Taking Trump to Court to Protect Our Votes (1)
ANNOUNCER: Welcome to Moyers on Democracy. One of America's leading trial lawyers has taken Donald Trump to court, to stop what he describes as a conspiracy by the president, the postmaster general, and the Postal Service itself to rig the coming election. It's a mesmerizing case, on behalf of four voters in particular and all voters potentially, and if at first it seems yet another round of “little” David versus Goliath, well, David Berg has bagged bigger game before, winning one case in the Supreme Court and beating the Ku Klux Klan in another. He's a founder of the firm Berg & Androphy, located in New York and his long-time hometown of Houston. He's written a critically acclaimed memoir with the title RUN BROTHER RUN about the murder of his brother, and a second book – THE TRIAL LAWYER: WHAT IT TAKES TO WIN, used in many law schools to teach the skills of courthouse conflict. Here's now is Bill Moyers with David Berg.
BILL MOYERS: Good morning, David.
DAVID BERG: Good morning, Bill.
BILL MOYERS: How are ‘ya?
DAVID BERG: I'm doing fine.
BILL MOYERS: Same here. Why did you bring this suit?
DAVID BERG: You know, it really comes down to a friend of ours named Terri Richardson. I could tell you the story of why we think that she's the most important of our plaintiffs. Back in March– the primaries were held here on March the third. And this was before Coronavirus was declared a pandemic. And Terri, who has a disability, she has just crippling arthritis. She's had two hips replaced and she's scheduled to get other replacements. Terri told us that on March the third it took her three total hours to vote. There were two hours that she spent in the line, waiting to get into the schoolhouse, to the polling place. And the only way she got through that was by resting on her cane. Then when she got into the schoolhouse, which took two, two and a half hours, a teacher, who had been in line with her and taught at that school, brought her a chair. So Terri sat in the chair and a fellow behind her would push her for the next hour or so, until she got into the polling place and finally voted. So it was really important for Terri to make sure she got a mail-in ballot in time for the July 14th runoff elections. Voting is critical to her life, very important to her, as it is to all of us. So Terri, in April, applied for her mail-in ballot. By July 14th, she didn't have her ballot. They never responded to her, never sent her what she needed. So on July 14th, she was faced with a constitutional Hobson's choice. Either she stayed home, stayed safe and didn't vote, or she risked her health to cast her ballot by going to the polls in Houston, of all places, on July 14th, when the pandemic was at its very worst. So Terri took the chance, she went, she voted. She didn't get Coronavirus. But it's because of people like Terri that we filed this suit. And it's critical that we have plaintiffs, people who were willing to bring the suit, who've gone through what she's gone through, and fear the same thing happening this fall during the presidential election.
BILL MOYERS: The three other plaintiffs did not receive their absentee ballots in time to vote in their primaries in different states for different reasons, although all of them had met the requirements.
DAVID BERG: That's correct. Each one of them had requested a mail-in or an absentee ballot. And two of them requested absentee ballots they never got. One of them was unable to vote at all because he was out of town on work. And then, in New York, another one of our plaintiffs told us that she lives with her 85-year-old grandmother, and she couldn't go to the polls. She'd asked for a mail-in ballot. She didn't get it. She didn't go to the polls for fear that she would infect her grandmother with COVID-19.
BILL MOYERS: In other words, they were asking for a ballot to avoid going in person to a situation where the Coronavirus might be waiting for them.
DAVID BERG: Precisely. Exactly. So, that is at the heart of our case. What we argue, and which has been blessed by some constitutional scholars, is, look, the right to vote should not be burdened like this. You shouldn't have to choose your life or your health, over staying at home and being safe and not voting at all. The concern I have is that that's the object of the current administration, to put it kindly.
BILL MOYERS: Have they applied for their ballots to vote in the November third election?
DAVID BERG: Yes. We have plaintiffs in Texas, Pennsylvania, New York, and Wisconsin. And I think those ballots are going to go out this month, but they don't want to risk not getting their ballot again in an election this critical.
BILL MOYERS: So what must you prove?
DAVID BERG: We have to prove imminent harm. In order to get any kind of injunctive relief from any court in the country, you have to prove that you are in imminent danger of losing, in this case, a valuable right, for which no money can compensate you. This is at the heart of this democracy: a free, unfettered right to vote. In this case, we were able to show, this is what we think is the harm. This is what we think we can say to the court. “Look, your Honor– ” I wouldn't say, “Look, your Honor.” But I would say, “Your Honor– we have four people here. Their experience, from all published reports, is no different from millions of Americans. Their right to vote was unconstitutionally burdened, as the test goes.”
BILL MOYERS: In their primaries.
DAVID BERG: In their primaries. Yes, exactly. And in the runoffs. So, we say to the court, “That's not something that a voter should have to confront.” And we can't be certain, given everything that's happened with the United States Postal Service, that this is not going to happen again. “This” being the failure to deliver the ballots in response to applications. And then, and this is also critical, because this is unknown to the voter. There were tens of thousands of votes that arrived too late at election officials' offices during the primary season, and in the runoffs, Bill. And they weren't counted. Used to be that, you know, you postmarked your mail-in ballot on the last day before the election, and it'll get counted. We don't have that assurance anymore.
BILL MOYERS: So what are you asking the court to do?
DAVID BERG: The court can look to the causes. There are four causes of the slowdown, probably more that we don't know about. But there are four that widely publicize. The most serious of the causes, you've probably heard DeJoy and other of his cohorts at USPS–
BILL MOYERS: Postmaster DeJoy, President Trump's appointment to be postmaster general.
DAVID BERG: Yes, exactly. He's bragged about the fact in an email to all of the 600,000 employees of the United States Postal Service that the rate of delivery has really improved. On-time delivery has gone from 83% to 94% in just a month. That's just about as trustworthy as when he, DeJoy, said he would suspend all the changes. Which was just a head fake, was just three card Monty with our election. When he said he'd suspend the changes that he was making at the post office claiming it just to be for cost-cutting, what he really meant to say was, I'm not going to reverse the changes I've already made, which has created slowdowns in mail delivery, failure to deliver mail all over the country. Especially more pronounced in some parts than others. So what we're asking the court to do is lift the hiring freeze. Thousands of postal workers have been sidelined by the Coronavirus. And the fallacy of this business about delivering on time, Bill, if your trucks all leave on time, that's one thing. But they leave on time without the mail. They are no longer allowed to do late deliveries or special deliveries to customers. So the mail stacks up, and that makes the delay even worse. So yes, he's telling us the trains are running on time. But they're empty.
BILL MOYERS: The complaint you have filed speaks of a, quote, “conspiracy” between the defendants, President Trump, Postmaster General DeJoy, and the Postal Service itself. That's pretty tough talk. The dictionary says a conspiracy is a secret plan to commit a crime. Do you really think that's what's going on here?
DAVID BERG: Yes, I do. We need to prove that before we get to a trial on the merits, Bill. But what Trump proposes DeJoy disposes. Trump magically says, if I lose this election, it'll be because it's rigged. That's the talk of tin-pot dictators. The assumption that he can't lose, the only way he can lose is if it's rigged. And why is it that he can't win? Because of all the mail-in ballot fraud. So the next thing you know is DeJoy comes in in May. He's nominated and approved in May by the Board of Governors. Circumstantial evidence can be far more persuasive than direct evidence. You know, three people witness an accident and you get three stories. But here you've got Trump saying there's a problem with these mail-in ballots, there's widespread fraud. And it's hard to discern what the man is thinking. But he says, but absentee ballots are okay. God knows what he meant. But magically, all of a sudden, the mail service slows down, it drops precipitously, on-time delivery or delivery at all drops precipitously.
BILL MOYERS: I have the complaint you filed with the court. You say they have, quote, “Engaged in outrageous tactics to slow down mail delivery even more than the pandemic slowed it down, causing the plaintiffs to return their ballots too late for election officials to count them.” That's the nub of the matter, right?
DAVID BERG: Yes. Yes. That and the fear that the same thing will happen again in the fall.
BILL MOYERS: Do you think Trump is trying to steal the election?
DAVID BERG: Yeah, I do. I think he's doing what we call in my firm, “Prepping the zone.” He's telling his followers, I'm going to contest this election if I lose it. I don't think there's any doubt what he's got in his mind. Look at what the man has said about the election. It's just about as trustworthy as what he said about Coronavirus, which Bob Woodward's new book lays bare. And we have this man admitting that he purposely, consciously underplayed, understated the danger of Coronavirus. I've listened to those tapes. And I know you have, too. What makes us think that he'd do anything different when he lies to us about all this widespread rigging and fraud, which is virtually nonexistent, statistically insignificant, in mail-in ballots?
BILL MOYERS: What evidence will you offer to prove that there is a conspiracy or collusion or collaboration to slow down the mail for the purpose of deciding the election by rigging it? What evidence do you have?
DAVID BERG: The primary evidence are the public statements and the reaction of DeJoy. He accelerated these changes immediately upon coming into office. Now we've got a long way to go, Bill. I don't have what we call in the law a lay-down hand. One of the things that I think is so powerful is President Trump talks about widespread fraud in mail-in balloting. Well, I've read at least three studies.
