Fla. Judge Orders USPS To Up Reporting On Mailed Ballots

Law360, Miami (November 2, 2020, 2:35 PM EST) -- A Florida federal judge ordered the U.S. Postal Service on Monday to issue reports on the status of election mail to a union suing over mail delivery delays, and told USPS to use whatever "extraordinary measures" might be necessary to make sure ballots are in the hands of county supervisors of election by 7 p.m. on Election Day.

U.S. District Judge Robert N. Scola Jr. granted the plaintiff's request for a report by 1 p.m. on Monday and Tuesday of the prior day's "all clear" status certifying that each postal facility in 10 Florida counties has processed all ballots for that day.

USPS will also have to provide an explanation by 2 p.m. each day for any facility that fails to file an all-clear report or that reports noncompliance.

In a Zoom hearing Monday morning, David Bradford, who represents plaintiff 1199SEIU United Healthcare Workers East, said the union has been receiving all clear reports but with a delay, and asked that USPS be forced to share the reports more promptly.

Joseph Borson, who represents Postmaster General Louis DeJoy, argued that it is burdensome to produce extra reports for this litigation and takes employees away from processing mail.

"We want the plant to be focused on fixing the problems as quickly as it could and not spend time briefing me, briefing you, bringing everyone back here," Borson said. "That seems to me where the real distraction would be."

But Judge Scola disagreed and said oversight is needed, referencing a video shared by Florida State Rep. Kionne McGhee on Friday of unsorted mail in a postal facility in Princeton, a community in south Miami-Dade County, that had been gathering for more than a week. An investigation later turned up 42 ballots that were on their way to voters and six completed ballots that were delivered to the supervisor of elections.

"Then we wouldn't ever learn about the 48 ballots that were in Princeton," the judge said. "Something has to be done to have some oversight to make sure the ballots are delivered to the elections bureau by 7 p.m. tomorrow."

The parties told the judge that an order issued Sunday night by U.S. District Judge Emmet G. Sullivan in another lawsuit against USPS in Washington, D.C., with guidelines for how postal offices must clear ballots from their facilities should govern any other potential situations like that of the Princeton facility.

The union sued DeJoy on Oct. 6, claiming he made "illegal and unprecedented changes" to USPS policies that will delay ballots and disenfranchise Floridians who are voting by mail in larger numbers than usual because of the COVID-19 pandemic.

The suit is one of several challenges around the country to USPS' recent operational changes that have delayed mail service and threatened to prevent timely delivery of mail-in ballots.

In September, a Pennsylvania federal judge ordered USPS to halt those changes during the election. The order followed a similar injunction issued by a judge in Washington state and another in Washington, D.C.

1199SEIU is represented by David J. Bradford, Daniel J. Weiss, Ashley M. Schumacher and Nayiri Pilikyan of Jenner & Block LLP; Gayle Horn, Anand Swaminathan, Steve Art and Julia Rickert of Loevy & Loevy; Igor Hernandez of Cornish Hernandez Gonzalez; and Jonathan Manes of Roderick and Solange MacArthur Justice Center.

DeJoy is represented by Joseph Borson of the U.S. Department of Justice's Civil Division.

The case is 1199SEIU United Healthcare Workers East v. DeJoy et al., case number1:20-cv-24069, in the U.S. District Court for the Southern District of Florida.

--Additional reporting by Matt Fair. Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

1199SEIU United Healthcare Workers East v. Dejoy et al


Case Number

1:20-cv-24069

Court

Florida Southern

Nature of Suit

Civil Rights: Voting

Judge

Robert N. Scola, Jr

Date Filed

October 06, 2020

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