A federal judge harshly criticized the U.S. Postal Service on Wednesday, saying that the agency had failed to comply with his order to sweep postal facilities for leftover mail-in ballots in battleground states where election officials continue to count votes.
Judge Emmet G. Sullivan of Washington, D.C., said he would consider ordering more inspections. On Tuesday, he had ordered the Postal Service’s law enforcement arm to conduct a series of sweeps for mail ballots in a dozen postal facilities, including in central Pennsylvania, Philadelphia, Atlanta, Arizona and Michigan’s upper peninsula.
The Postal Service did not conduct those sweeps by Sullivan’s 3 p.m. deadline. The agency said in court filings Wednesday that they did search for ballots in all the ordered locations later in the day, but that the deadline was not “operationally possible.” The sweep turned up 13 delayed mail ballots: three in a Johnstown, Pa., mail facility and 10 in Lancaster, Pa. All were referred to Postal Service management for expedited delivery, the agency said.
“I’m not pleased about this 11th hour development last night,” Sullivan said in a hearing on Wednesday. “Someone might have a price to pay for that.”
The Wednesday hearing took place as election workers continued to count thousands of mail-in ballots in Pennsylvania, Michigan and Georgia, where the outcome between former Vice President Joe Biden and President Trump remains unclear.
In a court filing, Kevin Bray, the agency’s top executive overseeing election mail, said that processing facilities are typically busiest between 4 p.m. and 11 p.m., as mail is returned from carrier routes and local post offices. Sweeps in the afternoon, as Sullivan ordered, would not yield many ballots, he said.
Bray is scheduled to appear at another hearing Wednesday in front of Sullivan to answer questions about whether the agency is able to comply with any additional orders.
Sullivan also said that the postmaster general, Louis DeJoy, should also have to explain his agency’s failures to make meaningful changes within the agency after an injunction in early October aimed at boosting mail delivery speeds.
“The postmaster [general] is either going to have to be deposed or appear before me and testify under oath about why some measures were not taken after the court issued its injunction,” Sullivan said.
The Postal Service said in court filings earlier this week that nearly 300,000 ballots had been scanned into the U.S. mail system since Oct. 24 but had not been scanned again to show they had been delivered, including more than 11,000 in Pennsylvania, nearly 16,000 in Florida and more than 6,000 in Michigan.
The data raised alarm among voting rights groups that some mail ballots could be delivered too late to be counted.
Postal Service officials said that a missing destination scan does not automatically mean that a ballot was not delivered. They said workers were pulling ballots from the automated processing system and delivering them directly to elections officials, while other mail is sorted by hand because of physical flaws like smudged barcodes.
For example, Bray said, a processing plant in North Texas has an agreement with most of the state’s elections officials to set aside ballots and deliver them directly to clerks without a delivery scan.
The order is part of one of several lawsuits against the Postal Service over cost-cutting measures that slowed mail delivery this year and raised concerns that mail-in ballots would not be delivered on time.
The Postal Service raised concerns about complying with the judge’s order, saying that they didn’t have enough inspectors to finish the sweep in the required time.
Officials were unable to expedite the review process to run from 12:30 to 3:30 p.m. Eastern, as required by Sullivan “without significantly disrupting preexisting activities on the day of the Election,” said attorneys for the postal service. Instead, scheduled reviews have been underway since 4 p.m and will continue until 8 p.m. Eastern.
Nationally, on-time processing for mail ballots heading back to elections officials rose from 89.59% Monday to 93.25% on election day, the Postal Service said. Performance was lower in some regions, including the Great Lakes distribution area, which includes the battleground states of Michigan and Wisconsin. There, just 78.8% of ballots were processed on time Tuesday, the agency said.
In the Atlanta area, 82.17% of ballots heading back to election officials were processed on time Tuesday, the agency said. Georgia does not count mail ballots that arrive after the polls close on election day.
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