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November 4, 2020 4:45 PM, EST

Judge ‘Shocked’ at Postal Service, May Order DeJoy to Testify

Postmaster Louis DeJoyPostmaster Louis DeJoy by Tom Brenner/Reuters via Bloomberg News

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Postmaster General Louis DeJoy may have to testify under oath about his agency’s failure to follow court orders to avoid delivery disruptions for mail-in ballots during the election.

U.S. District Judge Emmet Sullivan in Washington said at a hearing Nov. 4 that he was “shocked” at the behavior, including not completing a mandatory sweep of mail-processing facilities to look for undelivered ballots by 3 p.m. on Election Day.

“At some point, the postmaster is either going to have to be deposed or appear before me and testify under oath,” said Sullivan, who is overseeing one of several lawsuits against USPS tied to disruptive operational changes at the agency. “The court has been very clear that it expects full compliance” with its orders.

Judge Emmet Sullivan

Sullivan

Sullivan blasted the U.S. Postal Service’s legal team for failing to notify him promptly once the agency realized it couldn’t meet the deadline he set for conducting the sweep of facilities in more than a dozen troubled regions, including many in Democratic-leaning urban areas or swing states.

“The court would have been very sensitive to any complaints that it was impossible to comply with the order,” Sullivan said. “It just leaves a bad taste in everyone’s mouth for the clock to run out, game over. There was not compliance with a very important court order.”

DeJoy, a wealthy Republican donor, owned a logistics business, New Breed Logistics, that was a longtime Postal Service contractor, and he has significant financial stakes in companies that do business or compete with the agency. New Breed merged with XPO Logistics in 2014, and DeJoy became CEO of XPO’s supply chain business. After he retired in 2015, he became a member of XPO’s board until 2018.

On-Time Report Card

On-time delivery has taken on a new urgency amid a surge in the use of mail-in ballots during the pandemic and Republican efforts to block the counting of ballots that arrive after Election Day.

In South Florida, 85% of ballots made it to election authorities on time — within one to three days for local delivery — on Election Day, Nov. 3, the last day in Florida for ballots to arrive and still be counted, the Postal Service reported in a filing with the court on Nov. 3. In Detroit, 79% of mail-in votes were delivered on time on Election Day. The figure was 67% in Philadelphia. That compares with a national on-time delivery rate of 93% of ballots that day, according to USPS.

The agency cautioned in the filing that daily figures may not be reliable and that the service scores don’t include ballots that are handled locally without being shipped to large processing centers. Locally handled ballots are delivered the same day with a near 100% success rate, according to USPS, which said it has taken “extraordinary measures” in delivering votes.

In many cases, local post offices handle ballots without sending them through large sorting centers where delivery scores are measured, said Tammy Patrick, a senior adviser at the Democracy Fund, which describes itself, in part, as promoting free and fair elections.

“These ballots are being delivered in a shorter time,” Patrick said in an interview.

Michigan and Pennsylvania

Lawyers for the plaintiffs in the case, including the NAACP, said it was imperative for USPS to focus on continuing to deliver ballots in states that have extended deadlines for accepting votes postmarked by Nov. 3. Those include Michigan and Pennsylvania.

Sullivan asked to hear testimony later Nov. 4 from USPS executive manager Kevin Bray, the lead for processing 2020 election mail.

The court-ordered sweep related to USPS facilities in Democratic strongholds like Detroit, Philadelphia, Atlanta and Houston, as well as battleground states such as Arizona and Florida. The facilities that were singled out were suffering from substandard performance for delivery of election mail, according to data that the Postal Service was required to file regularly with the court.

USPS said in a filing on Nov. 4 that it had completed a sweep of more than 200 facilities to look for ballots, despite missing the deadline, “and ensured that election mail was processed expeditiously.”

In Pennsylvania, which could prove decisive in the outcome, the agency said the sweep had uncovered three delayed ballots in Johnstown and 10 in Lancaster that were “referred to management for delivery.” All ballots were handled with the expectation that they needed to be delivered by Nov. 3, regardless of a state’s potentially extended deadline, USPS said.

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