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Judge 'shocked' USPS disregarded order for postal inspectors to search for undelivered ballots

By Kevin Johnson and Dinah Voyles Pulver, USA Today | November 4, 2020

A federal judge upbraided lawyers for the U.S. Postal Service on Wednesday after the agency failed to meet his Election Day order for postal inspectors to sweep mail processing facilities in more than a dozen states for missing ballots.

U.S. District Judge Emmet Sullivan said he was “shocked” to learn that facilities in 12 postal districts, including some in crucial battleground states of Arizona, Florida, Georgia, Pennsylvania, Texas and Wisconsin, had not been searched, leaving authorities unable to determine whether all ballots had been delivered.

“It leaves a bad taste in everyone’s mouth for the clock to run out – game over,” Sullivan told government lawyers in a hastily called hearing Wednesday in Washington. “I’m not going to forget it, either.”

Sullivan later adjourned the hearing, summoning Kevin Bray, the USPS’ executive in charge of election mail processing, to appear in court to explain why his order was disregarded. The judge also ordered the postal service to conduct two sweeps of its 14 mail-processing facilities in Texas for any ballots postmarked on Election Day or earlier.

The Texas sweeps produced 815 ballots, 548 in the first sweep and 267 in the second. Postal supervisors reported most of the ballots were taken to elections offices by 5 p.m. But, in Fort Worth, the postal service said two ballots couldn’t be delivered to Wichita Falls due to travel times, and would be delivered Thursday.

The deadline for mail-in ballots in Texas, where President Donald Trump leads Joe Biden by a little more than 600,000 votes, was the close of day Wednesday.

In his testimony, Bray spent two hours defending the postal service’s efforts to expedite the sorting and delivery of ballots to make local election deadlines.

Nationwide between Sunday and Monday, the postal service directed an estimated 10,000 ballots to the Express Mail system for overnight delivery, Bray testified. Those pieces were either delivered by air or truck, depending on the proximity of the destination.

The effort took on fresh urgency as the election approached. Bray told the court he instructed staffers to “do whatever you have to do” to accelerate election-related pieces. Beginning Sunday, he said it was mandatory for all ballots to be designated for overnight mail — a process that would now continue for states still accepting ballots for counting.

Although 29 states required mail-in ballots to be delivered by Tuesday, the remaining states have deadlines through the next two weeks. Mail-in ballots in Pennsylvania, for example, are due by Friday, while North Carolina ballots are accepted this year up to nine days after Election Day. California’s deadline -- 17 days after the election -- is the latest.

In court filings Wednesday morning, the postal service explained it had not complied with Sullivan’s deadlines for postal inspectors to search its facilities on Election Day because the inspectors had been scheduled to come in later in the day. Postal service attorneys wrote the inspectors were scheduled “to conduct inspections at the most critical time when the vast majority of any ballots processed on Election Day would be on site.”

The service confirmed its employees — but not postal inspectors — had thoroughly searched all interior and exterior areas of its 220 mail processing facilities on Election Day, “as part of a longstanding review process in place to ensure that no ballots are left behind.”

On Tuesday in Pennsylvania, those searches produced a total of 13 ballots at two facilities, the postal service said. Three ballots were found and delivered in Johnstown, and 10 in Lancaster.

Sullivan is overseeing proceedings in a lawsuit filed in August by the NAACP and other groups to ensure timely mail delivery before the elections.

He issued the Election Day order after a growing frustration with reports by the postal service over the weekend that its delivery times were slowing and that it could not say for sure whether some 300,000 received ballots nationwide had been delivered.

The postal service on Wednesday said “the assumption that there are unaccounted ballots within the Postal Service network is inaccurate.” To save time, ballots were delivered directly to elections’ officials and bypassed the scanners that normally track the mail, postal service spokeswoman Martha Johnson said Wednesday.

“We remain in close contact with state and local boards of elections and we do not currently have any open issues. Additionally, the Postal Inspection Service has physically inspected all plants that process ballots.”

Bray testified that on Election Day postal officials conducted continuous checks throughout their facilities in an attempt to property direct ballots. The effort, he said, involved “all hands on deck” with staffers “constantly looking for election mail.”

At the same time, he said the system did not always operate as intended. He said sorting errors could sometimes cause election mail to go to “Santa Barbara instead of San Antonio,” resulting in delayed deliveries.

Despite Sullivan's harsh words at the start of the hearing, the judge lauded Bray and the larger postal service, saying: "they are the ones who make the system work."

However, Sullivan said he had not forgotten that his sweep orders were not carried out.

"I want to focus on the pressing issue (of) where are those ballots and get them counted," Sullivan said. The court proceedings are scheduled to resume Thursday at 11.

Because Bray testified he did not regularly monitor the number of properly post-marked ballots that were left behind in postal sites in the days leading up Election Day, Sullivan asked the postal service to provide the number recorded Monday for its entire system.

The performance of the postal service and its ability to handle the huge surge in mail-in ballots has been at issue for months in lawsuits and congressional hearings. Voter groups questioned whether ballots would be delivered on time given the global pandemic, cost-cutting measures proposed by Postmaster General Louis DeJoy and the surge in mail-in ballots.

S. David Fineman, chairman of the Fair Elections Center and a former chairman of the board of governors for the postal service, said the postal service should have been better prepared to deliver ballots and meet its own timely delivery targets.

That “had to be given priority and someone in that food chain decided this should not get the priority it deserved,” Fineman said.

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