Luzerne County’s Election Board filed court paperwork Friday arguing it has a duty to ensure county council’s Nov. 7 ballot referendum is in proper order, which includes determining its legality.
And although the board has not formally made such a determination, the filing argues council’s referendum ordinance is “so flawed as to have no legal merit.”
For starters, the filing argues the referendum’s “vast rewriting” of the county home rule charter section covering the election board could not be put before voters without formation of an elected government study commission.
In another “fatal flaw,” council’s referendum ordinance does not comply with a charter requirement that limits ordinances to one subject, said the filing by Kingston attorney Joseph M. Cosgrove, of Selingo Guagliardo LLC, which is representing the five-citizen, volunteer board.
“In the present case, the ordinance in question is a hodgepodge of separate, distinct, unique and discrete alterations of a firmly and now long established governmental framework. It will be hard, if not impossible, for the voters to understand exactly what they would be voting on, not to mention the incredible difficulty the board has in trying to concoct the ballot question or questions and plain English statement to explain all this,” the filing said.
It also singles out the referendum’s proposal to remove a restriction on election board members running for office while serving, saying this “runs contrary to state law.”
“In light of the foregoing, the board prays that the court find in its favor and dismiss the matters pending against it,” the filing says.
Council authorized court intervention in this matter because the election board did not vote to provide required certification of the referendum at its Aug. 16 meeting. Instead, the board unanimously agreed to send it back to the county law office for revisions, saying the number of changes warrants eight separate questions instead of one.
The county law office had taken the position the election board performs more of a ministerial function and must frame and certify the referendum question or questions because the referendum was approved by county council, the legislative body.
The amendment, if approved by voters, would revamp the county home rule charter section covering the election board and include changes in the way a fifth seat is structured and filled and the eligibility requirements for all board members. It also vacates the currently seated board if the amendment passes.
The county’s two-part legal action asks the county Court of Common Pleas to consider one of two options:
• A mandamus ordering the election board to hold one or more special meetings to frame the question/questions and certify the ballot referendum before the Sept. 11 deadline to finalize the general election ballot.
• A peremptory challenge asking the court to take the matter out of the election board’s hands and convene a panel of judges or electors to properly frame the home rule charter amendment question or questions.
The court has scheduled a hearing at 10 a.m. on Tuesday on the county’s filings.
It’s likely the court also will hear oral arguments from both sides on the board’s filing seeking dismissal.
The county law office retained the law firm Joyce, Carmody and Moran to file its action and represent the county. County Chief Solicitor Harry W. Skene said outside counsel was necessary because the county Office of Law determined a conflict exists with the election board, partially due to court testimony that will be required by two county assistant solicitors — Shannon Crake Lapsansky and Paula Radick — related to the legal opinions they provided to the board.
Meanwhile, the election board has scheduled a special meeting at 6 p.m. on Thursday. The meeting agenda is not expected until next week. Alyssa Fusaro, James Mangan, Daniel Schramm, Audrey Serniak and Denise Williams serve on the election board.