RNC, Pennsylvania GOP appeal ballot-curing ruling
Washington County included in filing, unbeknownst to elections board members
Mike Jones
State and national Republicans are appealing a Washington County judge’s recent ruling on ballot curing options, and they included the county’s Board of Elections in the filing unbeknownst to its members who said they did not consent to the appeal.
Republican National Committee attorney Kathleen Gallagher filed notice Thursday that the RNC and Pennsylvania GOP are challenging Judge Brandon Neuman’s order on Aug. 23 requiring the county to notify people who make mistakes on their mail-in ballot envelopes and offer them an opportunity to cast a provisional ballot.
While appeals for most civil cases can be filed within 30 days, appeals involving rulings regarding the state’s Election Code must be filed within 10 days.
Thursday’s appeal to the state Commonwealth Court fell within the 10-day window for the RNC and state GOP – which are interveners in the lawsuit – because Neuman’s order was mailed from the Washington County prothonotary’s office on Aug. 27. However, the appeal is muddied with Washington County’s inclusion since the Board of Elections was served notice of Neuman’s order on Aug. 23, putting it outside the 10-day filing period.
The appeal centers around Neuman’s order allowing people who make mistakes on their mail-in ballots – such as failing to sign or date the outer envelopes – to cast a provisional vote at their polling place. Seven voters sued the county’s Board of Elections on July 1 accusing it of failing to notify them of issues ahead of the April 23 primary election in which 259 mail-in ballots with flaws were not counted.
County Commissioners Nick Sherman and Larry Maggi both said Friday they were unaware of the appeal and did not know why the Board of Elections was included in it. In addition, Pittsburgh-based attorney David Berardinelli, who the board hired to serve as special counsel defending the lawsuit in Washington County Court of Common Pleas, is also named as one of the lawyers submitting the appeal.
Sherman, the Republican chairman of the commissioners and elections board, said he had “internal conversations” with Berardinelli about a possible appeal. But while Sherman said he supports the RNC’s decision to appeal, the county never made a formal decision on whether to participate.
“We’re following the advice of counsel on how to proceed,” Sherman said. “The Board of Elections has not made a decision.”
Maggi, a Democrat who wanted to allow ballot-curing options while also opposing Berardinelli’s hiring to fight the lawsuit, did not know about the appeal until he was contacted by a reporter Friday morning.
“I am not aware of that,” Maggi said. “Any action on that needs to go through the elections board … to decide whether we’re going to appeal, and I have not had any correspondence or emails discussing that issue.”
Maggi added the Board of Elections would need to hold a special meeting to authorize Berardinelli to pursue an appeal, and he was unsure why he would do so on his own.
“This is the first I heard of it,” Maggi said. “As far I’m concerned, he’s not been legally authorized by the elections board.”
Berardinelli, who is listed as the counsel representing Washington County in the appeal, has been paid $75,185 for his work as special counsel since July 1, although it was not clear whether he was authorized to continue billing the county beyond his Aug. 9 invoice. Berardinelli did not respond to a phone message Friday seeking comment on why Washington County is included in the appeal.
Gallagher also did not return a phone call inquiring about the appeal and whether she had concerns that Washington County’s inclusion could affect its status. In addition to Gallagher and Berardinelli, Pennsylvania Republican Party legal counsel Thomas King III and Washington, D.C., attorney John Gore are also named in the appeal’s legal team.
The appeal by the RNC and state GOP could be perilous considering the state Commonwealth Court has sided in recent weeks with several lawsuits aimed at expanding voting rights. The appeal could ultimately turn Neuman’s local ruling in Washington County into statewide precedent that all counties must follow if the Commonwealth Court and ultimately the state Supreme Court uphold it.
A spokesman for the ACLU of Pennsylvania, which is one of the parties representing the seven voters who sued the county, said they are prepared to fight the appeal if the appellate court agrees to accept the case.
“Governments can’t deny or cancel people’s fundamental rights in secrecy,” ACLU spokesman Andy Hoover said in a written statement. “The county court’s decision follows that constitutional principle and protects the interests of voters. We intend to keep making the case for voters and hope the Commonwealth Court agrees.”