Stacks of boxes holding mail are seen at a U.S. Post Office sorting center. (Justin Sullivan/Getty Images)
Three-quarters of the misleading voter-information mailers that prompted the state of Colorado to sue the U.S. Postal Service late last week have already been delivered, and a large portion of the rest are on their way, Postal Service officials told a federal judge on Sunday.
More than 1.6 million Colorado households had already received the nationally-distributed postcards — which contain inaccurate information on mail-in voting procedures in Colorado — by the time Secretary of State Jena Griswold sued the agency in the early-morning hours of Sept. 12, Postal Service officials said. Later on Saturday, federal judge granted a temporary restraining order that barred the Postal Service from delivering the mailers.
“The Notice gives Colorado voters false and misleading instructions about how they should vote in the 2020 election and does not advise voters of alternative methods to cast their ballot,” U.S. District Court Judge William Martinez wrote in his ruling. “The Court is deeply troubled by the challenged conduct intentionally undertaken by these Defendants.”
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– U.S. District Court Judge William Martinez
“The Postal Service had no intention of creating any confusion regarding voting procedures,” attorneys for the agency wrote in a motion asking Martinez to reconsider the Colorado restraining order on Sunday. “The intent of the postcard campaign was the opposite: to ensure that individuals knew to consult their local elections rules, and to plan in advance if they intended to vote by mail in order to ensure that their ballots were timely delivered.”
Several of the instructions on the postcard — identical copies of which are being mailed to 137 million voters nationwide, according to the Postal Service — conflict with the procedures of Colorado’s mail-in voting system, through which the state has conducted three federal elections since 2014. Most notably, its instruction to voters to “Request your mail-ballot (often called ‘absentee ballot’) at least 15 days before Election Day” doesn’t apply in Colorado, where all registered voters automatically receive a mail-in ballot.
Griswold, represented by attorneys from the office of Colorado Attorney General Phil Weiser, argued that that instruction, along with several other statements and implications made in the mailer, would confuse Colorado voters about the proper procedures for casting their ballot in November. In issuing a restraining order Saturday, Martinez agreed, painting a dire picture of the damage that may have already been done.
“The Notice, if distributed, will sow confusion amongst voters by delivering a contradictory message,” Martinez wrote. “For example, Colorado voters may wonder whether Colorado’s election laws have changed; wonder whether their voter registration has lapsed; (or) wonder whether they need to request a ballot … Even if a subsequent corrective communication is sent to Colorado voters, voters will be left to decide which of the contradictory communications to believe.”
In their filing on Sunday, Postal Service officials said that 75% of the flyers had already been delivered as of Sept. 11. About 15%, or 333,041 postcards, were able to be removed from processing, while the remaining 10% had been “partially processed for delivery,” making them difficult to stop.
“Postal Service officials at the Denver distribution center need to … attempt to manually locate and extract the postcards from the hundreds of thousands of pieces of mail in which these postcards are currently embedded at the distribution center,” the agency’s filing said. “Second, the Postal Service will also need to instruct each of its thousands of clerks and carriers across Colorado … to search for and remove any remaining postcards that Postal Service officials failed to identify or extract at the distribution center.”
“As a practical matter, achieving full compliance with the Court’s order will be extraordinarily difficult,” Postal Service attorneys added.
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In a response filed Sunday, Colorado officials suggested that the Postal Service’s estimates may be exaggerated. The filing included a copy of text message sent Friday evening by a Postal Service representative to a senior Colorado elections official, which stated that “(Colorado Springs) is too late but rest of state is delayed.”
“(It’s not) impossible for Defendants to halt the damage they are causing to Coloradans’ right to cast a meaningful ballot,” the state’s filing said. “Rather, it will take time and effort, but it is doable.”
In a subsequent filing on Monday, the Postal Service wrote that it had “gone to considerable lengths” to stop the remaining mailers from being delivered, taking many of the actions that it had described in its motion for reconsideration. Nearly 30 employees spent most of Sunday at its distribution center in Denver, “attempting to manually extract” the postcards from processing, the agency’s filing said. All postal clerks and carriers across the state have also been instructed to stop the postcards from being delivered to customers.
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“All USPS Colorado employees were directed to continue to abide by these instructions until advised otherwise, and currently remain under this directive,” the Postal Service said Monday. It did not provide updated estimates on how many of the remaining postcards have been stopped from being delivered.
Martinez could rule on the Postal Service’s motion to reconsider as soon as Monday afternoon, and a hearing in the case is scheduled for Friday. In his Sept. 12 ruling, he acknowledged that blocking the distribution of any outstanding mailers could pose difficulties for the Postal Service, but wrote that “such burdens … pale in comparison to the potential disenfranchisement of registered voters within Colorado.”
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