Federal judge scolds USPS on vote-by-mail delays: Five key takeaways

The case before Sullivan, brought by groups of voters and civil rights organizations such as the NAACP and Vote Forward, has been the most impactful in compelling the Postal Service to improve delivery times for election mail. Attorneys general from 19 states and the District of Columbia were near a settlement with the agency in September, but those talks stalled over the guidelines for overtime hours, according to three people familiar with negotiations.

Sullivan has issued a number of directives to ensure ballots are not caught up in systematic delivery slowdowns spawned by a cost-cutting agenda the agency implemented in July. Postmaster General Louis DeJoy had moved to ban late and extra trips and cut work hours among the mail service’s 630,000-member staff. His plan was suspended in September after courts intervened and a public backlash.

Here are five takeaways from Sullivan’s ruling and where it leaves the Postal Service on the eve of Election Day.

Notice the emphasis on “must.” That’s because the Postal Service circulated an Oct. 28 memo among supervisors that discussed “extraordinary measures” to process and deliver ballots on time.

The memo stated: “The use of extraordinary measures beyond our normal course of operations is authorized and expected to be executed by local management.”

That apparently was not strong enough language for the court. In Friday’s testimony, Postal Service executives told Sullivan that not all of the measures were uniformly in effect: Only certain postal facilities were conducting certain extraordinary measures on a case-by-case basis; local leaders were authorized to implement the extraordinary measures but not required.

Well, now they’re required.

“When recirculating the policy,” Sullivan ordered, “the Postal Service shall indicate that it is doing so to reiterate that all processing facilities must abide by the requirements of that policy to expedite the treatment of ballots, and that it is recirculating this policy at the instruction of a federal district court.”

Some of those measures include:

• Creating ballot drop-off only lines at post office retail windows.
• Creating ballot drop-off drive-through lanes at local post offices.
• Positioning a clerk outside post offices to postmark ballots as soon as they are turned in.
• Culling ballots at local postal facilities and delivering them directly to election officials, rather than sending them to regional processing facilities for sorting.
• Running early, late and extra collection, dispatch and delivery trips to ensure ballots are handed over to election officials the same day they’re received.
• Coordinate after-hours ballot handoffs from local postmasters to election officials.

The vast majority of ballots don’t travel very far. They go from one side of a county or city to the other and back again. That process — especially if local post offices sort ballots instead of regional plants — doesn’t have to take very long.

The ballots that are most vulnerable are those that have to go from one side of a state to another or across state lines. Think college kids living in a dorm room rather than at home, snowbirds living in a warmer climate for the season, or voters living with family or in a hotel because of a hurricane or wildfire.

For those ballots, Sullivan ordered the Postal Service to use its express mail network — which includes overnight service — to expedite delivery.

In 28 states, election officials must receive absentee ballots by the end of Election Day for them to count. In the remaining 22 states, ballots can count up to certain deadlines (which vary by state) if they are postmarked by Election Day.

To make that easier for postal workers to track, the agency circulated a chart with all 50 states and the District of Columbia and their ballot acceptance deadlines. Except the chart was wrong. It provided incorrect information about deadlines in Minnesota, New Jersey, North Carolina and Pennsylvania, which were the subject of litigation.

Sullivan’s new order includes a chart with updated Election Day ballot submission deadlines and any extensions for each state.

By nearly any measure, the Postal Service is struggling to return ballots to election officials on time. But some postal districts are faring particularly poorly. In those districts, Sullivan ordered the agency to target additional resources and oversight to try to improve service.

The Postal Service is required to put in writing to supervisors in Minnesota, New Jersey, North Carolina and Pennsylvania that the deadlines chart originally issued has been replaced.

The following districts have consistently underperformed on ballot mail or have not properly reported ballot mail-handling practices:

• Greater South Carolina.
• Greensboro, N.C.
• Houston.
• Mid-Carolinas.
• Central Pennsylvania.
• Kentuckiana (includes parts Kentucky and Indiana).
• Detroit.
• Greater Indiana.
• Northern New England (Vermont, New Hampshire and Maine).
• Colorado/Wyoming.
• Greater Michigan.
• Oklahoma.
• Philadelphia metropolitan.

The Postal Service is required to “convey orally” Sullivan’s orders about extraordinary measures and requirement that they certify their facilities “all clear” of election mail by 10 a.m., handing off any ballots that remain either through a pickup from local election officials or a special delivery to the election office.

The Postal Service earlier this summer warned 46 states that their ballot deadlines were “incongruous” with mail service and that for timely ballot delivery they should pay the 55-cent first-class rate for each ballot rather than the 22-cent marketing mail rate the Postal Service has charged on ballots for years.

Multiple federal courts ordered the mail service to treat ballots as first-class mail regardless of their internal classification, as the agency has done for years.

Sullivan’s order makes the protocol mandatory: Even if ballots do not include postage — that is, even if a voter has not paid the required cost to mail that ballot — the Postal Service is required to deliver it on time. In other words, the lack of a stamp will not prevent a vote from being cast and will not prevent the Postal Service from postmarking that ballot as it would any other.

“Every election ballot that is not sent to a processing facility must be postmarked … at the Post Office or local delivery unit, regardless of the postage payment method or indicia on the mailpieces,” Sullivan wrote. ”Even short paid ballots and ballots without postage must be postmarked (postage collection will happen later).”

If you haven’t voted yet and you haven’t requested an absentee ballot: You should vote in person. It’s too late to have an absentee ballot mailed to you and for you to fill that ballot out and return it. You can find your local polling place here.

If you have an absentee ballot but haven’t submitted it yet: You should submit that ballot as soon as possible. It’s too late, voting and postal experts say, to mail it, so you should turn it in at a secure drop box (different from a public mailbox) or hand-deliver it to an election office or polling place, if your state allows. You can locate a drop box near you here.

If you mailed your absentee ballot but don’t know whether it has arrived: In many states, you can sign up for ballot tracking and get a notification when election officials receive your ballot. But if you’re not certain, call your local board of elections and ask whether it’s been received. You can also go vote in person. You have a right under the Help America Vote Act to cast a provisional ballot, even if you voted by mail. There’s no guarantee that provisional ballot will count if your absentee ballot arrives on time (and don’t worry, you don’t stand a risk of double-voting), but you have a right to cast this kind of vote in person.