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Luzerne County Election Board schedules meeting to reconsider ballot curing change

By Jennifer Learn-Andes,

The Luzerne County Courthouse

Luzerne County Election Board member Danny Schramm said Monday he has requested a special meeting to withdraw his support for a recent change in the way voters can address mail ballot defects on Election Day.

Schramm said he can no longer provide the vote needed to make the change after reading a new communication from the American Civil Liberties Union of Pennsylvania urging the board to reconsider its decision.

The special meeting is scheduled at 9 a.m. Wednesday in the third-floor courtroom A at the county’s Penn Place Building, 20 N. Pennsylvania Ave., in Wilkes-Barre.

Board Chairwoman Denise Williams said the meeting could not be held until Wednesday due to a 24-hour public notice requirement. Remote attendance won’t be an option because the council meeting room at the courthouse, which is equipped for virtual meetings, was not available until Wednesday afternoon, and a snowstorm is predicted, Williams said.

Williams said she wants to avoid waiting for a decision, if possible, because the election bureau already has started identifying Jan. 31 special election ballots with outer envelope deficiencies and needs a directive from the board to explain options to voters. The Jan. 31 special election to replace former state Sen. John Gordner impacts voters in 18 county municipalities.

Election Board member Alyssa Fusaro had proposed the change requiring voters to appear at the election bureau at Penn Place to address a mail ballot deficiency on Election Day instead of the past option to cast a provisional ballot at their polling place.

Her motion passed with support from board Vice Chairman Jim Mangan and Schramm, while Williams and Board member Audrey Serniak voted no.

Fusaro had argued provisional ballots cannot be a corrective option because they contain an attestation affirming that the provisional ballot is the only ballot that voter cast in the election. State law also says a provisional ballot shall not be counted if the voter’s mail ballot was timely received by a county election board, she said.

The ACLU said timely-received mail ballots are not deemed “cast” if they have a fatal defect because they are set aside and not counted.

Because paper provisional ballots are reviewed during adjudication after Election Day, the board will be able to verify the mail ballot had a fatal defect to ensure only one vote is cast and counted in each case, the ACLU said, adding that making such a change so close to the special election could cause confusion for both voters and poll workers.

Prohibiting provisional voting to cure deficient mail ballots creates a high disenfranchisement risk for voters unable to travel to Wilkes-Barre and also violates the federal Help America Vote Act (HAVA) and the U.S. and Pennsylvania Constitutions, the ACLU letter argued, citing case law and noting a voter’s right to cast a provisional ballot under HAVA is “mandatory and unambiguous.”

Fusaro provided this statement Monday:

“Though provisional ballots may be cast, the law states in Title 25 § 3050(a.4)(5)(ii)(F) that they are not to be counted if the board has received their ballot in a timely manner. My decision to bring this matter to the board was simply to eliminate any future challenges in the adjudication process as well as to allow the voter their best chance at having their vote count versus being challenged during adjudication.”

She also pointed out the ACLU letter was addressed to the county chief solicitor and not sent directly to the election board.

Sixteen voters cured their defective mail ballots through provisional voting in the countywide Nov. 8 general, officials said. A Republican Party attorney filed a challenge with the board, and four board members voted after a hearing to accept the 16 provisional ballots, with Fusaro providing the lone no vote, according to Williams. No appeal was filed, she said.

Williams said Monday she appreciated the input from the ACLU and had been awaiting a county law office opinion about the legality of the policy change she had requested immediately after it was approved by the board on Jan. 18, specifically whether the change was in conflict with the law and online state guidance.

Schramm also welcomed the ACLU communication, saying he voted in support of the change because of some arguments made during the meeting.

“Originally it made it seem that it was illegal to allow the provisional voting. That was a misleading presentation,” Schramm said.

Schramm said he sees no reason to force voters to travel to Penn Place on Election Day and deal with a potential struggle to find parking to correct a mail ballot deficiency, such as a missing signature or date on the outer envelope.

He expressed frustration that he is sometimes expected to vote on board matters “spur of the moment.”

“I want to ponder things more, and we’re often receiving mixed messages,” Schramm said.

Approximately 4,800 voters have requested mail ballots for the Jan. 31 special election, and it remains to be seen how many will have disqualifying defects.

While the election bureau started notifying voters of some outer envelope defects before Election Day in November’s general election, some defects are not flagged until the day of the election as mail ballots are processed. In the latter situation, the election board furnishes lists of defective ballots to political parties on Election Day so those representatives can attempt to contact the voters.

The bureau has early knowledge of which ballots have outer envelope defects because it is using a new ballot sorting machine. Previously, teams of workers started reviewing the outer envelopes and weeding out those with defects on Election Day.

Board powers

In an email to county council Monday, Fusaro referred to the election bureau’s decision to start notifying voters of deficiencies before Election Day.

Pennsylvania Acting Secretary of State Leigh M. Chapman publicly issued a release before the Nov. 8 general election saying county election offices were encouraged to contact voters whose mail ballots were cancelled due to outer envelope errors so the voters may have the opportunity to remedy the situation.

After reviewing the new state guidance with the county law office, the bureau issued alerts to voters with ballots missing required outer envelope signatures or with no dates or dates out of range.

Fusaro and Jim Mangan — the two Republicans on the five-citizen board — had said they were uncomfortable with the state push for election bureaus to notify voters outside the Election Day curing process performed by the board.

Fusaro told council Monday this procedure to contact voters in advance was implemented by the bureau and never voted on by the election board.

“Since my appointment, many policies and procedures have been changed without the board’s approval because we have been told that it is ‘not our role,’” she wrote.

Fusaro urged council to immediately revise its county administrative code to spell out the board’s powers, saying the code, as written, has made the board “nothing more than a figurehead role in which we sign documents that we have no control over.”

County Councilman Stephen J. Urban said Monday he is drafting a proposed administrative code change that would make the election bureau a standalone unit under the supervision of the volunteer citizen board, asserting the board is responsible under state law for election bureau hiring, equipment purchasing, budgets, policies/procedures and investigation of irregularities and possible fraudulent activity.

Urban said he will soon present his draft to the county law office for a nonbinding opinion and then forward it to council colleagues for possible adoption.

At least for now, the board is negotiating a “best practices” agreement with the administration that will provide the board with more input on the election budget, equipment purchasing and hiring.

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