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Judge could call postmaster general to testify over missed ballot sweep deadline

2020 election: Candidates' paths to victory
2020 election: Candidates' paths to victory 03:13

A federal judge on Wednesday said he may call Postmaster General Louis DeJoy to testify about why the U.S. Postal Service missed an Election-Day deadline to sweep locations in several states for left behind mail-in ballots.

The order, issued by U.S. District Judge Emmet G. Sullivan, was meant to trigger sweeps of facilities in six key battleground states: Pennsylvania, Michigan, Georgia, Texas, Arizona and Florida. Some of the 12 districts included in the order have legislation against accepting ballots after midnight on election night.

"Now you can tell your clients this in no uncertain terms," Sullivan said in a Wednesday hearing. "I am not pleased about this 11th-hour development last night. You can tell your clients that someone may have a price to pay for that."

The sweeps were ordered to begin at 12 p.m. ET and be completed by 3 p.m. ET. Attorneys for the Justice Department, which is representing the Postal Service, said processing was previously scheduled to take place on Election Day from 4 to 8 p.m. — before most polls closed. The agency said it discovered 13 delayed ballots in two separate Pennsylvania facilities.

The lawsuit, brought forth by the NAACP, highlighted data from the Postal Service that stated over 300,000 mail-in ballots that were received but were unable to be traced to their destination. The agency said that data was unreliable, as several pre-existing election processes meant to aid ballots on their way prevented them from being processed as delivered. 

Joseph Borson, a lawyer from the Justice Department, apologized to the court for not setting realistic enough expectations on behalf of his client, also stating that the term "sweep" has several contexts within the Postal Service, which usually requires more manpower.

Sullivan, however, contested the claim on Wednesday. "Yesterday, it was the government's job to tell me that I could make appropriate adjustments to the order," Sullivan said. "Now it sounds like you didn't know the timing of when they would be there."

The presidential races in Pennsylvania and Texas are still too close to call. Sullivan on Wednesday filed a new order directing the Postal Service to speed up efforts to search for mail ballots left in Texas facilities. However, an email announcement about the order's 5 p.m. deadline was sent until 3:15 p.m., giving officials under two hours to complete the sweep. 

The court heard nearly three hours of testimony Wednesday from Kevin Bray, who currently serves as the executive lead for mail processing in the 2020 elections. Bray, who has only held this position for four weeks, said the 300,000 ballots likely weren't misplaced but were prioritized for express delivery.

With enough time to investigate, Bray said he would be able to try and go district by the district through the data to figure out how many of the ballots in question were in fact delivered through that process.

"I understand that there could be confusion, but I want everybody on the call to understand we did that intentionally so we could expedite the delivery, not to cause somebody to think it's lost, and I think sometimes that happens," Bray said.

Audrey McNamara contributed to this report.

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