Luzerne County’s administration is retaining Attorney Timothy E. Gates as a consultant to draft standard election operating procedures — a task long requested but never fully completed, county Manager Romilda Crocamo told the county’s five-citizen Election Board Wednesday.
In another matter, the board unanimously voted to remove discussion about a county council-approved home rule charter ballot referendum from the agenda.
Regarding the outside consultant, Crocamo said plans to retain Gates stemmed from her discussions with county District Attorney Sam Sanguedolce about his office’s recent investigation report focused on the November 2022 general election paper shortage. Both the DA and Crocamo concluded comprehensive standard procedures are needed, she said.
The DA’s report had concluded the failure to procure sufficient quantities of the correct paper for voting machines last fall was “not a deliberate act, but rather a catastrophic oversight.”
Crocamo said Sanguedolce provided her with the name and curriculum vitae of Gates as a proposed consultant because Gates had served as the Pennsylvania Department of State chief counsel and has a “vast amount of experience in campaign finance law and elections issues.”
Gates works with Harisburg-based Myers Brier and Kelly, and the administration is in the process of finalizing an agreement with that firm to draft the procedures, Crocamo said. Funds are available in the election bureau budget to cover the services, she added.
The election board had voted in June 2021 to direct the election bureau to document all election processes in writing as part of a package of initiatives aimed at addressing past issues and complaints.
A partially completed working document of procedures was initiated and periodically updated, but the November 2022 paper shortage sparked a renewed discussion that a more comprehensive document was needed to ensure all legal mandates are met.
In the May primary, for example, the bureau did not include a municipality of residence on the ballot as required for candidates in several races.
Election Board members highlighted several more requests for written procedures during Wednesday’s meeting to address the:
• Recruitment and qualification requirements for poll workers.
• Stocking and sealing of voting machines before they are transported to polling places, including a checklist requiring two bureau leaders to sign off.
• Steps required to audit 2% of cast ballots as mandated after each election.
• Seals and chain-of-custody cards for red ballot bags from the time they are packed up at polling places on election night.
• Instructions provided to Election Day workers for pre-canvassing, which is the unsealing of mail ballot envelopes and processing of ballots inside.
County Election Board Chairwoman Denise Williams said the board had to take the lead in instructing workers on pre-canvassing in the primary election, which is not the board’s role, because the election bureau representative present at that time was unfamiliar with the specifics.
Standard operating procedures eliminate impromptu decision-making, reduce the potential for error and physically retain institutional knowledge so it is not lost when someone leaves, Williams said.
“It really is important,” Williams said.
Board member Audrey Serniak credited Acting Deputy Election Director Emily Cook for working diligently to craft and document many procedures.
Crocamo said Cook will forward what she has completed to date to Gates, and he will work closely with Cook and Election Director Eryn Harvey on his drafting of revisions and new, thorough procedures.
Crocamo, who started in the county oversight position May 25, said the election bureau also will be implementing metrics to track performance and completing cross-training, as recommended by the board, so essential tasks are not delayed if someone is off-duty or leaves employment.
She also promised increased communication and cooperation with the board, predicting all these measures together will lead to successful elections.
In response, the board backed away from its push to implement a written memorandum of understanding attempting to formalize how the board and administration would be involved in various election-related decisions. Crocamo said she won’t sign such an agreement because she is giving the board her word that they will work cooperatively.
Ballot question
By law, the board must review the wording of ballot referendums to ensure the questions are understandable, 75 words or less and framed in a way that voters can respond with a yes/no selection. The board also must approve a “plain English” explanation of ballot questions indicating the “purpose, limitations and effects of the ballot question to the people,” the state’s referendum handbook says.
A council majority had voted June 13 to ask November general election voters if they want to alter the election board, in part by requiring council to appoint a fifth member of any affiliation. This fifth member is currently selected by the four election board members (two Democrats and two Republicans).
The question in council’s ordinance, stated in bold, asks voters if they want council to appoint all five election board members, but several other changes with lengthier descriptions follow that are not within the bolded question or stated in question form.
One of the changes, if approved by voters, would automatically vacate the current board in January, although council members have stressed current members would be free to reapply.
Election Board member Alyssa Fusaro made a motion at the start of Wednesday’s meeting to remove the matter from the evening’s agenda, saying she is not comfortable proceeding with any deliberation until the county law office — and possibly an outside attorney — provides a legal opinion stating the board changes are allowable by law.
Fusaro said she has reviewed case law and has concerns the proposed election board alterations rise to the level of a home rule structural change that cannot be made through a referendum.
Independent of Fusaro’s concerns, county Assistant Solicitor Paula Radick said she was going to suggest the board hold off on addressing the matter because the county law office is working on a proposed plain language statement and ballot question wording to present to the board.
While a certified copy of council’s ballot question ordinance must be filed with the board by Aug. 8, Radick said the board has more time to address what will appear on the ballot.
Shaded ovals
The board unanimously voted Wednesday to count write-in votes when voters fail to shade in the oval adjacent to the handwritten name.
This issue surfaced in the May primary election because the county used paper ballots at polling places instead of electronic ballot marking devices with touchscreens for selection of the write-in option.
Although officials say they will be switching back to the electronic devices in the upcoming November general election, the oval shading is still an issue for mail ballot voters.
Based on legal advice, the board had taken the position that voters must both shade in the oval and write a name for a write-in to be accepted.
However, a panel of county judges granted Wilkes-Barre Councilman Tony Brooks’ emergency petition, which argued the county should process all write-in votes in his race, regardless of whether the ovals are shaded.
Brooks’ petition said state law prior to March 26, 2020 would have required voters to both mark the write-in selection and name of the candidate in jurisdictions with electronic voting systems that use paper ballots to register the votes.
But the law was amended after that date to eliminate the requirement that a voter “mark” a write-in candidate, specifying that voters can “indicate” their intent to select a write-in by inserting the name of the person, it said. Voters showed this indication when they expressly declined to select a named candidate on the ballot and instead wrote in the name of their choice, it said.
The panel of judges — Tina Polachek Gartley, Tarah Toohil and Stefanie Salavantis — agreed with the interpretation presented by Brooks.
Going forward, Radick advised the board to accept write-ins without shaded ovals based on this new case law set in county court.