WASHINGTON (CN) — A federal judge railed at the U.S. Postal Service on Wednesday for ignoring an order to sweep postal facilities for mail-in ballots on Election Day.
U.S. District Judge Emmet Sullivan said that someone at the agency would have to pay for its admitted noncompliance, suggesting that Postmaster General Louis DeJoy himself would eventually be called to appear before the federal court in Washington.
“I’m not pleased about this eleventh-hour development last night,” the judge said.
“I would like you to explain just what the heck happened yesterday,” he told the Justice Department by videoconference.
Polls had been on the cusp of closing Tuesday evening when the government said it would be “impractical” for postal inspectors to “personally scour” facilities in a dozen USPS districts that had registered low processing scores for ballots delivered in the days leading up to Nov. 3.
To “ensure that no ballots have been held up and that any identified ballots are immediately sent out for delivery,” Sullivan had ordered sweeps of the sites Tuesday from 12:30 to 3 p.m.
A government witness, the Postal Service official overseeing 2020 election mail operations, testified in the hearing that ran through Wednesday afternoon that “all clear” checks were carried out on Election Day to locate misplaced ballots, but admitted that the number of such ballots had not been recorded.
Postal inspectors had performed their routine checks to keep mail moving through the system Tuesday evening, the government said, but did not have the necessary personnel on site to carry out certified sweeps of entire facilities to check for missed ballots when Sullivan’s order came down Tuesday afternoon.
“There wasn’t enough time,” Justice Department attorney Joseph Borson said Wednesday.
Noting that he would have been “very sensitive” to any complaint, Sullivan questioned why the government had not notified him immediately when it realized complying with the order would be impossible.
“It just leaves a bad taste in everyone’s mouth, for the clock to run out, game’s over,” the judge said.
Borson, whom Sullivan said had been a “straight shooter” through the entire litigation, admitted the government was in the wrong.
“I agree that we absolutely should have informed you earlier,” he said.
For more than three hours, attorneys drilled the USPS executive overseeing 2020 election mail operations, Kevin Bray, on the apparent failure to carry out Tuesday’s sweeps.
A long line of questions also followed on the 300,000 ballots that the agency cannot identify were delivered — having been scanned entering postal facilities but with no recorded destination scan on their way out.
Bray, who took on the role of overseeing the Postal Service's election operations just four weeks ago, sought to reassure the parties suing the agency that the absence of a final scan on ballots does not mean they were not delivered.
There is no digital trail to follow because postal workers had been removing ballots from the mail stream to ensure timely processing before Election Day, at times handling them manually and delivering them to elections boards without a final destination scan, he testified.
“We did that intentionally so we could expedite the delivery, not to cause somebody to think it's lost,” Bray said.
In daily hearings and court filings, the government has said the decision came down to either tracking the ballots or ensuring timely delivery — and it chose the latter.
The NAACP and advocacy group Vote Forward, both suing the USPS over policies they said would delay election-mail delivery, objected to what they called the “evolving nature” of the government’s explanations for how it is tracking ballots.
“The government simply defied an order of the court,” NAACP attorney Samuel Spital said.
Both parties pressed Bray on how to recover data that was not originally recorded by the Postal Service to ensure that all mail-in and absentee ballots cast in states counting those postmarked by Election Day reach their final destination.
The focus turned to four USPS districts, in the Carolinas and Pennsylvania, swing states where plaintiffs asked that site managers be available Thursday morning to certify that sweeps for lost ballots had been conducted.
The government also addressed a report raised before Sullivan Wednesday that around four days’ worth of boxes of mail-in ballots were sitting on the loading dock at the USPS facility in Greensboro, North Carolina.
Borson said officials at the plant checked during the hearing and reported no ballots remaining on site.
“All local ballots have been dispatched today,” the Justice Department attorney said.
Saying he had been instructed when he came on the job to “move heaven and earth” to ensure timely election delivery, Bray stressed that he wanted all election mail to reach its destination.
While admitting he wouldn’t be surprised if some left behind ballots were located, the official said he would not expect there to be thousands of such ballots, as reports have suggested.
But Bray also conceded to having no way to track the number of ballots yet to be delivered. While he had been closely communicating with site managers to make sure checks similar to what Sullivan ordered Tuesday were carried out, no system was in place to record any ballots located in the process.
“I don’t look at the numbers per se,” he said. “I just want to see that they’re following the process.”
While one attorney said he was “struck by the randomness” of how problems inside the Postal Service had been made apparent in recent weeks, Sullivan praised Bray and the outstanding dedication of mail workers under him.
The judge said he was willing to turn the other cheek on the agency’s failure to comply with his Election Day order — for now.
“Tell your clients they’re not off the hook,” Sullivan said to the Justice Department, emphasizing he wanted to focus on the pressing issue at hand: getting ballots counted.
Crunch time was how the judge described the next 24 hours, ordering the government to report the number of ballots not delivered on Election Day by 9 a.m. on Thursday.
“I’m not a bully but this is very important information,” Sullivan said.
The agency should be grateful to have Bray as its “mail flow expert,” the judge told the witness.
Clearly unnerved by the possible perception that the USPS had been intentionally delaying ballot delivery, the official said he wanted to provide all necessary information to the court.
Bray added: “I want every ballot delivered.”
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