Washington County elections board retroactively approves ballot-curing appeal
Questions raised about private meeting before lawsuit ruling was announced
Mike Jones
A day before a Washington County judge handed down his order on the recent ballot-curing lawsuit, the county’s Board of Elections apparently met in private to discuss the ruling – which hadn’t yet been finalized – and how to proceed.
Commissioner Nick Sherman, who chairs the elections board, announced during a special meeting Thursday afternoon that county leaders met with their solicitor in executive session on Aug. 22 to “discuss the election litigation” but did not make a final decision.
But it wasn’t until 4:21 p.m. on Aug. 23 – the following day – that Judge Brandon Neuman filed his order requiring the elections board to offer voters who make mistakes with their mail-in ballots the option of voting provisionally at their polling place.
“The Board of Elections chose not to appeal to the Commonwealth Court because the Board of Elections did not wish to extend additional taxpayer dollars to file an appeal,” Sherman said of what apparently transpired at that Aug. 22 meeting. “However, the board agreed to participate in the appeal as long as the Republican National Committee (RNC) takes the lead in litigation, such as brief writing, oral arguments or any other research involved in the litigation.”
The RNC and Pennsylvania Republican Party appealed Neuman’s ruling to Commonwealth Court on Sept. 5, and Washington County and its special counsel David Berardinelli were attached to the filing, unbeknownst to the elections board’s members.
In response, the elections board voted 2-1 during Thursday’s special meeting to retroactively allow the RNC to “take the lead” on the appeal and have the national Republican Party pay all costs associated with it. Sherman and fellow Republican Commissioner Electra Janis voted in favor of the motion while Democratic Commissioner Larry Maggi voted against it.
The timeline on the executive session a day before Neuman’s order was released on Aug. 23 puzzled Maggi, who had no recollection of the meeting or any discussion about the county’s role in the appeal.
“I’m not aware of the meeting on the 22nd. I don’t recall us ever approving (an appeal),” Maggi said. “I’m not sure who gave our solicitor the authorization to appeal. Aug. 22 – I’m looking at my schedule – we didn’t have a meeting scheduled for that day. I’m not sure if we had an executive session (and) I don’t think there was an elections board meeting that day.”
County Solicitor Gary Sweat apparently met with the commissioners – who are the three members of the elections board – during that closed-door executive session to briefly discuss the litigation, according to assistant solicitor Sarah Scott, who attended Thursday’s special meeting in Sweat’s absence.
“He said that everybody here was present, even for just a short period of time, but no decisions were made on that day,” Scott said, recalling Sweat’s explanation to her about the private meeting.
Sweat is on vacation and was unable to be reached for comment on why the meeting date was before any county officials knew how Neuman would rule.
“There was no decision made on that day, but they just wanted to confirm that the Washington County Board of Elections was not submitting the appeal, but the RNC was submitting the appeal,” Scott said.
Neither Sherman nor Scott could be reached for comment after the meeting to explain the discrepancy in the dates. There’s no indication that any parts of Neuman’s order were released before it was filed, and both Sherman and Janis have since made public statements criticizing his ruling.
The ACLU of Pennsylvania and Philadelphia-based Public Interest Law Center are representing seven county residents in the lawsuit filed July 1 claiming they were among 259 voters disenfranchised because the elections board never notified them about mistakes on their mail-in ballots ahead of the April 23 election. Mail-in ballots that are misdated or do not include signatures or dates on the outer envelopes are not counted, according to state election laws.
Coalfield Justice and the NAACP in Washington are also listed as plaintiffs in the lawsuit. Gavyn Marincheck, a community organizer with the Center for Coalfield Justice, said in a written statement that the situation reeked of “deception” trying to disenfranchise the county’s electorate.
“What I am taking away from the meeting today is that either RNC strong-armed the county into continuing with this appeal, or taxpayers are not hearing truthful information from our elected officials about their decision-making in this case,” Marincheck said. “Either way, it very much feels like our voting rights are a game to them, and this case is serving some higher politically-motivated purpose.”
Neuman’s order does not specify what ballot curing options must be offered to voters, but his ruling requires the county to at least notify them of mistakes with their mail-in envelopes and allow them a chance to cast a provisional ballot on Election Day. Meanwhile, Neuman filed an opinion Monday asking the state Commonwealth Court to dismiss the RNC’s appeal because he states the party’s attorneys filed it after the 10-day deadline.
Commonwealth Court is now weighing whether to accept the RNC’s appeal after briefs were due by Wednesday. The state Department of State filed an amicus brief Tuesday, while the Democratic National Committee and the Pennsylvania Democratic Party did the same on Wednesday. If the Commonwealth Court rules on the case, it could ultimately go to the state Supreme Court and set precedent on how voters across Pennsylvania are notified about fatal flaws with their mail-in ballots ahead of the Nov. 5 general election.
“All costs moving forward will be absorbed by the RNC,” Sherman said, even if it goes to the Supreme Court. “So this will not be a burden to the Washington County taxpayers.”
But Maggi still questioned who made the decision to have Berardinelli – the Pittsburgh-based attorney who the county has already paid more than $75,000 so far to defend it in the lawsuit – join the appeal.
“We’re not sure who gave the approval (for Washington County) to become a rider on this?” Maggi asked.
“We’re voting on that right now,” Sherman said of the reason for Thursday’s special meeting.
“We’re still going to be a named party, no matter what,” Scott said of why the county is included.
Reached by telephone Thursday afternoon, Berardinelli cited attorney-client privilege on why he could not comment on who authorized him to join the appeal filed last week. He instead directed questions to Sweat or the elections board.
During the special meeting, three of the 16 people in attendance spoke during public comment in favor of allowing ballot-curing options while also questioning why the county was participating in the appeal.
“I want to know from the Republican commissioners why this is a hill you want to die on?” Sharon Laffey said. “We’re talking about people making a mistake on their ballots. … No one’s vote should be thrown away for making a mistake on their ballot.”
Before the conclusion of Thursday’s meeting Maggi asked the elections board to vote on how they would notify people for ballot-curing purposes this fall, but Sherman declined to entertain the motion since it wasn’t advertised as part of the special meeting. The board is expected to have one more meeting before the election to discuss the issue.