Luzerne County Courthouse
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ACLU urges reversal of new Luzerne County Election Board policy

The American Civil Liberties Union of Pennsylvania is urging Luzerne County’s Election Board to reconsider its decision last week to change the way voters can address mail ballot defects on Election Day, including a special election impacting part of the county on Jan. 31.

“The board’s action does not comply with federal or state constitutional and statutory law and creates a high, and unacceptable, risk of voter disenfranchisement,” said the letter from ACLU senior voting rights policy counsel Marian K. Schneider and legal director Witold J. Walczak that the ACLU sent to the newspaper.

Election Board member Alyssa Fusaro had proposed the change requiring voters to appear at the election bureau in Wilkes-Barre if they have a mail ballot deficiency instead of the past option to cast a provisional ballot at their polling place.

Fusaro 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.

Election Board members Denise Williams and Audrey Serniak said the state had issued guidance that provisional ballots are an option, noting the county reviews provisional ballots last to verify the mail ballots from those voters were not counted due to defects, such as missing outer envelope signatures or dates.

Board Vice Chairman Jim Mangan agreed with Fusaro about requiring impacted voters to go to the election bureau to remedy the situation and added that voters need to be more educated on the proper completion of mail ballots so their votes are counted.

Board member Danny Schramm voted with Mangan and Fusaro to require voters to appear at the bureau, with Williams and Serniak voting no.

Williams, the board chair, said the change will be a “real hurdle” for voters notified of mail ballot defects on Election Day, particularly those residing in remote areas far from Wilkes-Barre.

Approximately 4,800 voters have requested mail ballots for the Jan. 31 special election, and there’s no way of knowing 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.

ACLU response

The ACLU said it appreciates the election board’s willingness to establish a notice and cure process for voters whose mail ballot envelopes contain a defect but said this process should coexist with and not displace the provisional ballot option.

Board members who voted to prohibit voters from casting a provisional ballot appear to have mistakenly believed that the Pennsylvania Election Code forbids voters from voting a provisional ballot if they have already submitted a mail or absentee ballot to the bureau, it said.

”On the contrary, it is not a violation of the Election Code for voters to cast a provisional ballot when a previously submitted mail or absentee ballot will not be counted because of a defect on the outer envelope,” it said.

It pointed to the section of law cited by Fusaro regarding the provisional ballot affidavit stating it is the only ballot cast in the election.

”If a timely-received mail ballot will not be counted because of a defect on the envelope, the mail ballot cannot be deemed ‘cast’ because it will not be counted. This is especially true because defective mail ballots are set aside and never opened,” the ACLU letter said.

It cited the law’s provision stating a provisional ballot will not be counted if the voter’s mail ballot is timely received and accepted by the board.

“Both provisions help to prevent double voting,” the ACLU said.

Because the provisional ballot is reviewed and adjudicated after Election Day, the board will be able to determine whether the voter’s mail ballot contained a fatal defect allowing the provisional to be counted, it said. If the mail ballot is counted, the board won’t count the provisional one, it said, noting this process is consistent with Pennsylvania Department of State guidance regarding the use of provisional ballots as way of curing defects in mail ballots.

“Prohibiting voters with defects on their mail ballot envelopes from voting a provisional ballot creates an unacceptably high risk that voters will be disenfranchised because many will be unable to travel to Wilkes-Barre on short notice even though they may have been able to appear in person at their local polling place to vote provisionally,” the letter said.

Prohibiting provisional voting to cure deficient mail ballots also violates the federal Help America Vote Act (HAVA) and the U.S. and Pennsylvania Constitutions, the letter argued, citing case law and noting a voter’s right to cast a provisional ballot under HAVA is “mandatory and unambiguous.”

”Such a drastic change to the board’s policy so close to the upcoming special election on Jan. 31 has a high likelihood of causing confusion for voters and poll workers alike. Voter confusion could also lead to further disenfranchisement, which is precisely why last-minute changes to election rules are disfavored by the courts,” it said.

Approximately 16 voters cured their defective mail ballots through provisional voting in the countywide Nov. 8 general, officials said. Dozens more appeared at the election bureau before Election Day to address defects.

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.

The Election Day curing list includes “naked” ballots not placed in required inner secrecy envelopes before they were inserted in the outer envelope.

The Jan. 31 special election to replace former state Sen. John Gordner impacts voters in 18 county municipalities: the townships of Black Creek, Butler, Conyngham, Dorrance, Fairview, Hollenback, Huntington, Nescopeck, Rice, Salem, Slocum, Sugarloaf and Wright and the boroughs of Conyngham, Nescopeck, New Columbus, Nuangola and Shickshinny.

There are 31 precincts and approximately 34,349 registered voters in these municipalities.