The U.S. Postal Service blew a court-ordered deadline Tuesday to sweep mail-processing facilities in more than a dozen states for missing election ballots that could number in the hundreds of thousands.
U.S. District Court Judge Emmet Sullivan in Washington ordered the sweep Tuesday morning after the Postal Service said its delivery performance had dropped over the past five days and could not say whether more than 300,000 ballots received in its facilities had been delivered.
The sweep was to happen in 12 postal districts, including in battleground states Arizona, Florida, Georgia, Pennsylvania, Texas and Wisconsin.
Sullivan gave the agency until 3:30 p.m. to finish the task.
The Postal Service said in its update to Sullivan at 4:30 p.m. that it was unable to conduct the sweep because it would have “significantly” disrupted its Election Day activities. Instead, the agency said, it would continue its preplanned daily review process in its 220 facilities nationwide that process ballots and would try to deliver any remaining ballots.
In a response to the Postal Service later on Tuesday, Sullivan wrote that because postal inspectors were scheduled to be onsite at processing facilities from 4 p.m. to 8 p.m. and work to resolve issues as quickly as possible, he would let the process continue. However, he admonished that federal officials should be prepared to “discuss the apparent lack of compliance” at a hearing at noon Wednesday.
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The window is closing fast. The deadline for mail-in ballots was at the close of polls Tuesday night or had already passed in 29 states.
Reports of undelivered ballots cropped up over the weekend, including in Miami-Dade County, Florida. A sweep of the Princetown Post Office in Miami found 62 ballots.
Timely delivery of the ballots has been a concern and voting rights activists worry the loss of ballots, especially in battleground states, could alter the results of the presidential election.
In Pennsylvania alone, 1 of every 2 ballots rejected in the 2016 presidential election was because of a missed deadline. Donald Trump defeated Hillary Clinton that year by 44,292 votes.
A missed deadline is the second most common reason for rejected absentee ballots across the U.S., behind non-matching signatures.
Across the nation, more than 50,000 ballots were rejected for arriving past the deadline in this year’s June primary election, according to an NPR analysis.
“The most important thing that needs to happen now is for all the ballots to be identified, swept up and delivered to elections offices that have poll closing deadlines today,” said Wendy Weiser, director of democracy at the Brennan Center for Justice at New York University Law School, in response to the court filings Tuesday.
If that doesn’t happen, Weiser said, lawsuits and other actions are likely.
“If the Postal Service doesn’t do that, I think there will be a reasonable argument on behalf of voters whose ballots arrive late,” she said. “It would be illegal and unfair to disenfranchise them, assuming they submitted their ballots reasonably and there was an obstruction by the Postal Service that led to the outcome.”
Because the election involves a “candidate who oversaw the department that was obstructing the Postal Service,” she said, that would “raise legitimate concerns of fairness and impropriety.”
States caused some of the issues
But the problem lies with state elections rules more so than with the USPS, said Tammy Patrick, a former elections official and a senior advisor to the elections program at the Democracy Fund.
Many of the 300,000 some ballots that couldn’t be tracked are among more than a half million ballots requested in the three or four days leading up to Election Day in states where late ballot requests are allowed, Patrick said.
Many are in states where voters were allowed to request a mail-in ballot as late as Monday, or where elections officials negotiated sweetheart deals with postal officials to hand postmark the ballots and deliver them rather than sending them to regional processing centers where they could be machine tracked.
“They say don’t send our ballots to the plant, just bring them over to us,” she said. “That has caused some issues.”
She contends the measures required by Sullivan are already part of the policies in place at the postal service.
“Everything that is in the documents and the court order are the sort of policies and recommendations the post office has been doing,” she said. “At a certain point, time just runs out.”
The Postal Service has delivered more than 126 million ballots, including blank and completed ones, spokesman David Partenheimer wrote in an email to USA TODAY on Tuesday.
The Postal Service continues to “implement extraordinary measures, including operating special runs of collected ballots to local boards of elections” to ensure ballots are cleared and delivered, Partenheimer said.
The daily reviews at all 220 facilities that process ballots have been taking place since Oct. 29, said Debra Fetterly, a Postal Service spokeswoman for South Florida and Alabama.
The court filings came in a lawsuit filed in August by the NAACP and other groups to ensure timely mail delivery before the elections. Changes over the summer by Postmaster General Louis DeJoy would have restricted services and increased delivery times.