Attorneys challenging Luzerne County Election Board decision on 990 provisional ballots

With the Robert P. Casey Jr./Dave McCormick U.S. Senate race at the forefront, attorneys from both camps are challenging the Luzerne County Election Board’s rejection and acceptance of Nov. 5 general election provisional ballots.

By Wednesday evening, the board’s decisions on 990 provisional ballots had been challenged — most by Casey’s campaign.

These challenges will come to a head at a public board hearing on contested ballots that must be held by Tuesday.

The county will be publicly posting the names of all voters with challenged ballots at luzernecounty.org to alert them that a hearing will be held in case they want to appear.

The volunteer, five-citizen board will have the option to alter its decision based on testimony presented at the hearing. Candidates will then have the right to appeal the board’s final decision to the county Court of Common Pleas within two days.

This is the same process that played out after the April primary election in the tight race for the Republican nomination in the 117th Legislative District state representative race between Jamie Walsh and Mike Cabell.

The latest unofficial statewide vote gap between Casey and McCormick stood at 29,338 on Wednesday, with McCormick in the lead.

Secretary of the Commonwealth Al Schmidt announced Wednesday evening that unofficial results in the Nov. 5 general election race for U.S. Senate have triggered a legally required statewide recount necessary when totals are within a one-half of 1% margin.

As of Wednesday afternoon, county election officials statewide reported there are 60,366 uncounted provisional ballots and 20,155 uncounted mail ballots pending final adjudication on their validity or eligibility to be counted, Schmidt said.

Nov. 25 is the deadline to certify the Nov. 5 general election, barring extension alterations tied to the Casey/McCormick recount. In addition to weekday adjudication sessions that started Monday, the board may convene on Saturday.

Board Vice Chairwoman Alyssa Fusaro objected to the Saturday session, saying she and fellow Republican board member Rick Morelli cannot be present.

Board Chairwoman Denise Williams, one of the three remaining Democratic board members, said the county’s home rule charter and board bylaws define a quorum as three members without specifying party affiliation.

Williams said the board will seek a status on remaining work from county Election Director Emily Cook on Friday to determine if the Saturday session is necessary to meet the deadline.

In addition to remaining provisional ballots and ballots involved in a spelling error in the 119th Legislative District, the board must still process ballots with write-in votes and those flagged due to issues such as voters not clearly shading bubbles or selecting more than the allotted candidates, she said.

Two audits and reconciliation also are necessary before certification, and the hearing on challenged ballots and mandatory recount also must be factored in, Williams said.

“There is a lot to do,” Williams said. “We may not have the liberty of taking Saturday off.”

County Assistant Solicitor Gene Molino said the board can reassess Friday but affirmed no party quorum is required.

Wednesday adjudication

From 9 a.m. to 6 p.m., the board tackled a large portion of the 2,800 paper provisional ballots cast at polling places Nov. 5.

Provisional ballots must be reviewed last by the board to verify the voters are properly registered and did not also cast a mail ballot.

Ballots were accepted and rejected throughout the day.

For a window into this process, the first batch of the day contained 766 provisional ballots.

Three were rejected because the board had accepted mail ballots from those voters earlier in adjudication.

The board decided seven could not be counted because the voters did not insert them in inner secrecy envelopes.

Representing Casey’s campaign, Attorney Neil O’Donnell objected and said those seven will be challenged.

The board then rejected a ballot because it contained writing identifying the voter on the ballot itself.

O’Donnell said that denial will be challenged, citing “operator error” in providing instruction to the voter. He said voters should not be penalized if they did not receive clear instruction on how to properly complete their provisional ballot at the polls.

Next up were 10 ballots without an outer envelope signature from the polling place judge of elections.

Williams said the Pennsylvania Department of State issued guidance that ballots should not be rejected due to a missing judge of elections signature.

The board unanimously accepted these 10 after Fusaro verified the election bureau will be contacting those judges of elections to inform them they did not sign.

Attorney Nick Barry, representing McCormick’s campaign, said those 10 acceptances will be challenged.

What occurred next highlights the complexity of these reviews. Once the outer envelopes were unsealed, the board learned four of the 10 missing judge of election signatures had no inner secrecy envelopes, prompting the board to reject those four.

O’Donnell then lodged a challenge to the rejection of those four.

Another 57 were missing one or both outer envelope voter signatures, prompting rejection by the board and a challenge by O’Donnell.

Seventy were rejected due to issues with voter registration cancellations, including those with inactive status because they were not shown as casting ballots in two federal elections. O’Donnell challenged those.

The board then concluded it could not count 86 from out-of-county residents not registered to vote in this county, resulting in a challenge by O’Donnell.

In the next category, there were 259 provisionals from county residents not listed as registered voters.

Fusaro said at least one voter in that group had properly submitted a voter registration application, and there may be others. Four board members decided to reject them, with Fusaro opposing that decision.

O’Donnell challenged the rejection and cited a concern with the Statewide Uniform Registry of Electors (SURE) system.

“This isn’t a Luzerne County problem. This is a SURE system problem,” O’Donnell said, noting he believes the board is acting in good faith. “There’s something wrong with the system, and we should get to the bottom of it.”

After adjudicating other issues, new bins of provisional ballots were brought before the board around 3 p.m., repeating the cycle.

Cook said the unofficial election results on the county website will be updated at some point to reflect voter candidate selections from mail ballots and uncontested provisional ballots accepted during adjudication to date. The website refreshing will be identified with a new timestamp.

Challenged ballots must remain sealed until a determination is made.