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USPS Cannot Account for 300,000 Ballots On Election Day, Fails to Comply With Sweep Order

Man open ballot he got in the mail
By Joseph Fawbush, Esq. on November 04, 2020 11:52 AM

Despite significant concerns on both sides of the aisle, it appears election tabulation has gone about as well as expected - for the most part. Delays were expected, and the system handled record turnouts in difficult circumstances reasonably well. Considering the anxiety and emotion our country is experiencing, it could have been much worse.

That is not to say it couldn't have been better. One notable event involves the United States Postal Service failing to account for 300,000 ballots on Election Day, including in still-contested states such as Pennsylvania. Judge Emmet Sullivan, a D.C. federal district court judge in the news lately for presiding over the Michael Flynn trial, ordered the USPS to conduct a sweep of facilities to account for any missing ballots early afternoon on Election Day.

The order was part of a lawsuit brought by the NAACP and other organizations that challenged USPS changes made before Election Day. On October 27, Judge Sullivan ordered daily hearings to ensure his prior injunctions against potential USPS changes regarding mail-in ballots were complied with. The USPS disclosed the unaccounted-for ballots on the morning of Election Day in such a hearing.

USPS Fails to Comply

Judge Sullivan's order affected 12 postal districts in 15 states. However, the USPS said it would not comply with the order. According to the Department of Justice, postal inspectors "were unable to accelerate the daily review process to run from 12:30 p.m. to 3:00 p.m. without significantly disrupting preexisting activities on the day of the Election."

Instead, it continued with its usual schedule and conducted a sweep between 4:00 p.m. and 8:00 p.m., which the NAACP argued was too late. Many states will not accept ballots received after the polls close on Election Day, meaning hundreds of thousands of votes could be discounted. However, currently it is not clear how many ballots were actually delayed or lost. 

Judge Sullivan Expresses Anger

Judge Sullivan denied the NAACP's motion for an emergency hearing on Tuesday, writing that the USPS was sweeping for ballots "as expeditiously as possible. Given the timing, the court is inclined to let this process continue." Judge Sullivan asked about the USPS' timing at the daily hearing on Wednesday, however, saying that the Postmaster General Louis DeJoy would have to appear in court before him to explain its actions. 

Meanwhile, postal inspectors are reviewing unaccounted-for ballots, including logs, scans for delayed mail, and whether any ballots were not mailed due to postage due. We will eventually be able to know how many ballots were mailed but uncounted due to delays or other issues with mail delivery. 

Related Resources

D.C. Circuit Court of Appeals Again Upholds Transparency in Political Advertising Donations (FindLaw's U.S. D.C. Circuit)

11th Circuit Finds Georgia County's Redrawn School Districts Dilute Voting Power of Black Residents (FindLaw's U.S. 11th Circuit)

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