Public Pressure And Lawsuits Kept USPS From Handing Trump The Election. Here's How.

“The point here is not just about election outcomes. It’s about honoring the sacred right to vote.”

Voters in some key states were put in a very precarious position as the 2020 election approached. On the one hand, conservative legislatures and courts implemented rules that required mailed ballots to be received by Election Day, regardless of postmark. Meanwhile, as a consequence of the coronavirus pandemic and changes implemented by Postmaster General Louis DeJoy, the mail experienced rolling delays from which it still has not fully recovered.

There was therefore widespread concern that thousands of mailed ballots — in an election where a record-shattering 65.5 million people voted absentee due to the coronavirus pandemic — might not arrive in time. History might hinge on some mundane postal delays.

But in the end, those delays did not result in thousands of ballots getting lost in the mail or arriving too late to count. Postal workers doing final sweeps of their systems have found just a few ballots — in most cases, they number in the double digits — that were lost or left behind.

“I think, in the end, the post office did a good job,” said Allison Zieve, the director of litigation for Public Citizen, one of several watchdog groups suing the post office to make sure every ballot is delivered.

What made the difference, experts say, was enormous public pressure, multiple lawsuits, scrutiny from the courts, urgent efforts to urge voters to mail their ballots as early as possible, and extraordinary measures taken by the agency itself and its legions of dedicated postal workers.

As soon as it became apparent that operational changes made by DeJoy were slowing the mail, an enormous wave of public pressure, including congressional hearings, forced him to back off of making any operational changes before the election. Voting rights advocates sued to force him to roll back the remaining changes, and public pressure and the U.S. district judge overseeing the federal case, Emmett Sullivan, caused the USPS to adopt what it calls “extraordinary measures” to keep ballots moving faster than the rest of the mail.

“This summer, we all had really grave concerns,” said Tammy Patrick, a senior adviser at the nonprofit Democracy Fund. Under DeJoy, the post office was signaling it wouldn’t give mail-in ballots the urgent treatment it had in past elections. DeJoy’s high-profile grilling at the hands of congressional Democrats appeared to make a big difference, Patrick said.

“After the congressional hearings, you saw a renewed commitment, the postmaster promised they were going to maintain that commitment. And what I saw leading up to Election Day was exactly that.”

“The point here is not just about election outcomes. It’s about honoring the sacred right to vote.”

- Shankar Duraiswamy, an attorney for Vote Forward in its lawsuit against the USPS

There were isolated examples of the system failing to work. Delays in the mail kept thousands of voters from receiving absentee ballots until the week before Election Day, by which time the USPS was already urging voters to return their ballots.

A sweep this weekend in Pennsylvania found about 170 ballots that should have been delivered by the state’s Friday deadline for counting ballots and weren’t. But those delays did not result in huge, election-swinging numbers of ballots being lost or too delayed to count. And stories claiming the USPS lost or delayed hundreds of thousands of ballots have proved to be overblown and based on cherry-picked data. In most districts, Zieve said, the number of ballots being discovered can be characterized as “a few.”

“As long as I can use that word, a ‘few,’ the litigation did its job and the Postal Service did its job,” Zieve said. “All this was not done in an ideal way. But I feel pretty good about the outcome.”

But the Post Office shouldn’t be judged simply on the standard of whether it single-handedly swung the election. There were still-unexplained mail delays in key states. DeJoy’s initial ulterior motives appear to have been thwarted, but he will remain the postmaster general for the foreseeable future.

“The point here is not just about election outcomes. It’s about honoring the sacred right to vote,” Shankar Duraiswamy, an attorney for Vote Forward, another good-government group suing the USPS, told HuffPost.

‘Not Working The Way It Should’

As voting was underway, and in the tense days before Democrat Joe Biden was projected to win the presidential election on Saturday morning, overstated claims about the number of ballots that were stuck in the mail flew across social media.

An Election Day story and push alert from The New York Times suggested the USPS had lost track of 300,000 ballots at the very last minute. But in the days following, the agency confirmed to Sullivan, the judge, that it had delivered most of those ballots directly to local boards of elections.

On Thursday, a Washington Post story implied that mail delays caused thousands of ballots to arrive too late to be counted. The headline read, “USPS processed 150,000 ballots after Election Day, jeopardizing thousands of votes,” and the first sentence characterized those 150,000 ballots as being “caught” in the USPS system.

But the obvious implication — that the USPS had mishandled all 150,000 of those ballots — was simply not true. Of those 150,000 ballots, 95% were moving at normal delivery speeds. The reason they were still in the mail was because voters had mailed them only one or two days before Election Day. Those ballots weren’t “caught” or delayed — they were mailed late.

Nor did that mean the majority of those ballots were “jeopardized,” much less by the post office. More than half were bound for California, which allows ballots postmarked by Election Day to arrive up to 17 days later. In the states where delayed ballots could have swung the election — contested states where absentee ballots must arrive by Election Day — the Post story identified less than 1,000 ballots, in Arizona and Georgia, that were processed after the election, and it’s not clear if those ballots were unduly delayed or simply mailed late.

Mail-in ballots in containers from the U.S. Postal Service wait to be processed by election workers in Salt Lake City on Oct. 29, 2020.
Mail-in ballots in containers from the U.S. Postal Service wait to be processed by election workers in Salt Lake City on Oct. 29, 2020.
GEORGE FREY via Getty Images

In Pennsylvania, where the post office delivered 170 ballots late, more than 2.6 million total absentee ballots were cast. Biden’s margin in the state was 45,000 with 98% of the vote reported.

Still, the Postal Service did a grave disservice to those 170 people. Those ballots that were placed in the mail the Sunday before Election Day and did not arrive until this past Saturday, one day after the deadline for receiving ballots.

“That’s almost a full week,” Duraiswamy said in a court hearing on Monday. “That’s 170 ballots put in the mail before Election Day that are not going to be counted. All of that underscores, notwithstanding the extraordinary efforts, there are still some parts of the system that are not working the way they should.”

Ultimately, Zieve and Duraiswamy don’t believe the post office would have successfully carried out its official plan for expediting ballots without the court pressuring the agency on an almost daily basis to follow through.

Early this fall, the post office was still dragging its feet in complying with a court order to reverse many of DeJoy’s operational changes. The most notable one was a requirement for more USPS trucks to leave as scheduled, whether or not they had been filled with mail on time, and a corresponding sharp drop in the number of late and extra trips trucks usually make in order to deliver all the day’s mail. The agency claimed that because DeJoy had disincentivized but not banned USPS trucks from making late and extra delivery trips, there was no policy to reverse. (A furious Sullivan forced the agency to reinstate late and extra delivery trips.)

The post office still hasn’t given a good explanation for why, week after week, up to one-quarter of ballots were delayed in key swing states like Michigan and Pennsylvania. The agency’s explanations for slow delivery — COVID-19, “employee availability” — remain vague and unsatisfactory to critics.

“COVID has been a factor for months,” Zieve said. “Those were, for the most part, BS explanations from beginning to end.”

The post office also failed to put someone in charge of drawing up the “extraordinary measures” for expediting ballots until about a month before Election Day, according to testimony from one postal official.

Alarmed by all this, the court required the post office to provide daily data and updates on how quickly ballots were being delivered in the week leading up to Election Day. It was that level of oversight, Duraiswamy believes, that forced the USPS to follow through on its “extraordinary measures” with the intensity needed.

“It’s not just a matter of, do you put the right words on a piece of paper and send out the memo? It’s, do you have the commitment and oversight that translates those nice words into action?” Duraiswamy said. “It’s safe to say the litigation pressure made a real and meaningful difference in pushing them to get through as many ballots as possible.”

Squeezed On All Sides

The 2020 election has demonstrated that a lot has to change if mail-in voting is going to become the country’s norm. Election Day wasn’t the catastrophe many people feared, but a lot went wrong before the USPS managed to deliver the vast majority of ballots on time. The pressure of litigation is temporary; the reliance of the country’s elections on the post office is permanent.

Postal delays made it harder for an untold number of voters to register, apply for absentee ballots, receive their ballots on time, or receive notice that they needed to fix mistakes on their ballots, like a missing signature. Twenty states still let voters request an absentee ballot less than a week before an election, when it may be physically impossible for the USPS to send and return absentee ballots by Election Day. One reason New York ran such a disastrous primary this spring is that the New York City Board of Elections officials mailed up to 30,000 absentee ballots the day before the election.

This summer, with virtually no public notice or explanation, the USPS began enforcing a little-known ban on allowing mail carriers to witness ballots in the four states that require a witness signature: Alaska, Alabama, and the swing states of North Carolina and Wisconsin.

“Everything we hear is that the individual postal workers have been working hard and working overtime.”

- Allison Zieve, the director of litigation for Public Citizen

President Donald Trump also showed he could make it more difficult to vote simply by throwing suspicion on votes cast by mail. He spent the months leading up to the election making false claims about mail-in voting being “RAMPANT WITH FRAUD”. With Trump’s encouragement, Republicans in Wisconsin, Michigan and Pennsylvania killed legislation that would have allowed election officials to tally absentee ballots before Election Day.

His goal in all this was to not only give absentee ballots an air of illegitimacy but to launch a massive legal battle in the extra time it took states to count votes.

In the end, it didn’t physically slow the mail or give Trump the opening he was counting on: On Saturday, the day Biden secured the Electoral College votes he needed for victory, Trump ally Rudy Giuliani debuted the Trump team’s lawsuit “strategy” in a parking lot outside Four Seasons Total Landscaping to universal ridicule. But Trump did succeed in making countless voters fear their voices wouldn’t be heard if they used the mail to vote. As Election Day drew closer (but when there was still time to vote by mail), polls found fewer and fewer voters prepared to trust voting by mail.

This was not an election in which any would-be absentee voters could easily turn around and go to the polls — to the extent that has even been easy — particularly in communities vulnerable to the coronavirus.

“People were being squeezed on all ends,” said Duraiswamy. “Squeezed by the pandemic that makes it unsafe to vote in person, by election officials not processing and sending their absentee ballots on time, by the Postal Service on both ends — getting ballots out to them and then getting ballots back. And they’re being squeezed by judges and courts that were not allowing extensions for ballots to arrive.”

One group of people who did right by voters, many agreed, were postal workers.

“Everything we hear is that the individual postal workers have been working hard and working overtime, doing everything they could to follow their instructions and do everything they could to deliver ballots on time,” Zieve said.

“I would hate for people to come away from this situation thinking negatively about the people who work at the Postal Service, who worked so hard to do their jobs and their duty. I hope this actually gave people confidence in the integrity of the electoral and democratic system in a very unusual election,” Duraiswamy said.

“That’s a lot of pressure for workers to be under,” he added. “If you’re a man or woman working in a processing facility in the middle of Pennsylvania and you know the whole country’s eyes are on you, that’s a lot of pressure. I think the nation should feel truly grateful to postal workers for the effort they made under pretty significant stakes.”

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