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Harvard Law Prof: USPS Failures Expose Constitutional Violations in Vote-By-Mail Laws of Several States

As states across the country prepare to deal with monumental increases in mail-in voting ballots this election season, the Trump Administration has been ramping up its efforts to dismantle the capabilities of the U.S. Postal Service (USPS). With 46 states recently receiving notifications from USPS warning that the agency may not be capable of delivering all ballots cast via mail by Nov. 3, legal experts are calling on state and federal officials to take action or risk jeopardizing the presidential election.

Prompted by congressional Democrats, USPS Inspector General Tammy L. Whitcomb this week began investigating the policy changes enacted by Postmaster General Louis DeJoy since he took over the role in June. But former Justice Department Inspector General Michael R. Bromwich, who has already called for all of the manpower at Whitlock’s disposal to be dedicated to the DeJoy probe, on Saturday said Congress must force DeJoy to defend his actions under oath.

Postmaster General Louis DeJoy (2nd R) arrives for a meeting with House Speaker Nancy Pelosi, D-CA, Senate Minority Leader Chuck Schumer, D-NY, Treasury Secretary Steven Mnuchin and White House Chief of Staff Mark Meadows at the US Capitol in Washington, DC on August 5, 2020. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)

Postmaster General Louis DeJoy

“Multiple House committees should subpoena DeJoy and members of the USPS Board of Governors this weekend for an emergency joint hearing Monday for them to explain themselves,” Bromwich tweeted alongside a photograph of dozens of USPS dropboxes piled up in the state of Wisconsin.  (The relevance of the image is being debated; some on Twitter said it was taken at a Wisconsin facility which refurbishes mailboxes and therefore is neither nefarious nor out of the ordinary.  Photos of mailboxes being removed near Boston resulted in a USPS spokesperson explaining that damaged or graffitied mailboxes are regularly removed for repair.  The USPS told CNN it would halt any removals in a group of sixteen states in response to other inquiries; however, the USPS also told a Portland, Ore. newspaper it was removing “duplicative” mailboxes “due to declining mail volume,” a problem exaggerated during the pandemic.  However, the USPS said some of the removed mailboxes were being replaced by ones with better security measures.)

At the state level, service delays have already resulted in thousands of primary ballots received after election day being invalidated. In Michigan, a swing state Donald Trump won by less than 11,000 votes in 2016, appellate court last month ruled that the state is not required to count absentee ballots received after polls close on election day. However, Harvard law professor and constitutional scholar Laurence Tribe on Saturday said that voters being disenfranchised by variations in mail delivery schedules violates the Fourteenth Amendment of the U.S. Constitution.

Citing to the 1974 U.S. Supreme Court case O’Brien v Skinner, Tribe said that the Equal Protection Clause “invalidates state rules that make arbitrary distinctions between voters who can get their absentee ballots counted and those who can’t.” Thus, if two people in a state mail their ballots on the same day, one of those votes cannot be counted while the other is invalidated because they were delivered at different times.

According to Tribe, who represented Al Gore during the 2000 presidential election recount, the Constitution requires that states enact postmark rules – meaning all mail-in ballots must be dated and cannot be invalidated if sent before the election deadline.

“This means a state that doesn’t adopt a postmark rule violates the 14th Amendment rights of voters who aren’t assured they’ll receive their absentee ballots in time to have them counted by November 3,” he wrote. “Voters in those 34 states should ask the ACLU to help them get injunctions to prevent that predictable violation of their rights, putting pressure on such states to adopt a postmark rule or otherwise cure the violation.”

[Image via screen capture from MSNBC.]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.