Judge orders Postal Service to search for ballots, but no evidence so far of widespread missing votes

A woman wearing a mask sorts through mail-in ballot envelopes
An election worker in Chester County, Pa., handles mail-in ballots Monday.
(Matt Slocum / Associated Press)

As deadlines for mail ballots loom in several swing states, including Nevada and North Carolina, a federal judge on Thursday ordered the U.S. Postal Service to conduct twice-daily searches for any undelivered votes.

Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia instructed Postal Service employees at processing facilities nationwide to sweep each morning and afternoon for any ballots, and to expedite their processing, until the mail ballot receipt deadline has passed in each state.

The order specifically mentions three mail plants in Pennsylvania, where ballots must be received by Friday to be counted.

The move comes days after Postal Service executives said that 300,000 mail ballots sent by voters had not been reported as delivered to election offices. The disclosure has created considerable confusion about the whereabouts of the ballots, but there is no evidence so far that that many ballots are lost in the mail.

Sullivan’s order stems from one of several lawsuits from voting rights groups against the Postal Service over cost-cutting measures that slowed mail delivery this year amid concerns that mail-in ballots would not be delivered on time.


Attorneys for voting rights groups have pressed repeatedly this week for ballot-processing data in Postal Service facilities, as well as more detailed information on any votes that may have gone awry. But so far, they have not raised serious concerns about the accuracy of the data the agency has provided.

According to Postal Service executives, the confusion stems from the unique steps the agency is taking to process the ballots for the election. Postal workers are pulling ballots out of the automated processing system and setting them aside to be transported directly to election officials, thus bypassing a scan that would mark them as delivered, they said. Other mail is sorted by hand because of physical flaws such as smudged barcodes.

In response to the judge’s sweep orders, searches of postal facilities for undelivered mail this week have yielded 815 ballots in Texas and 13 ballots in Pennsylvania, according to the executives.

“What we did absolutely delivered the mail much earlier,” Kevin Bray, the agency’s top executive overseeing election mail, said in a court hearing Thursday. Postal workers are treating ballots as overnight mail, he said, working to deliver them “the next day through any means possible.”

Tensions ran high this week when Sullivan slammed Postal Service executives at a Wednesday hearing for failing to meet court-ordered deadlines for ballot sweeps at mail facilities on election day. The mood Thursday was far more congenial, with Sullivan heaping praise on the postal workers.

“Nothing stops the postal system,” Sullivan said. “I felt like giving the postwoman a big hug today. … The dog didn’t even bark this morning.”

With the election in overtime, President Trump is pushing a mixed message, suing to stop the count in some states and urging others to keep counting.

Allison Zieve, an attorney for the NAACP, one of the organizations that sued the Postal Service, said in an interview that the impetus for the lawsuit was President Trump’s politicization of the agency and his new postmaster general’s decision to make changes that slowed down mail delivery.

She said even if only a few ballots are recovered in the sweeps, the effort is still worthwhile because “those were citizens who wanted to vote, did everything right and got their mail in.”

“It’s about making sure anyone who wants to vote by mail can have their ballots counted,” Zieve said.

Given “the incredibly razor-thin margins in some of these states,” each mail ballot is of critical importance, David Berg, an attorney for four voters who are suing the Postal Service, said during the Thursday hearing.

Biden may clinch the presidency with just one more state, and Democrats are confident he’ll get there once tallies end in Nevada, Pennsylvania or Georgia.

In North Carolina, for example, Trump leads former Vice President Joe Biden by fewer than 80,000 votes, and election officials say there are still up to 117,000 mail ballots to be counted. The state will continue to count votes that arrive by mail until Nov. 12, provided the ballots were postmarked by election day.

Postal Service executives assume that managers of each distribution facility are “executing what we’re asking them to do … sweeping, and doing the due diligence every day, and crawling under machines, and through empty equipment, to make sure we’re doing everything possible,” Bray said.

The deadline to receive mail-in ballots postmarked by election day is Friday in Pennsylvania. The North Carolina and Pennsylvania deadlines reflect extensions allowed by the U.S. Supreme Court after it let stand lower court decisions that authorized the new cutoff dates.

Voting rights groups fear those extended deadlines could be reversed because the dissenting justices in the Pennsylvania case, led by Justice Samuel A. Alito Jr., signaled that the matter could be revisited after the election. There are similar concerns about the North Carolina deadline, which — without the court extension — would be Friday.

Attorneys for Postmaster General Louis DeJoy said in a court filing Thursday afternoon that the Postal Service had contacted 171 boards of election in North Carolina and Pennsylvania to make plans for any ballots discovered during the sweeps Friday.