U.S. District Judge Emmet G. Sullivan blasted the government for failing to tell him that his order requiring a sweep between 12:30 p.m. and 3 p.m. on Tuesday couldn't be feasibly carried out in time for him to craft a solution.
Instead the court said it was hit with an "eleventh-hour development" — news that the Postal Service would conduct the reviews several hours later, at their previously scheduled time — which left him steaming.
"Someone may have a price to pay for that," Judge Sullivan said.
That someone is very likely Postmaster General Louis DeJoy, who the judge said he expects to have in the hot seat soon to answer for the agency's behavior. But for now, time is of the essence and the court needs to speak to someone at the Postal Service about getting quick compliance with a new order to be issued Wednesday.
When U.S. Department of Justice attorney Joseph E. Borson said he was checking on the availability of one postal executive, the court bristled.
"No, Mr. Borson. He doesn't get to decide when he's available," the judge said loudly. "It's up to the court to tell him when to be available."
It's already too late for ballots intended for certain states, like Georgia, where the rules invalidate any absentee ballots that arrive after polls close on Election Day. But for others, including Texas and Pennsylvania, it's now a race against the clock to get those ballots turned in by the deadline, the court heard.
Time is of particular essence for Texas ballots. State rules say that ballots postmarked by Election Day must be in by close of business Wednesday to count.
The voters and voting rights groups who are suing over the U.S. Postal Service's election mail-sorting policies are now racing against the clock, they told the court, after the government chose to treat the court's orders "at best as suggestions."
They wanted Judge Sullivan to issue a new order or set of orders that would do three things: First, an "unequivocal order, with no confusion" that any ballots within the system get to where they're supposed to be by the impending deadlines. Second, another clear order requiring the postal service to immediately sweep for a delivery of ballots intended for election boards in Texas. And third, a twice-daily sweep for remaining ballots at certain facilities with orders to make sure that the government certifies those ballots and reports how many they're finding with each sweep.
Judge Sullivan delivered on part of their request. After the first hearing ended, he issued a minute order requiring USPS to contact all mail processing facilities in Texas and order an immediate sweep for ballots, as well as another later in the day. The court order was to be relayed to the facilities orally and by email no later than 2 p.m Central time.
After about 30 minutes of discussion, Judge Sullivan scheduled another hearing for less than an hour later, where he heard from the executive lead for mail processing for the 2020 elections, Kevin Bray.
"Everybody take a deep breath," the judge said at the close of the first hearing. "We're going to get through this."
When the court reconvened, the voter groups grilled Bray for hours on the ins and outs of USPS's process for sorting and shipping ballots. The postal worker demurred when pressed to answer about how many ballots went undelivered by Election Day, but agreed to investigate reports that boxes of ballots had been left sitting unsent near a Greensboro, North Carolina, facility.
Bad news came halfway through the nearly three and a half hour long second hearing when counsel for the government said he had an update. USPS missed the deadline for contacting its Texas facilities by more than an hour.
"Something I really don't want to be saying," counsel for the government said. "But I was informed that the email didn't go out until 3:15. I have no excuse, but I wanted to bring that to the court's attention."
The court warned that it wasn't going to "turn the cheek on those issues," but also wasn't going to take a detour to deal with the government's compliance right now.
"What I want to focus on is getting all those ballots out of the postal facilities so they can be counted," he said. "That's my primary focus right now."
Earlier in the day, the judge apologized for raising his voice at the Justice Department attorney, clarifying that his anger was directed at the government and not Borson. But Judge Sullivan said he didn't want the attorney to "keep falling on the sword" for USPS.
"It's your clients I have an issue with. Each and every one of them, starting at the top of the food chain," the judge said.
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.
--Editing by Amy Rowe.
Update: This story has been updated to include information about a later hearing.
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