Whistleblower's attorney details concerns over USPS mail-in ballot system

Geoff Bennett:

Last night, we reported on allegations from a whistle-blower inside the U.S. Postal Service who says the agency is rushing to implement a new system for handling election mail that has not been adequately tested and could put mail-in ballots at risk.

Tonight, we're taking a closer look at those allegations, the evidence behind them, and what the recourse may be. The whistle-blower is remaining anonymous, but is represented by the organization Whistleblower Aid.

And joining us now is David Kligerman, senior vice president and special counsel for Whistleblower Aid.

Thank you for joining us.

David Kligerman, Attorney For USPS Whistle-Blower:

It's a pleasure to be here.

Geoff Bennett:

Without revealing details about your client, explain why you're confident this person was senior enough or close enough to the decision-making to actually know what was happening.

David Kligerman:

Sure.

This individual was close enough to decision-making because, first and foremost, of the information that they were able to represent to us that we understood how it worked. This individual was in a system with enough knowledge to see across a system.

And this -- and we're confident that if one would reach out to the Postal Service, they'd be able to identify material documents that would verify these things that the whistle-blower had brought forward.

Geoff Bennett:

And what was the process by which this whistle-blower decided to come forward?

David Kligerman:

Sure. It's an interesting one, actually.

This individual had -- was watching a show about democratic governance and good governance and had been concerned about what they were seeing at work and as a result reached out to the show's producers, and through a number of individual connections finally found their way to us. And it was really quite fortunate that this individual did, because it's not always a clear path to find folks to help you do this.

It's not every day that someone comes forward to blow the whistle on a major government scandal.

Geoff Bennett:

And at the heart of this disclosure is the claim that the Postal Service is moving ahead with this new system for handling election mail that hasn't been adequately tested.

How could those problems translate into ballots being delayed, mishandled, or not counted at all?

David Kligerman:

Sure. There are really sort of two problems. One is a information technology problem, and one's a systemic problem.

I'll talk about the latter, which is, the latter is that you've -- they've built through this rule, they've developed a system that has a number of checks, and at each process part of the check, they have a zero percent failure requirement, which means that, if any one little mistake is made, even if the I.T. is working perfectly, if you enter your information and it checks one list against another, one against another, you finally go to the post office with a huge card of ballots, 1,000, 10,000 -- Maricopa County, there's examples of a million.

You go in and if they scan a certain number of ballots, and any one is an error, they all go back, right? And that's with an I.T. system that's working properly. Now, imagine when you hear that -- imagine what the concern would be, like our whistle-blower had, when you know the system is not built at all or it's not built well?

So you've got a system that should take a year, maybe two years to develop. It was done in eight weeks, and that -- if you back out the four weeks where they stopped work, about four or five weeks. And this is a system that's very complicated. It has a number of systems having to talk to one another, and they didn't test it properly. They didn't build it properly.

They didn't they didn't integrate it properly and test it as a unit. And when they do test it, it fails. And so this individual is rightly concerned, as are a number of Americans.

Geoff Bennett:

Your client also alleges that the Postal Service continued working on this system despite a federal court order to stop.

USPS said in a statement in part: "This work has at all times been conducted in a manner consistent with court orders. Importantly, in an order issued by the U.S. district court this week, the court expressly confirmed that the Postal Service may continue its work to establish the portal and communicate with states regarding design standards on a voluntary basis."

So what specifically do you believe the Postal Service did that violated the court's order?

David Kligerman:

So there are two sets of court orders. The Postal Service responding to the latest one, but there was an earlier injunction, right?

And during that earlier injunction, the Postal Service itself said, wait a second, we're doing is in violation of it, or at least believe, so they stopped work. But then, in the middle of that injunction, nothing had changed. Our client had gone to other senior officials and said, hey, what's changed? And no one would answer.

But, nevertheless, work resumed, right? So work resumes under a court order where they thought it had to stop. And now, under this -- in this scenario, they're saying, oh, there's nothing to see here. We're just building the system.

But why the rush? Every step of the way, they push, push, push towards this date for this election. If they're just building a system for some future election, which is what the order excludes, fine, but that's not what's happening here. They rushed it out to the September date. They have now put notice out that states can play with it and experiment with it, to use it to get familiar with it.

The intent is clearly for this election, and that's what's in violation.

Geoff Bennett:

What's the single most important unanswered question that the U.S. Postal Service could resolve in this case?

David Kligerman:

Sure. I think the most -- I think the biggest unanswered question is, what -- by what measure do they actually believe this system is going to work? And what are Americans supposed to do if and when it crashes?

Geoff Bennett:

If the normal oversight mechanisms, Congress, the White House, the Postal Service itself, don't act on these allegations, what recourse is there? Are the courts the -- an appropriate remedy?

David Kligerman:

I think unfortunately the courts may be the only remedy. And I know the case is winding its way through the courts. There's an injunction that's a 14-day injunction. It was entered into on the 27th, so it expires at some point next week or right after.

And what happens? One hopes that there's another injunction put in place while the court's looking more closely at it, but it's going to go up and appeal to the Supreme Court. And if the Supreme Court decides to hear it, they're going to have to look at this. And there are two arguments.

One is that it's patently unconstitutional because this exceeds the authority of the executive branch. But there's another argument, which I think this disclosure boosts, which is, regardless of that, it's being done in a way which violates administrative law, that it's not a system that is appropriate to be released, there wasn't enough preparation for it, and therefore it's of -- the harm to the states is such that they shouldn't have to use it.

Geoff Bennett:

David Kligerman with Whistleblower Aid, thanks again for joining us this evening.

David Kligerman:

My pleasure. Thanks for having me.