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Law360 (November 5, 2020, 4:32 PM EST ) A D.C. federal judge on Thursday ordered mail facilities in North Carolina and Pennsylvania to conduct sweeps for undelivered ballots twice a day after the U.S. Postal Service submitted data showing thousands of ballots postmarked over the weekend were not delivered to local election boards by Election Day.
Mail facilities serving states with extended ballot receipt deadlines must carry out ballot sweeps twice a day and confirm that delivery of identified ballots has been expedited, a federal judge said Thursday. (AP Photo/Julio Cortez, File)
U.S. District Judge Emmet G. Sullivan issued the order following a hearing in three consolidated suits alleging that mail-in ballot delays were interfering with Americans' ability to vote. Government attorneys and voting rights advocacy groups, including the NAACP, jointly requested the ruling.
Under the order, plant managers overseeing postal facilities in Greensboro, North Carolina, and mid-Carolinas, as well as Philadelphia and central and western Pennsylvania, must coordinate with all local county boards of elections to deliver ballots postmarked on or before Nov 3. by 5 p.m. local time.
In a separate ruling, all USPS mailing facilities serving states with an extended ballot receipt deadline must, until their respective deadlines pass, carry out ballot sweeps no later than 10 a.m. local time followed by a mid-to-late afternoon ballot sweep to ensure any identified local ballots can be delivered on that day.
After completing a sweep, each facility must report to USPS headquarters the total number of ballots identified and confirm that delivery of those ballots has been expedited to meet the state's deadline.
Starting Thursday, "and until further order of the court, defendants shall promptly submit to plaintiffs a single report with the total number of ballots identified through daily sweeps, with one exception: for facilities that are located in states whose ballot receipt deadline is that day," the order added. "Defendants shall submit the results of those sweeps to plaintiffs immediately following its receipt of the results of the second sweep at these facilities."
Some states accept ballots for up to a week after Election Day, as long as they were postmarked by then. Pennsylvania's extended deadline is Friday. Meanwhile, North Carolina has a Nov. 6 statutory deadline, but the ballot receipt deadline has been extended to Nov. 12.
Judge Sullivan's orders come as ballots are still being counted by election officials in battleground states like Pennsylvania in the closely contested presidential election between Republican President Donald Trump and Democratic candidate Joe Biden.
During a contentious teleconference hearing Wednesday, Judge Sullivan tore into USPS for failing to comply with his Tuesday order, which required special Election Day sweeps for all remaining ballots at more than a dozen facilities across the country. USPS told the judge that it couldn't feasibly carry out the sweeps between 12:30 p.m. and 3 p.m.
Judge Sullivan warned that "someone may have a price to pay for that," and suggested he may order Postmaster General Louis DeJoy to testify under oath about the agency's failure to follow his order.
But for now, time is of the essence and the judge said USPS has to race against the clock to get undelivered ballots turned in to local election boards by their deadline. The judge instructed USPS on Wednesday to deliver outstanding ballots at facilities in Texas by 5 p.m. USPS later told the court that more than 800 ballots were found and delivered to county election officials.
During Thursday's phone hearing, Judge Sullivan did not address whether DeJoy will be called to testify nor how USPS will be held accountable for not complying with Tuesday's directive. But the judge appeared more pleased this time, often lauding career USPS workers for their service.
Plaintiffs are represented by Shankar Duraiswamy of Covington & Burling LLP, Allison M. Zieve of Public Citizen Litigation Group and Samuel Spital of NAACP Legal Defense & Educational Fund.
The U.S. Postal Service is represented by Joseph E. Borson of the U.S. Department of Justice's Civil Division.
The cases are Vote Forward et al. v. Louis DeJoy, case number 1:20-cv-02405, NAACP v. U.S. Postal Service, case number 1:20-cv-02295, and Richardson v. Trump, case number 1:20-cv-02262, in the U.S. District Court for the District of Columbia.
--Additional reporting by Nadia Dreid.
For a reprint of this article, please contact reprints@law360.com.
