Due to the timing of court proceedings, Luzerne County Council’s proposed election board reconstitution referendum may not be on the Nov. 7 general election ballot, according to statements made in court Tuesday morning.
The county said the referendum wording must be framed and certified by Monday, Sept. 11, so the ballot can be finalized for proofing, printing and voting machine programming.
But county Court of Common Pleas Judge Lesa S. Gelb said Tuesday she cannot rule on whether the board should be ordered to certify the referendum because it is premature, in part because the board has not yet formally voted on how it will proceed with the referendum.
Based on timelines for both parties to file responses and possible eventual appeals from the party that does not prevail, it appears likely a referendum could not be placed on the ballot until the 2024 primary, Gelb said, adding that democracy “can’t be rushed.”
The way it was left at the board’s last meeting Aug. 16, the board did not vote to certify the referendum and instead unanimously agreed to send the matter back to the county law office for revisions, saying the number of changes warrants eight separate questions instead of one.
That board inaction prompted council to file a mandamus action asking the court to order the board to complete the task by Sept. 11. The county also sought another option for 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.
Board members subsequently argued the court can’t act on either option unless it first rules on the board’s position that it has legal authority to determine if county council’s referendum is “in proper order,” which includes determining its legality.
Gelb issued an order Tuesday afternoon directing the board to vote on how it is going to proceed with the referendum at a special meeting the board had scheduled at 6 p.m. Thursday.
The meeting was called solely to address council’s referendum. It’s unclear if the board will reject the referendum entirely or frame the ballot wording.
Gelb’s order also directs the board to reply to the county’s mandamus complaint within 20 days from the date of the county’s filing, which was Aug. 28. That means a response would not be due until Sept. 17.
The judge declined the county’s request to schedule a court hearing on Friday, or the day after the election board meeting.
In an opinion also issued Tuesday afternoon, Gelb said the election board has not had an opportunity to file a responsive pleading to the mandamus. The county would then have an opportunity to reply to the board’s pleading, she added.
“This issue is significant not merely to both parties but to every citizen of Luzerne County. The Board of Elections oversees issues concerning free and fair elections that are fundamental to our democracy. Any changes must be taken seriously, thoughtfully, and with careful consideration of all parties’ submissions. These issues should not be rushed through without proper briefing and argument,” her order said.
A normal pleading practice is the “more prudent course,” she wrote.
“Democracy takes time,” she wrote. “This court will follow normal procedures and will promptly address all matters before it.”
If approved by voters, the amendment would revamp the 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.
Board power
Beyond the referendum itself, the proceeding has evolved into a disagreement over the board’s powers that has been simmering for years.
The county’s charter, implemented in 2012, changed the board from three elected commissioners to five citizens.
The county has taken the position the 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.
However, the board is arguing it has a statutory requirement to ensure the referendum is “in proper order.”
The county filed a brief on Labor Day through its outside legal counsel — Attorney Lawrence J. Moran Jr. and others from Joyce, Carmody and Moran.
A reply was filed Tuesday by the election board’s outside legal counsel — Joseph M. Cosgrove, of Selingo Guagliardo LLC.
County argument
According to the county’s new filing:
The board’s reliance on the “in proper order” phrase is “an overreaching, unsupported attempt by an unelected, appointed board of laypersons to usurp authority to decide this question from the proper entity — the electorate of Luzerne County.”
The county “vehemently disputes” the proposed amendment is improper or unlawful or that the board of five appointed citizens is “empowered to determine the substantive validity” of a referendum properly enacted by the county’s governing body and “deny the electorate the ability to vote on the amendment.”
State law does not expressly grant the board power to rule on the legal sufficiency of a referendum, and the board is asking the court to “imply such substantial authority from the phrase ‘in proper order,’” it said.
“Here, the Board of Elections asks this court to imply its authority to judge and determine that a duly enacted ordinance of county council is unlawful, without any meaningful due process protections, and resulting in the disenfranchisement of the entire electorate of Luzerne County in voting on this question,” it said.
It offers this notation:
“If the court allows defendant to expand and inflate an ordinary reading of ‘proper order’ to empower a county election board to deny ballot access to referendum questions and candidates for purported constitutional concerns, this will be the beginning of abuses that can conceivably blossom into full-scale crises,” it said.
“As an example, the present actions/inactions of defendant are akin to denying ballot access to Donald Trump, in the future, because a few lay citizens comprising the election board may believe he is ineligible to serve because of language in the 14th Amendment having to do with rebellion and insurrection, even though no such determination has been made by a court.”
Board response
According to the board’s Tuesday filing:
Council’s passage and timely delivery of the referendum ordinance to the board does not make it lawful, and the law “imposes an affirmative duty on the board to assess that lawfulness.”
“Indeed, the language of the statute is clear, but the county will have none of it. According to the county, the board is nothing more than council’s clerk, and is required to concoct questions and a plain English statement explaining the amendment for placement of same on the ballot. Nothing more.”
In making sure the proposed amendment is legally proper, the board “protects the electorate from consideration of an enactment which, as with the present ordinance/amendment, is so fundamentally infirm,” it said.
It also argues the referendum amendment is “riddled with unlawful provisions.”
“If this court were to rule in favor of the county, it would force the board to advance a referendum which cannot pass legal muster. That is something which neither this court nor any court can allow.”
The board also argues the county’s filing “ventures into the absurd” with assertions of far-reaching negative impacts of a ruling in the board’s favor. The county’s argument “veers into the bizarre” in its claim that the board could exclude a presidential candidate from the ballot, saying the state certifies presidential candidates that must be placed on the ballot in all counties.