During a lengthy hearing on Tuesday, Luzerne County’s Election Board stuck with its original decisions on accepting and rejecting hundreds of contested Nov. 5 general election provisional ballots.
The hearing at the county’s Penn Place Building in downtown Wilkes-Barre will resume at 8:30 a.m. Wednesday because the board still must vote on the final batch of challenged ballots from 600 voters flagged as not registered.
Challenges were filed by attorneys representing the campaigns of U.S. Senate candidates Robert P. Casey Jr. and Dave McCormick. The candidates are currently 17,548 votes apart, with McCormick in the lead, according to the latest unofficial statewide results posted Tuesday.
Attorney Greg McIntosh, of Kleinbard LLC, represented McCormick’s campaign in Tuesday’s hearing. Three attorneys were in attendance representing Casey’s campaign — Renata O’Donnell, of Elias Law Group, and Neil and Cathy O’Donnell, of O’Donnell Law Offices.
Paper provisional ballots are cast at polling places on Election Day and must be reviewed last by the board to verify the voters are properly registered and did not also cast a mail ballot.
Voter registration
The batch of voters not registered was originally 600 and challenged by Casey’s campaign.
Attorney Neil O’Donnell said he has evidence at least 91 on the list are properly registered and asked what is being done to further examine the records.
The board asked the election bureau to extensively research all contested voters in the state’s voter registration database. While the bureau was still performing that research when the hearing wrapped up around 5 p.m., it already determined at least 33 on the list of 91 were properly registered, officials said. The list was supplied by Casey’s legal counsel and the American Civil Liberties Union (ACLU) of Pennsylvania.
In another category, Casey’s campaign challenged ballots from voters identified as registered in other counties.
The board upheld its rejection of 83 ballots in this group but found on further review that 17 ballots in the batch had no apparent voter registration problems or deficiencies and should advance through processing.
O’Donnell thanked the board and election director for “saving some votes here” but said the discovery of some ballots with no deficiencies gave him “great pause.”
McCormick challenges
The main objection from the McCormick campaign involved what ended up being 21 ballots missing judge of election signatures on the outer envelope.
The election board had accepted these based on Pennsylvania Department of State guidance indicating ballots should not be rejected due to a missing judge of elections signature.
McIntosh said the state election code mandates the signature.
Neil O’Donnell said the board “got this right” in accepting them because voters should not be penalized due to poll worker error.
McIntosh countered that state law is clear and makes no exception for election worker error.
Only six other ballots were challenged by McCormick’s campaign for various reasons. McIntosh withdrew challenges on five, and the board rejected the attempt to throw out the remaining ballot.
Casey challenges
In addition to the objections already noted, Casey’s campaign unsuccessfully challenged the board’s rejection of the following provisional ballots:
• 173 missing one or both outer envelope voter signatures
• 133 identified as inactive due to not voting in the prior two federal elections
• 44 ballots not inserted in inner secrecy envelopes
• 8 without outer envelopes
• 1 with a voter-identifying mark on the ballot
Attorney positions
In their opening statements, Neil O’Donnell repeatedly argued provisional voters should not be penalized for technical issues that are not their fault, while McIntosh said state law wording must be honored.
O’Donnell told the board members they have “enormous power” to determine the fate of 1,100 ballots cast by voters who stood in line to perform their “solemn civic duty.”
He maintained many voters were “diverted wrongfully” to cast provisional ballots instead of being permitted to vote on the ballot marking devices or by mail.
O’Donnell recalled the “pall over this room” on Friday when the board was forced to reject 142 mail ballots because they were inadvertently unsealed on Election Day instead of remaining segregated for further review.
He urged the board to “harness the energy of that terrible situation” to make those 142 the only votes that don’t count, maintaining his challenges extend beyond any candidate and aim to protect civil liberties.
He described the provisional ballot procedures as a “trap for the unwary” and noted the county had 2,809 provisional ballots, which was the fifth highest among counties in the state. He questioned if issues with the state voter registration database and other matters contributed to the volume.
In his statement, McIntosh said allegations about the state voter database are “misplaced” because the election board does not manage that system.
Plain language of the law must be followed for voter registration and provisional ballots lacking required signatures and inner secrecy envelopes, he said.
County Assistant Solicitor Gene Molino said he bases recommendations on the law and provides both options on “gray areas.”
Both campaigns will have the right to appeal the board’s final decisions to the county Court of Common Pleas within two days, Molino said.
O’Donnell and McIntosh said they will be consulting with their respective campaigns to determine whether appeals will be filed.
Four of the county’s five volunteer election board members conducted Tuesday’s hearing, which started at 9:30 a.m.: Chairwoman Denise Williams, Vice Chairwoman Alyssa Fusaro, Daniel Schramm and Albert Schlosser. Board member Rick Morelli was absent.
Office closed
In another matter, county officials announced the election bureau will be closed on Wednesday because staff will be involved in conducting a mandatory recount in the U.S. Senate race.