A federal judge blasted the U.S. Postal Service on Wednesday because it did not follow his order to sweep mail-sorting facilities for undelivered ballots by Tuesday afternoon.
That led to a hearing Wednesday at which government attorneys were asked to explain why they did not start inspecting Postal Service facilities in 12 key regions at 3 p.m. ET on Election Day, as District Judge Emmet Sullivan of Washington, D.C., had ordered.
"It just leaves a bad taste in everyone's mouth for the clock to run out, game's over and then we find out that there was not compliance with a very important court order," Sullivan said during the hearing.
Joseph Borson, a Justice Department attorney representing the Postal Service, said agency officials told him after Sullivan issued the order Tuesday that there was not enough time to comply with it. Postal Service agents were not in position to sweep facilities across the United States, although they had conducted inspections of all 220 facilities earlier in the day.
"I wish we knew that earlier, so we could convey that," said Borson, who said the Postal Service had conducted sweeps throughout the day, which began at 7 a.m. ET on Election Day and continued until evening.
Inspections on Tuesday and Wednesday did turn up ballots that hadn't yet reached election boards but not enough to swing the election in the respective states. All those ballots will also now be counted.
A court-ordered sweep of Texas's 14 facilities that came during the hearing on Wednesday turned up 815 ballots. Those have since been delivered to the correct election boards.
Thirteen undelivered ballots were found on Tuesday, all in Pennsylvania, and they were immediately delivered to local boards of elections before the count. Three more ballots in North Carolina were found Wednesday, and those will be counted.
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In testimony during a second hearing Wednesday, Kevin Bray, the agency's top executive overseeing election mail, said that while the Postal Service did not keep a consistent count of ballots it found during the sweeps on Election Day, "everybody was on the floor."
"We called an all-hands-on-deck: all the support staff, all the supervisors constantly looking for and monitoring for election mail, sweeping it down and making the delivery," Bray said.
The overarching issue is about 300,000 mailed ballots that were not scanned as having been delivered by the Postal Service, according to Postal Service data. Many on social media were alarmed, believing that meant the ballots had gone missing, which the agency said was not the case.
The Postal Service, postal workers and some voting advocates emphasized that just because the 300,000 ballots were not scanned did not mean they were not delivered. The agency said the insinuation that "there are unaccounted ballots within the Postal Service network is inaccurate" and insisted that the "ballots were delivered in advance of the election deadlines."
"We employed extraordinary measures to deliver ballots directly to local boards of elections," said Martha Johnson, a spokeswoman for the Postal Service. "When this occurs, by design, these ballots bypass certain processing operations and do not receive a final scan. Instead, they are expedited directly to the boards of elections. We remain in close contact with state and local boards of elections, and we do not currently have any open issues."
Both sides said the agency trapped ballots at post offices and expedited them to boards of election in the final weeks of the campaign. By doing that, however, the Postal Service sacrificed tracking data to ensure the ballots' quick delivery.
Bray said the intention was to expedite election mail, not worry about scanning every ballot.
"When we wrote the policy, we said we're going to accelerate the mail," Bray said.
Critics of the Postal Service, which faced mass condemnation during the summer over delayed mail, said the agency has again recorded a decline in on-time deliveries in recent weeks, according to the organization's data.
The Postal Service has maintained in court documents that regular mail delays are due to the pandemic and workforce issues.
Michael Barber, a Postal Service operations manager in Texas who has worked for the agency for 30 years, said in testimony before Sullivan this week that pulling the ballots was "the right thing to do" but that it caused bad optics.
"We're making our service performance look worse than it is because we're not allowing those successful pieces to be measured as a success," Barber said.
The attorneys representing voter groups and the NAACP demanded Wednesday that someone from the Postal Service testify about why it did not fulfill Sullivan's order.
They further requested that the agency begin an immediate sweep of its remaining facilities in states where mailed-in ballots can still be delivered, such as Texas, and that the sweeps continue until Friday in states like Pennsylvania and North Carolina.
The lawyers said they were increasingly frustrated by the government's response to their requests and the judge's order.
"We ask for something, the government says, 'We're already doing that,'" one of the plaintiff's attorneys said. "We say OK, let's put it in the court order, and then when we get to the implementation of the court order, it's different from what was said in the first place."
During the second hearing of the day, Sullivan ordered that sweeps begin at processing facilities in Texas for ballots postmarked Tuesday or before, which caused them to find 815 ballots.
Advocates and the Postal Service had warned voters that they needed to mail their ballots within a week of their states' deadlines. If they were past those dates, they should hand-deliver their ballots.
Sullivan said he expected to have Postmaster General Louis DeJoy testify, as well, to respond to the Postal Service's failure to fulfill his order. But he said the focus in the immediate future was on ensuring that all the ballots were delivered.
"Tell your clients they're not off the hook," Sullivan told the Postal Service's lawyer, "but I’m going to focus on the pressing issues right now.”
