UPDATE: Judge Sullivan has given the Post Office more time to perform the “sweeps” the court ordered [emphases ours]:
MINUTE ORDER. In view of 70 Defendants’ response to the November 3, 2020 Court order, the Court understands that “‘all clears’ [or facility sweeps] and successful certifications were conducted at all processing plants this morning by 10 am local time” pursuant to this Court’s previous orders. The Court further understands that Postal Inspectors are/will be on site at each processing plant between 4:00 PM and 8:00 PM local time today to conduct the “daily review process” designed “to ensure compliance at the critical period before the polls close.” The Court understands “compliance” to mean that the Inspectors will at that time identify and refer Election Mail in staging and non-staging areas to facility managers to resolve as expeditiously as possible. Given the timing, the Court is inclined to let this process continue. Accordingly, the Court DENIES 71 Plaintiff’s request for an immediate status conference. Defendants shall be prepared to discuss the apparent lack of compliance with the Court’s order at the status conference scheduled for 12:00 PM on November 4, 2020. Signed by Judge Emmet G. Sullivan on 11/3/2020. (lcegs3) (Entered: 11/03/2020)
Some election legal experts are already saying that “contempt could be on the table.”
the judge has scheduled a hearing for tomorrow morning
contempt could be on the table https://t.co/F61aFjzB5u
— Rick Hasen (@rickhasen) November 3, 2020
The United States Postal Service (USPS) on Tuesday afternoon failed to comply with a federal court order requiring the agency to perform “sweeps” of mail certain processing facilities to verify that all mail-in ballots have been accounted for, blaming a lack of time and personnel to abide by the required terms.
U.S. District Judge Emmet G. Sullivan, best known for presiding over the criminal trial of former national security advisor Michael Flynn, issued an order mid-day on Tuesday, directing the USPS to conduct “sweeps” of 27 designated processing facilities in Central Pennsylvania, Philadelphia, Detroit, Colorado, Wyoming, Atlanta, Houston, Alabama, Northern New England, Greater South Carolina, South Florida, Lakeland, and Arizona. The order was handed down after USPS disclosed that the agency could not trace more than 300,000 ballots across the nation.
The sweeps were to occur “between 12:30 PM EST and 3:00 PM EST to ensure that no ballots have been held up and that any identified ballots are immediately sent out for delivery,” and the agency was ordered to report its progress back to the court by 4:30 p.m. EST.
In a response signed by Justice Department Civil Division attorney Joseph Borson, the agency said it had been working to comply with the order but could not do so because of “the limitations caused by time and the Postal Service’s pre-existing Postal Inspection processes,” saying the process “remains ongoing.”
The Justice Department stated that while postal inspectors would still be conducting daily reviews of 220 facilities tasked with processing election mail—including reviewing logs for accuracy and completeness, overseeing staging areas for election mail, and scanning for delayed mail—the ordered “sweeps” were both impractical and impossible in the given time-frame.
“Facility sweeps, however, of the type that occurred this morning are not undertaken by Inspectors personally, but are rather operational responsibilities, undertaken by multiple plant support personnel,” the DOJ wrote. “There are only one or two Inspectors in any one facility, and thus they do not have the ability to personally scour the entire facility. Indeed, doing so would be impractical (given the size of that facility) and would take them away from their other pressing Election Mail related responsibilities, as detailed above.”
Tuesday’s order came as part of ongoing litigation before Judge Sullivan in which the plaintiffs—groups of voters and advocacy groups–argued that delays in the mail system could threaten accurate election results, particularly in the 28 states that do not accept ballots that arrive after Election Day. The Plaintiffs highlighted steps taken by Postmaster General Louis DeJoy to cut hours from postal staff that exacerbated the delivery problems which were later prohibited as a series of court orders took effect.
USPS personnel had been instructed “to perform late and extra trips to the maximum extent necessary to increase on-time mail deliveries, particularly for Election Mail,” and to send the court daily updates on the number of trips and on-time deliveries. Judge Sullivan also ordered a daily check-in via videoconference, the result of which was a new order on Election Day.
Nick Schwellenbach, the director of investigations at government watchdog organization Project on Government Oversight (POGO), said the agency’s “disregard” of the court order was “doubly concerning.”
This is doubly concerning as it's a refusal to obey a court order in a way that impacts election integrity
USPS disregards court order to conduct ballot sweeps in 12 postal districts after more than 300,000 ballots cannot be traced https://t.co/OAdN4r31nd
— Nick Schwellenbach (@schwellenbach) November 3, 2020
Lawyers went so far as to say USPS simply “defied” Judge Sullivan’s order.
“Defied” is the correct term. https://t.co/Jgd1r4BkhB
— Joe Dunman (@JoeDunman) November 3, 2020
Other lawyers, pointing to the widespread “turned down” characterization of what happened, tended to agree that USPS could not simply ignore the judge’s order and get away with it.
How, precisely, does one “turn down” a court order? https://t.co/IoQi84VIoJ
— Carissa Byrne Hessick (@CBHessick) November 3, 2020
When a judge orders you to do something, you don’t really have an alternative that’s not going to end in contempt or sanction.
Judge Sullivan must be fuming right now, but something tells me he’ll make time to clap back. https://t.co/ps1zOu5Pu9
— Adrienne Lawrence (@AdrienneLaw) November 3, 2020
Umm…that's not really how this works. https://t.co/MKvAg5uads
— Josh Douglas (@JoshuaADouglas) November 3, 2020
I wasn’t aware that court order compliance was discretionary. https://t.co/WexXdBodwG
— Anthony “Enlarge the Court” Michael Kreis (@AnthonyMKreis) November 3, 2020
Ordinarily you can’t just “turn down” a judge’s order. https://t.co/sIK3Mu81ss
— Scott Hechinger (@ScottHech) November 3, 2020
See USPS’s full response below:
[image via TOM WILLIAMS_POOL_AFP via Getty Images]
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