The Supreme Court is hearing a number of high-profile cases this term, including one critical to the future of congressional representation. But they're also taking on a much lesser-known case, about postal service misconduct, that should not fall off anyone's radar, legal analyst Elie Mystal wrote for The Nation — because it could be "sneakily crucial" to democracy.
On the surface of it, wrote Mystal, U.S. Postal Service v. Konan, argued on Wednesday, isn't really about elections or voting rights at all. Rather, it's about just how much legal liability the U.S. Postal Service has if mail is intentionally withheld from recipients.
This case focuses on the plight of Lebene Konan, a landlord in the Dallas-Fort Worth Metroplex who alleges local postal workers deliberately refused to deliver mail to her property for two years because they didn't like the idea of a Black landlord overseeing white tenants. Konan says she lost tenants over the issue, who weren't getting bills and medicine — and she filed dozens of complaints with USPS before resorting to a lawsuit.
"It would seem obvious that people should be able to sue if the Postal Service refuses to deliver, or destroys, their mail," wrote Mystal. "Considering how much shopping is done online these days, nondelivery isn’t just an inconvenience; it’s literal theft. But as a legal proposition, it’s tricky. The Postal Service enjoys an exception from the normal operation of law — 'the postal exception' — which makes it impossible for people to sue the Post Office for claims 'arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.' The facial issue in front of the court is whether intentional nondelivery is mere loss, miscarriage, or 'negligence' — or whether it’s something more significant."
The alleged discrimination against Konan is bad enough, Mystal wrote, but "what will be even worse is when the Trump Postal Service refuses to deliver mail-in ballots in Texas, or anywhere else. Intentional nondelivery of mail in a world where mail-in voting is a thing is a crisis for democracy." That's what could happen if the Supreme Court rules USPS cannot be sued even for deliberate nondelivery.
Justice Samuel Alito seemed to think none of this is a big deal, Mystal added, saying during arguments that nondelivery of mail is too trivial an issue for people to sue over.
"What’s particularly galling about Alito’s argument is that we know exactly why he’s making it: He hates mail-in voting," Mystal wrote. "Earlier in the week, during arguments in Bost v. Illinois Board of Elections (the case I mentioned earlier about whether a Republican candidate can sue over Illinois’s mail-in ballot procedure), Alito made the wild, incorrect, and unsupported accusation that Bost has standing to sue because mail-in voting helps Democrats. This is flatly not true. But even it were, the fact that one party prefers one method of voting over another should have no bearing on the legal availability of that method of voting."
