WASHINGTON - The U.S. Postal Service turned down a federal judge’s order late Tuesday afternoon to sweep mail processing facilities serving 15 states, saying instead it would stick to its own inspection schedule. The judge’s order came after the agency disclosed that more than 300,000 ballots nationwide could not be traced.
U.S. District Judge Emmet Sullivan of the District of Columbia had given the mail agency until 4:30 p.m. to conduct the “all clear” checks to ensure there would be enough time to get any found ballots to election officials before polls closed. His order affected 12 postal districts spanning 15 states.
But in a filing sent to the court just before 5 p.m., Justice Department attorneys representing the Postal Service said the agency would not abide by the order to better accommodate inspector's schedules.
"This daily review process, however, occurs at different times every day," DOJ attorney John Robinson wrote. "Specifically, on Election Night, it is scheduled to occur from 4 p.m. to 8 p.m., a time period developed by Postal Service Management and the Postal Inspection Service in order to ensure that Inspectors are on site to ensure compliance at the critical period before the polls close. 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 12:30 p.m. 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."
Sullivan's order came after the agency disclosed that 300,523 ballots nationwide received scanned that indicated they had entered postal processing plants, but had not received exit scans, leaving voting rights advocates worried that hundreds of thousands of votes could be trapped in the mail system on the eve of the election.
The NAACP, which brought the lawsuit against the Postal Service with a group of voters and other civil rights groups, asked Sullivan for an emergency hearing to discuss the inspection schedules.
"This is super frustrating," NAACP attorney Allison Zieve said. "If they get all the sweeps done today in time, it doesn't matter if they flouted the judge's order. They say here they will get the sweeps done between 4 p.m. and 8 p.m., but 8 p.m. is too late, and in some states, 5 p.m. is too late."
The Postal Service began election mail "all clear" sweeps in January, agency spokesman David Partenheimer wrote in an emailed statement, to search for misplaced political mail (such as campaign ads) and election mail (ballots, ballot applications and voter registration information).
Since Oct. 29, he said, agents from the U.S. Postal Inspection Service, the agency's law enforcement arm, conducted daily reviews at 220 ballot processing facilities. Inspectors walk the facility and observe mail conditions and check daily political and election mail logs.
In the past 14 months, Partenheimer said, the Postal Service has processed more than 4.5 political and election mail items, up 114% from the 2016 general election cycle.
"Ballots will continue to be accepted and processed as they are presented to us and we will deliver them to their intended destination," Partenheimer said.
Timely ballot processing scores, which indicate the proportion of ballots sorted, postmarked and transported within the agency's one- to three-day service window, have worsened in the run up to Election Day, according to data filed in federal court. In 28 states, election official must received by the end of election day to be counted.
Voting and postal experts say the mail agency should be able to process 97% of incoming ballots - or completed ballots sent to election officials. But data show the Postal Service missed that mark seven out of eight days. And in the past five days, processing scores dropped from 97.1% on Oct. 28, to 89.6% on Nov. 2 (the Postal Service did not report Sunday data).
In 17 postal districts that cover 151 electoral votes, Monday's on-time processing rate was even lower: 81.1%.
Sullivan ordered officials from the U.S. Postal Inspection Service, the agency's law enforcement arm, or the Postal Service Office of Inspector General, its independent watchdog, to inspect all processing facilities in the districts of Central Pennsylvania, Philadelphia Metro, Detroit, Colorado/Wyoming, Atlanta, Houston, Alabama, Northern New England (Vermont, New Hampshire and Maine), Greater South Carolina, South Florida, Lakeland (Wisconsin) and Arizona (which includes New Mexico) by 3 p.m.
Justice Department lawyers representing the Postal Service cautioned that ballot processing scores could be unreliable. The figures do not include "first mile" and "last mile" mail handling steps that could add time to deliveries. The Postal Service has also encouraged local post offices to sort ballots themselves and make deliveries to election officials, rather than sending the items to regional processing plants.
More than 65 million Americans have voted using absentee ballots, according to the United States Elections Project, and more than 27 million mail ballots remain outstanding. Experts are encouraged by high ballot return rates in swing states that could soften the impact of mail delays. In Michigan, 85.6% of absentee ballots have been returned. In Wisconsin, 89.7% have been returned, and in Pennsylvania, 80.9%.
Sullivan has been more aggressive than judges in Pennsylvania, New York and Washington state to grant increased oversight of the mail. He's ordered the Postal Service to report daily data on ballot performance scores, and to provide written explanations each day for underperforming districts.
He has scheduled daily hearings - some of which have included sworn testimony from postal executives - over the agency's struggles. On Monday, he lamented the nation's crazy-quilt of mail-in voting rules, saying the system should be overhauled to "make sure it works seamlessly and better for the American voters."
"When I read about the astronaut voting seamlessly from outer space, there must be a better way for Congress to address all these issues," he said.
Sullivan contrasted the chaotic mishmash of Election Day rules with the relative simplicity of the federal income tax deadline. "Think about it. Every year everyone knows to file taxes by April 15th. It's seamless. If you don't file, there's penalties. But everyone knows - that's a given."
By contrast, state vote-by-mail deadlines present a spaghetti-like tangle for the Postal Service and voters to navigate.
"Postmarks matter, postmarks don't matter . . .. Delivery matters, delivery after a date doesn't matter. Why can't there be one set of rules?" Sullivan said, concluding, "Someone needs to be tinkering with the system to make sure it works seamlessly and better for the American voters."
The Washington Post’s Spencer Hsu contributed to this report.