delays.” Pls.’

Reply, ECF No. 179 at 12 (citing Pls.’ Mot., ECF No. 175-1 at

7); see also id. at 13 (“But for Defendants’ utter failure to

take any measures to combat their consistently delayed ballot

delivery and ensure timely delivery in the upcoming elections,

11Even so, none of the Individual Plaintiffs attest that they reside in Texas or intend to cast their ballot in the Texas election. In addition, Vote Forward’s letter-writing campaign—in which the organization sends out “get out the vote” letters to eligible voters close to election day—in Texas concluded prior to completion of briefing on Plaintiffs’ two motions. See Defs.’ Response Mot. Leave File Suppl. Decls., ECF No. 181 at 4. Thus, Plaintiffs have not established an impending or ongoing injury- in-fact with regard to the Texas election. 16 the Individual Plaintiffs would be able to mail their ballots

back three days before an election without risk of rejection”);

id. at 16 (“Vote Forward’s instant injuries—like those of the

Individual Plaintiffs—are traceable to USPS’s failure to take

any steps to expedite mail ballots in the wake of this poor

service performance.”).

However, Plaintiffs’ claim is contradicted by the record.

Defendants have submitted three declarations by USPS officials

in Texas, New Mexico, and Pennsylvania rebutting the assertion

that the Postal Service has categorically refused to take “any

measures.” For example, in Pennsylvania, USPS anticipates

utilizing the following measures, in line with previous

practice: (1) “reach[ing] out, as is done for every election, to

the [boards of elections] to discuss any specific needs to

ensure that Election Mail is timely delivered,” Hand Decl., ECF

No. 177-8 ¶ 4; (2) “hav[ing] carriers do daily checks with all

[boards of elections] in the District to confirm that they are

clear of any outgoing ballots,” id. ¶ 5; (3) prioritize[ing]

ballots mailed from voters to the board of election to ensure

that they arrive by the deadline set by the state, id. ¶ 6; and

(4) conduct[ing] additional deliveries on the election day, as

necessary, id. And in New Mexico, USPS has plans in place to

discuss with state officials any potential measures to be

implemented for the delivery of ballots as the election date

17 draws closer, further casting doubt on Plaintiffs’ assertion

that USPS knowingly refuses to treat ballot mail any differently

in the upcoming election. See Lamb Decl., ECF No. 177-6 ¶ 5; id.

¶ 3 (stating that New Mexico USPS officials “work individually

with the Secretaries of State and boards at the local level to

determine the best solutions” given that the “needs of the

different boards are often different from one another”); see

also Cook Decl., ECF No. 177-7 ¶ 6 (stating that Texas political

and election mail coordinators have “regular meetings” with

Secretaries of State and other officials to discuss arrangements

for the delivery of ballots, noting that, for example, “[s]ome

boards may arrange for pick-up of ballots, while others request

delivery on the day of the election”).

While the anticipated measures may be arranged locally,

rather than nationally, and though USPS does not suggest that

any implemented measures would be as extensive as the Georgia

Measures, at no point does USPS suggest that the USPS district

managers in the relevant regions have decided that operations

must remain static throughout the election. In view of such

anticipated state-level election plans, the Court does not agree

that USPS has “knowing[ly] refus[ed] to implement any measures

that would expedite ballot delivery,” as Plaintiffs assert.

Pls.’ Reply, ECF No. 179 at 12 (citing Pls.’ Mot., ECF No. 175-1

at 7). Furthermore, Plaintiffs do not attempt to connect delays

18 in mail delivery with the absence of the Georgia Measures

because, as Plaintiffs clarify, they do not contend that

“Defendants’ failure to implement the Georgia measures by itself

cause[d] their injuries.” Pls.’ Reply, ECF No. 179 at 12. Thus,

in view of USPS’s sworn declarations indicating that the Postal

Service does anticipate implementing some measures at the

discretion of the local and regional offices, the Court cannot

find that Plaintiffs have established causation.

Next, regarding redressability, a plaintiff must show that

it is “‘likely,’ as opposed to merely ‘speculative,’ that the

injury will be ‘redressed by a favorable decision.’” Lujan,

(quoting Simon v. Eastern Ky. Welfare Rights Org.,

(1976)).

Here, Plaintiffs have not demonstrated that an order

requiring USPS to implement the Georgia Measures is

substantially likely to redress alleged injuries in

Pennsylvania, Texas, and New Mexico. Plaintiffs argue that their

motion “details exactly how and why these measures will reduce

delays by up to two days.” Pls.’ Mot., ECF No. 179 at 14.

However, the evidence Plaintiffs rely on does not support a

finding that the mandatory implementation of the Georgia

Measures outside of Georgia would reduce ballot delays.

First, Plaintiffs contend that they have established that

the local turnaround and hub-and-spoke processes reduce delivery

19 time by at least one day, and that Express Mail can decrease

delivery times by one or two days. Pls.’ Reply, ECF No. 179 at

14. In support of their contention, Plaintiffs cite to

statements by the USPS operations industrial engineering manager

describing the intended effect of such measures either in

general terms or in the context of the Georgia Senate runoff

election. See Pls.’ Reply, ECF No. 179 at 22-23, 30-31. While

such statements may be helpful to understand the mechanics of

many of the proposed measures, none of the statements indicate

whether the Georgia Measures would be successful in the context

of different types of elections, including those involving only

a subset of counties within a state, or different geographic

locations. See Swanson Grp. Mfg. LLC v. Jewell,

(D.C. Cir. 2015) (finding plaintiffs lacked standing where

the allegations were “conclusory or silent with respect to their

claims of causation and redressability”).

Plaintiffs’ citations to the USPS OIG Election Report are

similarly unhelpful. The audit report provides only a high-level

analysis of USPS’s handling of Election Mail during the Georgia

Senate runoff election from December 1, 2020 to January 6, 2021.

See USPS OIG Election Report at 21. The Court acknowledges that

the audit report indicated that USPS “performed well” during the

runoff election, but the report provides no indication as to

whether the Georgia Measures were integral to the Postal

20 Service’s success.

Indeed, despite the success, the audit

report states that USPS still suffered from compliance issues

during the runoff election, including a lack of understanding of

requirements for daily all-clear certifications and

postmarking. 12

Second, Plaintiffs assert that “Defendants’ own 30(b)(6)

witness has confirmed that [the Georgia Measures] speed ballot

delivery,” and that “Defendants’ own officials have conceded

their importance in ensuring ballots arrive on time.” Pls.’

Reply, ECF No. 179 at 14. As stated above, however, such

statements do not concern whether the Georgia Measures would be

effective when implemented on a national level to ensure the

speedy delivery of ballots at a local level. Furthermore, the

30(b)(6) witness also emphasized that any change of procedures

in the run-up to an election “introduce[s] a risk of failure.”

See Ex. 3 to Pls.’ Mot., ECF No. 175-6 at 209:17-22 (“[T]he

assumption that a hub-and-spoke process will automatically mean

that those ballots make it is a false assumption. This doesn't

mean that all the ballots will make it on time. As I’ve

12Because the USPS OIG Election Report gives only a high-level account of USPS performance during the Georgia Senate runoff election, it is unclear whether these compliance issues occurred primarily before or after the agreed-upon Georgia Measures were implemented on December 23, 2020. Thus, it is unclear whether the Georgia Measures resolved such noncompliance, as Plaintiffs argue. See Pls.’ Mot., ECF No. 175-1 at 22-23. 21 mentioned before, when we change processes, we introduce a risk

of failure. We introduce a risk that somebody is not going to

follow that new process correctly, and it -- it introduces new

confusion into the step.”). In addition, “[i]t also diverts

resources, ‘taking people away from their normal jobs . . . ,

which could introduce risk in other ways.’” Defs.’ Opp’n, ECF

No. 177 at 26 (quoting Ex. 3 to Pls.’ Mot., ECF No. 175-6 at

213:11-16. These risks may be outweighed by other factors in

some elections, such as the November general election, but

Plaintiffs have not provided any evidence that the risks are

outweighed in the specific elections at issue here. And while

Plaintiffs argue that Defendants “do not offer any facts

suggesting that [the Georgia Measures]” would not be

“appropriate” in Texas, New Mexico, or Pennsylvania, it is

Plaintiffs’ burden to establish redressability. See Lujan,

.

Third, Plaintiffs argue that “Defendants’ own data confirms

their effectiveness in the November general and Georgia runoff

elections.” Pls.’ Reply, ECF No. 179 at 14. However, in the

November general election, the measures at issue were not

mandatory. Rather, USPS only “authorized” certain steps, such as

using Express Mail to deliver ballots, utilizing local

turnaround, and utilizing the hub-and-spoke process. See Pls.’

Mot., ECF No. 175-1 at 14. As such, the record is unclear

22 regarding the extent to which USPS facilities across the country

implemented the measures at that time.

Regarding the Georgia Senate runoff election data,

Plaintiffs provide these numbers without context. For example,

Plaintiffs do not provide additional data detailing the

processing scores for inbound ballots in the relevant districts

during any previous statewide elections. Without such a

comparison tool, the Court is unable to conclude whether the

Georgia Measures were helpful, harmful, or neutral during the

runoff election. The Court also declines to compare the Georgia

Senate runoff election data to the wealth of November general

election data currently available on the Court’s docket. See,

e.g., ECF Nos. 149-59. Plaintiffs do not ask the Court to

undertake such an analysis, and the Court is not persuaded that

such a comparison would be appropriate given that two elections

diverge greatly in terms of total ballots processed and in

geographic scope. And even if the Court did compare November

general election data to Georgia Senate runoff election data, it

is not apparent that such an analysis would support Plaintiffs’

position. Compare Ex. 11 to Pls.’ Mot., ECF No. 175-13 (listing

the processing scores for Tennessee from December 29, 2020 to

January 6, 2021 as: 96.90%; 88.00%; 95.86%; 75.44%; 94.38%; 80%;

and 80%), with Notice of Data, ECF No. 159 (listing the

processing scores for Tennessee from October 27, 2020 through

23 November 3, 2020 13 as 91.97%; 94.09%; 96.43%; 91.43%; 84.13%;

88.06%; and 78.58%).

Finally, there is another reason to doubt whether

Plaintiffs’ harms would be redressed by a favorable decision:

“Defendants have once again curtailed the use of extra trips to

rates similar to those in place before the Court’s earlier

ruling, and USPS’s performance remains substantially below its

pre-July 2020 baseline.” Pls.’ Reply, ECF No. 179 at 16. As this

Court previously found in granting Plaintiffs’ first preliminary

injunction on September 28, 2020, USPS’s policy change resulting

in a reduction in transportation and extra trips coincided with

a significant decline in USPS on-time service scores. Mem. Op.,

ECF No. 32 at 14-15. Given the correlation between low service

scores and fewer late/extra trips, as well as the fact that the

Georgia Measures do not include any provisions regarding

late/extra trips, it is unclear whether implementation of the

Georgia Measures would improve ballot delivery times in the face

of such curtailment.

Thus, in view of USPS’s intention to implement the measures

described supra to ensure the timely delivery of ballots, as

well as the lack of evidence demonstrating that the Georgia

Measures would redress Plaintiffs’ alleged injuries, the Court

13 Data for November 1, 2020 was not included. 24 declines to override the judgment and expertise of USPS managers

overseeing the day-to-day postal operations in their locality.

See Lamb Decl., ECF No. 177-6 ¶ 3 (“Unlike the recent National

Election where Headquarters provided extensive guidance vis-à-

vis extraordinary measures for us to follow, in state and local

elections, there is greater discretion at the local level to

deal with the best way of delivering ballots.”). The Court,

however, does not foreclose the possibility that Plaintiffs may

successfully establish standing at later stages in this

litigation.

IV. Conclusion

For the foregoing reasons, the Court DENIES Plaintiffs’

Second Motion for a Preliminary Injunction, ECF No. 175. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge May 18, 2021

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