WASHINGTON (CN) — The U.S. Postal Service failed to comply with a court order on Tuesday to sweep its facilities to ensure no ballot was left behind on Election Day, including in battleground states like Florida and Pennsylvania.
U.S. District Judge Emmet Sullivan had ordered USPS to carry out “all clear” checks in processing facilities “to ensure that no ballots have been held up and that any identified ballots are immediately sent out for delivery.”
But the Justice Department said Tuesday evening that there are only one or two inspectors on site in any one facility and they would not “have the ability to personally scour the entire facility.”
“Indeed, doing so would be impractical (given the size of that facility) and would take them away from their other pressing Election Mail related responsibilities,” Justice Department attorney John Robinson wrote to the court.
The government noted that a daily review process was already underway from 4 to 8 p.m. as the final ballots were cast.
“Given the time constraints set by this Court’s order, and the fact that Postal Inspectors operate on a nationwide basis, Defendants were unable to accelerate the daily review process to run from 12:30pm to 3:00pm without significantly disrupting preexisting activities on the day of the Election, something which Defendants did not understand the Court to invite or require,” Robinson wrote.
Sullivan, in a lengthy written order, said that he would allow the U.S. Postal Inspection Service, the law enforcement arm of the agency, to continue with its planned daily checks, walking the processing facilities and reviewing election mail logs.
But the judge also told the government to be ready in a hearing Wednesday afternoon “to discuss the apparent lack of compliance with the Court's order.”
Early voting smashed records ahead of Election Day, with over 103 million ballots cast before the polls opened on Nov. 3 — over 74% of the total turnout in the 2016 election. Tens of millions of those ballots were cast by mail.
A Clinton appointee, Sullivan said during a videoconference hearing Tuesday morning he was “extremely sensitive” to imposing an unreasonable burden on postal officials on Election Day.
But the judge said his order to sweep 12 USPS districts across the country that registered low processing scores for ballots delivered on Monday would be very simple. He denied a request for an emergency hearing from groups suing USPS after the agency failed to comply.
The directive followed the NAACP and advocacy group Vote Forward raising concern over roughly 300,000 ballots that arrived at processing facilities but could not be tracked.
The ballots were scanned entering post offices but no “destination scan” confirmed they were delivered.
But USPS has repeatedly stated in court filings and daily hearings over the last week that the data is not an indicator of delivery performance because postal workers were removing ballots from the flood of mail to deliver them faster, and manually postmarking some, meaning the election mail bypassed the outbound scan.
"Defendants maintain that the data possesses little to no analytical value and should not be considered a reliable indicator of performance,” Robinson wrote in an Oct. 27 notice.
Sullivan’s order had applied to postal facilities in Central Pennsylvania, Philadelphia, Detroit, Colorado/Wyoming, Atlanta, Houston, Alabama, Northern New England, Greater South Carolina, South Florida, Lakeland and Arizona.
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