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. And the conclusion of all of them, which is widely known, it’s not any great insight. One of the studies was from 2000 to 2012, and out of millions of votes cast, there were 495 cases of voter fraud that were found. So it’s statistically insignificant. And the second thing, I know that there’s some evidence that mail-in voting really doesn’t favor one party or another. But that’s not been my experience. When those late votes come in, mail-in votes are counted, a lot of times they favor Republicans. So we have the public statements and hope to obtain a discovery from the government that’ll give us further proof. All we have is on the public record.
BILL MOYERS: So DeJoy has removed and dismantled high speed flat mail sorters.
DAVID BERG: Yes.
BILL MOYERS: Is that circumstantial evidence, in your mind?
DAVID BERG: Yes. Yeah.
BILL MOYERS: He’s slowing down the mail by ending overtime, stopping late deliveries, and removing experienced managers? Is that circumstantial evidence?
DAVID BERG: Oh, absolutely. And if, in fact, it’s done only for cost-cutting, let me say parenthetically, the Constitution does not say anything other than we should establish post offices and build roads to them. It doesn’t say we should establish a profitable post office. But if, in fact, he’s just doing this out of the goodness of his heart, why would he put out such misleading information? Why would he say to the public, look, we’re running on time. We’ve improved to 94%, when that does nothing but hide the fact that they’re not delivering mail, that they’re letting it stack up? We get this anecdotally from witnesses around the country who work at the Post offices.
BILL MOYERS: Haven’t some Postal Service executives actually warned that some votes might not be counted?
DAVID BERG: Oh yeah. At least two. The CIO and the general counsel wrote letters to 46 states. What they said in that letter was, look, we’ve looked at your local statutes and your state statutes. And we want to warn you. Unless you get your voters to mail in their ballots at least a week before the election, we can’t guarantee that they’re going to be counted. Then you get DeJoy then counter that with– God I’d love to cross examine him. I hope I get the chance. You counter that, Bill, with his public statement that, not to worry, we’re going to make sure all the mail gets delivered, all the ballots get delivered to the voters, and all the voters’ executed ballots get delivered to the election officials. Well, I wouldn’t bet the house on that one.
BILL MOYERS: Well, let’s say I’m DeJoy. Cross-examine me. Mr. Berg, you’ve got this all mixed up. I’m doing these things for cost-cutting. The post office is spending billions of dollars it doesn’t have. And the president, who’s always conscious of saving taxpayer money, sent me to the post office as postmaster general in order to save the American people billions of dollars that are being lost in wasteful spending by an overinflated post office.
DAVID BERG: Well, first of all General DeJoy, let me say that was– you talk too much. Let me ask the questions. Let me just ask you now. Mr. DeJoy, are you guaranteeing the American public that there will be no instances where the ballots are not going to make it in time to be counted? Is that what you’re saying?
BILL MOYERS: That’s impossible to predict. I’m not a seer. I don’t have a crystal ball. And this is a large and complex organization we’re trying to improve the efficiency of.
DAVID BERG: Can you tell us, sir, whether some portion, rather than every ballot, are not going to be mailed on time or not going to be received on time to be counted by the election officials?
BILL MOYERS: My people have assured me they’re going to do their darnedest to see that the ballots are sent out on time, and there’ll be counted as soon as they return.
DAVID BERG: Well, you say they tell you they’ll do their darnedest. Is it possible, sir, is it just possible, and not attributing motive to you, is it just possible that their darnedest won’t be good enough?
BILL MOYERS: It’s always possible.
DAVID BERG: And they did their darnedest, didn’t they– if you’ll let me finish my question, General DeJoy, please. They did their darnedest during the spring, during the primaries and the runoffs, didn’t they?
BILL MOYERS: I’m sure they did.
DAVID BERG: If the standard is they’ll do their darnedest, we can certainly anticipate that one possible result is their darnedest will result in many voters not receiving their ballots and many voters who vote not having their vote counted? That’s a possibility, isn’t it?
BILL MOYERS: We’re going to work hard enough to see that everybody gets their ballot. And–
DAVID BERG: And if they don’t get their bal– you’ve admitted the possibility that they won’t get their ballots, haven’t you? I’ve read that.
BILL MOYERS: I’m sure I have said that there will be some ballots that will be delayed for reasons that are not intentional.
DAVID BERG: Well, that is very important, General DeJoy. Because it doesn’t matter, does it, whether anyone intends that ballots not to be delivered on time. Let’s just focus on that. It doesn’t matter whether it’s done maliciously, whether I’m just dead wrong about you and President Trump conspiring to steal this election, or if it’s done accidentally. Doesn’t make any difference if the ballots aren’t mailed– if the ballots, because of the post office, because of your changes there don’t make it on time to be counted.
BILL MOYERS: May I– do I have the right to ask a question, Mr. Counsel?
DAVID BERG: I’m not under oath here today, sir. You can ask the question. Go ahead.
BILL MOYERS: Have you ever sent a Federal Express package that didn’t get there on time, even though Fred Smith guarantees personally that every Federal Express employee intends for that package to be on time?
DAVID BERG: Let me just answer your question with a question. Are you running the post office or are you running Federal Express? And while I’m at it, how much money do you have invested in Federal Express, just out of curiosity?
BILL MOYERS: Counsel will rise at that point. You see William Barr stand up as attorney general and say, “That’s an irrelevant question. Objection.”
DAVID BERG: At which point I will apologize to General Barr and ask him if he would mind taking the stand. ‘Cause God knows I’d love to cross-examine that guy, too.
BILL MOYERS: What would you ask him? What is his role in this?
DAVID BERG: Let me just say I think Trump’s weaponized Barr. And Barr is happy to do it.
BILL MOYERS: What do you mean, “weaponized Barr?”
DAVID BERG: Let me give you one example, something that– you know, you get immune, in a way, to what Trump says or does. The other day he suggested, standing on a tarmac, that he wanted to test these mail-in ballots. So he’s telling people, make sure you mail in your ballot. And then go to your polling place and vote again and see if they stop you. Well, I don’t know of an American who doesn’t know the phrase “one man, one vote.” It’s pretty self-evident that you’re not supposed to vote twice. It’s against the law. It’s against federal and state laws across the country. It’s voter fraud. And they asked Barr, I saw an interview with him and Wolf Blitzer, what do you think about what Trump said about voting twice? Isn’t that illegal? And Barr said, I don’t know state law. Now to me, that is complicity of the highest order. Here’s Barr, the chief law enforcement officer in this country, lying to the public to make his boss look good. There’s not a lawyer on Earth, there’s not a lay person on Earth who would not say, “Of course you can’t vote twice, it’s illegal.” So what I see, and I’ve seen it in other things that Barr has done, I see Barr loading up to take the Justice Department across the country and contest elections. He’s hinted at that. And man, until you try a case against the Justice Department, you don’t realize how small your law firm really is.
BILL MOYERS: Is it possible that the president and his allies are encouraging his people, his base, to vote on election day even if it’s dangerous to do so because of the pandemic, so that on election night, it appears he won, and he can declare victory? You know, the polls have shown that he’s been effective in doing that as more Republicans say that they plan to vote in person now. That means the vote, by the end of the day will likely be in favor of the Republicans. Trump can declare victory, even as his attorney general contests the millions of mail-in ballots as fraudulent and uncounted. Is that a possible strategy that you think could play out?
DAVID BERG: Well, that report that suggested he would declare victory on election night sent me to an interactive electoral college map. And there’s going to be a sea of red. That’s no question. But I don’t see how he wins the election if the Democrats win Arizona. So I’m not so sure that plays out that night. If it does– you remember in 2000 when Bush set up a podium with a seal on it. I think it was the great seal of Texas at the time, ’cause he was still a candidate. But he acted as if he were president. And that had a huge influence on the public. And then, of course, he won in the Supreme Court, which is another– another topic. I think that this is all very purposeful, Bill, if that’s what you’re asking me. I think it’s a setup. I think that he’s preparing the public for a contest ’cause he knows he’s going to lose. And I think that he’s going to set the table by appearing to have won that night. In trial, we prick the rawest nerve. We tell the jury, “Here’s my weakest point.” And you’ve let them know what’s coming. And I think it’d be pretty easy to prepare the public for the fact that, on election night, he’s going to lie and misrepresent things.
BILL MOYERS: You filed your case in a district court, correct– Washington D.C.?
DAVID BERG: Yes.
BILL MOYERS: Federal court?
DAVID BERG: Yes.
BILL MOYERS: Suppose the court decides in your favor. And of course the president and his attorneys appeal it. And the appeals court decides– one way or the other. You appeal it to the Supreme Court or the president appeals it to the Supreme Court. By that time, the election has come and gone. And it’s worked or not worked, correct? Can you get a decision before November third?
DAVID BERG: I think you’re going to see some injunctions issued against the Postal Service in the next week, several of them. I think ours– I don’t want to predict. We’ve drawn a very respected jurist in DC. I don’t know how quickly we’ll get ours. But I think you’re going to see a bunch of decisions forcing the Postal Service to end the hiring freeze, to let people let the Postal Service resume its traditional late deliveries, get all the mail off of the docks in one day. I worry about the timing. You’ve hit something that really bothers me. I noticed the other day that the second circuit stayed the order that the district judge had issued, saying that Trump had attor– his accountants had to turn over Trump’s tax returns. So we won’t see that before election. I fear that happening in this case. But, I’m not sure of it. And why not try?
BILL MOYERS: Well, you’re certainly trying passionately. Let me go back to something you said earlier about this being a constitutional issue. The constitution mentions the right of a citizen to vote five times. The 15th Amendment, ratified in 1870, says, quote, “The right of citizens of the US to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” end quote. It doesn’t say anything about disability. It doesn’t say that the right of a citizen shall not be denied because that citizen is experiencing or suffering from some physical disability and is unable to get to the voting booth. How is this applicable in that case?
DAVID BERG: Equal rights are guaranteed by the 14th Amendment. And what the constitutional argument is, that no one acting under federal or state law, no one should be deprived of their rights as a citizen. We don’t enumerate every right. We don’t enumerate, for example, a woman’s right to control her own health, abortion rights. And I don’t know that of a single decision that has ever read out the right to vote in the United States. That takes us to another issue, Bill. And that is what are the state courts doing? The Texas Supreme Court said that exposure to Coronavirus is not a disability. Most of the states have said, as a matter of procedure, if you fear Coronavirus, then you can get an absentee ballot or a mail-in ballot. Our argument is very simple. And it is they made it virtually impossible for us to vote before. And this is the argument my wife, Kathryn, suggested and was blessed by a constitutional scholar, whose name I won’t use. “What about rightness? No one’s been hurt yet. How do you know– you’re supposed to get an injunction when you have imminent harm. And nobody’s been hurt yet.” That’s when Kathryn said , “Look, I’ve got this friend, Terri Richardson. She’s experienced this harm. She’s gone through this. And it’s happened nationwide. Why is that enough to create an unacceptable constitutional choice, either vote at a polling place and risk your health, or stay home and don’t vote at all if you don’t get your ballot?” So that’s the constitutional right that denies equal protection under the law. It overburdens the right to vote. We’ve had that throughout our history, Bill. We had it before women could vote at all. Enslaved people could not vote. Then we had the poll tax. This is a kind of health care poll tax.
BILL MOYERS: You have taken this case on when you could have taken on so many others. Why is this so important to you? You’re not doing this because people are paying you lots of money.
DAVID BERG: No. No. We have a wonderful team on this case. It would be remiss of me not to mention who they are. Emily Burgess, Bronwyn James, my son, Geoff Berg, who has his own firm down in Texas, my wife, Kathryn, and my partner, Jim Quinn. And they’ve devoted extraordinary numbers of hours to this. I’m doing it ’cause I’ve had my belly full. I never felt that I did enough when I saw racial issues when I practiced only in Texas in my early years, and saw a judge on the bench with a Confederate flag behind him on the wall instead of marble. I could have done more. But I just had my belly full. And when I heard him say that if he loses it’ll be because the election was rigged, I just thought, “I have to do something.” Now let me tell you, there are ten such lawsuits around the country. And we all filed almost within days of each other. And this is what we got our law licenses for. The courts have actually done a pretty good job of standing up to Trump. And they are, along with ironically, the military, our last bastion, the last bulwark against the kind of tyranny that could emerge in a second term.
BILL MOYERS: I understand that. And I agree with you about the courts and the military. But look at it from Trump’s standpoint politically.
DAVID BERG: Okay.
BILL MOYERS: He has said that if we ever have universal voting, no Republican will ever be elected again in this country. And Republicans through the decades now have said the smaller the vote, the greater their chances of winning the presidency. So, do you blame him for looking for the best strategy that he can come up with to assure a second term?
DAVID BERG: I understand his politics, Bill. But there’s not a hair’s breadth worth of difference between his politics and those of George Wallace. They may work. He may incite his base, many of those voters I grew up with, many of whom are in my wife’s family, we all know those folks if we hailed from Texas to begin with, and Oklahoma and in the South. From his standpoint, it’s the only strategy he knows. I don’t think it’s a winning strategy. I don’t think he can win without cheating. But I understand it. And what is so clear is that it’s a strategy that sacrifices the nation’s good for his personal gain. We can’t take four more years of him. Everyone I know believes that. We can’t.
BILL MOYERS: But there are some 40 million members of his base who disagree with you.
DAVID BERG: I’ve been on the short end of decisions many times, Bill. Yeah, I know. And listen, we worked very hard when we lost the election, many of us, to understand why Trump was elected and why these folks voted for him, and why they felt so disaffected. There’s lots of reasons. I loved what a billionaire CEO said a few years ago, that capitalism has committed suicide over the last three decades with tax policy. I understand why they feel disaffected. We got away from caring about folks who needed things. I understand why they feel this is them telling us, “You’ve been wrong all of this time.” You know, any sentence that starts, “I firmly believe this,” you can just not listen to the rest of the sentence. But I firmly believe that his base, the 35%, has always been there in American politics. You can trace it back to what they call the War of Northern Aggression, reconstruction, Jim Crow, lynching. And then, finally, the Voting Rights Act of ’64, which I think was the most important Civil Rights act.
BILL MOYERS: The Voting Rights Act was ’65. The Civil Rights Act was ’64.
DAVID BERG: God, this– now I feel like I used to feel in law school when I get called on and get it wrong.
BILL MOYERS: You passed, though.
DAVID BERG: Barely. Barely, but I did.
BILL MOYERS: David, what was it that led you to say, “I have to do this?”
DAVID BERG: I once read a famous essay by a reporter who had gotten sued for defamation. And she said that she showed great compassion for everyone involved in that case. The man who sued her, who was hurt by what she wrote. She won. But she said lawyers have to be good trial lawyers have to be good haters. I don’t agree with that. Good trial lawyers have to hate injustice. I’m one of many lawyers who feel this way. But I just cannot stand to see what’s happening in this election, what’s happened with this administration.
BILL MOYERS: You say in your complaint that what’s happening is harmful not only to the plaintiffs but harmful to the country.
DAVID BERG: The plaintiffs are a microcosm of what happened to the country on so many levels. The first level is a very common one, a very practical one. How do I vote? You know, if I’ve got to ask that question, if I have to ask that question and say to my wife, “I didn’t get my mail-in ballot, should I stay home and not vote or should I go risk Coronavirus and risk your health and that of our family?” In a microcosm, that’s what happened to the four plaintiffs who we represent. And that’s what happened to, apparently, millions of people across the country. So I don’t care whether it happened intentionally, to tell you the truth. I don’t care if DeJoy and Trump conspired to speed up these changes at the post office. I don’t care whether it was done intentionally and with malice or it happened just as, what did he call it? Unintended consequences, DeJoy said, of the Coronavirus and the changes at the post office. The effect is what I worry about. It sure appears to me to be done maliciously. But if we lose faith in the integrity of our elections, then we have lost democracy.
BILL MOYERS: You have filed this suit asking the court to enjoin the president, the postmaster general, and the Postal Service from engaging in any further attempt to deny these four, and all others, their right to mail in their vote and compelling Trump, DeJoy and the Postal Service, to return postal operations and restore Postal Service to that in place on January the first, 2020. That’s what you’re asking.
DAVID BERG: Yes. We want to go back to the status quo, ante, we want to go back to the days before there was this conscious slowdown of Postal Services, of collecting, processing and delivering the mail on time.
BILL MOYERS: David Berg, thank you very much for joining us.
DAVID BERG: Oh, it was my pleasure. Good to see you, Bill.
ANNOUNCER: Thanks for listening to Moyers on Democracy. On our website you can read the legal filing for this case. Until next time, you’ll find all this and more at Billmoyers.com
