Law360 (November 3, 2020, 5:01 PM EST) -- A D.C. federal judge late Tuesday declined to interrupt the U.S. Postal Service's efforts to sweep facilities in more than a dozen places around the country for remaining ballots, but said the USPS would face questions for its "apparent lack of compliance" with court-imposed measures.

U.S. District Judge Emmet G. Sullivan said that it appeared USPS was conducting Election Day sweeps for ballots still in mailing facilities at over a dozen locations around the country. The court had ordered that inspectors sweep facilities between 12:30 p.m. and 3 p.m. Eastern time to ensure "no ballots were left behind."

Some of the specified facilities are located in closely watched states such as Pennsylvania, Georgia, Arizona and Florida. Judge Sullivan ordered the sweeps of the facilities after a group of voters and voter rights groups sued the USPS and Postmaster General Louis DeJoy in August, accusing them of making mail processing and delivery changes that "undermined USPS's ability to ensure the on-time delivery of mail ballots."

The Postal Service reported Tuesday afternoon that it was unable to meet the court's 12:30 p.m. to 3 p.m. time frame and instead would conduct the daily reviews at their previously scheduled time, from 4 p.m. to 8 p.m.

"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 3:00 p.m. without significantly disrupting preexisting activities on the day of the election, something which defendants did not understand the court to invite or require," the Postal Service told the court.

The USPS said that inspectors have been doing daily sweeps of all 220 facilities that process ballots since Oct. 29, and that those efforts have "intensified" through Election Day.

In addition to the sweeps, inspectors "also review election and political mail logs for accuracy and completeness, review in and around staging areas for election and political mail, scan for delayed mail, ensure election mail is processed expeditiously, and ensure no ballots are held for postage due," the agency told Law360 on Tuesday afternoon.

The voters rights groups that sued USPS quickly requested an "immediate" hearing, arguing that the USPS has not complied with the court's order. 

Judge Sullivan denied the plaintiffs' request Tuesday evening, noting the measures that the Postal Service said it was taking. But he added that the Postal Service would face questions about its response.

"Given the timing, the court is inclined to let [the USPS' current] process continue," the order said. "Defendants shall be prepared to discuss the apparent lack of compliance with the court's order at the status conference" scheduled for noon on Wednesday, the order concluded.

The exchange comes three days after Judge Sullivan told the U.S. Postal Service to enforce a multipart "extraordinary measures" policy meant to ensure that any ballots still in mailing facilities in the final days of the elections would be delivered by the close of Election Day.

In that Sunday order, Judge Sullivan told postal officials to "forthwith" — and by 9 p.m. that evening — ensure that facilities were taking concrete steps to expedite mail-in ballots, including through the use of ballot drop-off lines and by stationing clerks outside post offices to immediately postmark ballots.

Judge Sullivan also directed postal officials to use the USPS' Express Mail network for any ballots it had on Monday, Tuesday and after Election Day to "expedite ballots out of local service area to ensure timely delivery of ballots, unless there is a faster surface option through existing transportation."

Following the Sunday order, the plaintiffs on Tuesday told the court that, based on USPS data, roughly 300,000 ballots had gotten an "origin processing scan" but still didn't have a delivery confirmation. Post office data also showed "continuing delays" of ballots in a number of places around the country, according to the petition, including in Pennsylvania, Florida and Arizona.

Most states require mail-in ballots be delivered by the close of Election Day in order to be counted.

In a statement, New York Attorney General Letitia James said the court-ordered measures would "ensure the will of the people decides the outcome of this election, not the Trump administration."

James was among a handful of state and city law enforcement officials who sued the Trump administration in August over alleged changes at the USPS, including the removal of mailboxes and mail sorting machines, they said were intended to suppress mail-in voting and help President Donald Trump win a second term.

Counsel for the plaintiffs did not immediately respond to requests for comment Tuesday.

Plaintiffs are represented by Robert D. Fram and Shankar Duraiswamy of Covington & Burling LLP.

The U.S. Postal Service is represented by Kuntal Virendra Cholera and John Robinson of the U.S. Department of Justice.

The case is Vote Forward et al. v. Louis DeJoy, case number 1:20-cv-02405, in the U.S. District Court for the District of Columbia.

--Editing by Alyssa Miller.

Update: This story has been updated to include new developments.

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