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Democrats Just Won Several Major Lawsuits Over Mail Ballots—But Their Fight Continues

8 minute read

After securing a several major court victories on Thursday, Democrats who have been worried about whether the United States Postal Service (USPS) is capable of efficiently and securely delivering ballots before Election Day, breathed a—temporary—sigh of relief.

“We are fortunate to have a system where an attorney general could walk into a courtroom and make that case to a federal judge and put a stop to this madness,” says Washington state Attorney General Bob Ferguson, who led the coalition of attorneys general in a federal lawsuit that successfully procured a national temporary injunction against changes at the Postal Service.

In addition to the case led by Ferguson, Pennsylvania’s Supreme Court issued a decision Thursday that expanded mail-in voting access in the state, a blow to the Trump campaign, which had been trying to stop that from happening. On Friday, USPS and the state of Colorado also reached a settlement after the Secretary of State, Jena Griswold, sued the Postal Service for sending a postcard with inaccurate information to her constituents, alleging their efforts amounted to disenfranchisement. As part of the settlement agreement, the USPS agreed to destroy any remaining postcards that would have been sent to voters, and allowed Colorado officials review any subsequent election-related materials.

But some election experts still raised a note of caution. President Donald Trump, who has actively and repeatedly questioned, without evidence, the validity of mail voting and future election results, continues to inject uncertainty into the electoral process. And a plethora of voting-rights cases are still winding their way through the courts. “There are still a lot of cases out there on mail-in ballot rules that have yet to be decided and appeals,” Rick Hasen, a law professor at University of California, Irvine and an election law expert, wrote in an e-mail to TIME. “We are not even at half-time when it comes to election litigation.”

But the significance of this week’s court decisions are indisputable. For weeks, Democrats have been alleging that the changes implemented at the United States Postal Service under Postmaster General Louis DeJoy—a longtime donor to Trump—were designed to tilt the election in the President’s favor. In issuing the temporary injunction, the federal judge overseeing case, Stanley Bastian, an Obama appointee, affirmed the Democrats’ argument. “Although not necessarily apparent on the surface, at the heart of DeJoy’s and the Postal Service’s actions is voter disenfranchisement,” Bastian wrote in his decision.

USPS representatives pushed back against Bastian’s ruling. “Any suggestion that there is a politically motivated attack on the efficiency of the Postal Service is completely and utterly without merit,” Lee Moak, chair of the Election Mail Committee and a member of the USPS Board of Governors, said in a statement.

As a result of the injunction, the Postal Service must halt all the policies that have caused a nation-wide slowdown in mail delivery in recent weeks. That includes a directive implemented by DeJoy mandating that all trucks leave processing plants according to schedule, even if they are not yet filled with mail. The decision also requires that the Postal Service treat any election mail as first class, even if it lacks the requisite postage. “We believe this [injunction] will have an impact on the delivery of mail, and by definition, assist with making sure everybody’s ballots are counted,” Washington state’s Ferguson said.

Just hours before that federal court decision, Pennsylvania’s Supreme Court ruled in a separate case that the state could receive absentee ballots through November 6, providing that they were postmarked on or before Election Day, and that ballot drop-boxes were permissible. Mark Gaber, director of trial litigation at the bipartisan Campaign Legal Center, described the decision as among the most significant of the cycle. While Pennsylvania adopted vote-by-mail in 2019, he was concerned the state lacked infrastructure—including drop-boxes and extended deadlines—to support the likely surge of mailed ballots during this year’s unprecedented pandemic. “This is probably the state that had the biggest potential problem coming up in November,” he says. “It’s really important these changes happened.”

Vic Walczak, the Legal Director of the Pennsylvania American Civil Liberties Union, which represented organizations who filed an amicus brief in the Pennsylvania case, also claimed victory. “[The decision] will result in more voters being able to cast safe ballots and ultimately have those ballots, and thats what democracy should be all about,” Walczak says.

Virginia Residents Cast Ballots As Early Voting For U.S. Presidential Election Begins
A voter wears a protective mask while entering an early voting polling location for the 2020 Presidential elections in Arlington, Virginia. on Sept. 18.Sarah Silbiger—Bloomberg/Getty Images

But battles still rage on, both in and out of the court. In Pennsylvania, litigation could still continue in the federal courts. In June, the Trump campaign filed a federal suit seeking to prevent Pennsylvania from using drop-boxes. In July, the state Democratic Party responded by filing a suit in state court, arguing that the state’s policy of only counting ballots delivered to county offices by election night was unconstitutional. After that filing, federal Judge J. Nicholas Ranjan, a Trump appointee, temporarily placed the Trump campaign’s suit on hold pending the outcome in the state courts. Ranjan lifted the hold after the Supreme Court’s decision, but noted that the decision “appears to have materially altered many of the claims and defenses in this case.” He requested that the campaign file its response by September 20. A Trump campaign representative did not respond to TIME’s request for comment about a subsequent course of action.

It’s also unclear whether the federal court decision on Thursday halting DeJoy’s reforms at the USPS will have any real effect on speeding up the delivery of election mail. Matthew Titolo, a law professor at West Virginia University who studies the Postal Service, wrote in an e-mail to TIME that if the USPS disregards the injunction, there are solid grounds to hold DeJoy in contempt. But the Postal Service also has grounds to file an appeal, which could potentially put the injunction in limbo. David Partenheimer, a spokesperson for the USPS, said in a statement that the organization is “exploring our legal options.”

It is also unclear if the injunction, even if it goes into effect, will solve the underlying problems at the embattled agency. In ongoing conversations over the past month, more than a dozen postal workers and union advocates have told TIME that the backlog in mail at processing plants—which was causing a slowdown in delivery—was primarily the result of two factors: the removal of sorting machines, and DeJoy’s directive that all trucks leave on time. Titolo says that the latter may be mitigated through the injunction, but it’s unlikely that all of the sorting machines that have been removed will be reinstalled and operational in the next weeks.

In Pennsylvania, the state’s highest court upheld the current policy of rejecting so-called naked ballots—mailed ballots that were not sent inside a provided envelope, for secrecy. Failing to use the proper mailing material or failing to comply with other requirements, like signing the correct forms “are small errors people all the time make, particularly when they are new to voting by mail, as most people in Pennsylvania are,” says Gaber. “Thats unfortunate, and that’s something that needs to be communicated to folks. It’s great to have the deadlines extended, it’s great to have the drop boxes, but people need to take extra care.”

At the end of the week, election officials and voting rights advocates struck an ambivalent tone. While Ferguson, the Washington State Attorney General, praised the federal injunction halting changes to USPS, he lamented that lawsuits were even necessary. “The fact that we’re at a place in our society where…Federal judges have to call out the Postmaster General for using the Postal Service in a political manner—we’ve reached an especially sad state of affairs when that’s the case,” he says.

But Campaign Legal Center’s Gaber described this week’s spate of legal decisions as not only positive, but indicative of an overall trend of ruling in favor of expanded voter enfranchisement. “We’ve made significant headway this year [in voting rights cases],” he says. “Now it’s just a function of the wheels in the process starting to go into motion.”

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Write to Alana Abramson at Alana.Abramson@time.com