January 30, 2023

Luzerne County Electoral Board member Danny Schramm said Monday he requested a special session to withdraw his support for a recent change in how voters can address absentee ballot errors on Election Day.

Schramm said he could no longer cast the vote required for the change after reading a new notice from the American Civil Liberties Union of Pennsylvania asking the board to reconsider its decision.

The special session is scheduled for Wednesday at 9:00 a.m. in Courtroom A on the third floor of the circuit’s Penn Place Building, 20 N. Pennsylvania Ave., in Wilkes-Barre.

Chief Executive Denise Williams said the meeting could not be held until Wednesday due to a 24-hour notice requirement. Remote attendance is not an option because the council’s courthouse boardroom, equipped for virtual sessions, was not available until Wednesday afternoon and a snowstorm is forecast, Williams said.

Williams said she wants to avoid waiting for a decision if possible, as the polls office has already begun identifying Jan. 31 special ballots with defects in the outer cover and needs direction from the board to give voters the options to explain. The Jan. 31 special election to replace former state senator John Gmapper is affecting voters in 18 counties.

Electoral Officer Alyssa Fusaro had proposed the change, requiring voters to appear at the Penn Place polling station on election day to address a shortage of absentee voting, rather than the previous option of dropping off a provisional ballot at their polling station.

Her motion passed with the support of executive vice chairman Jim Mangan and Schramm, while Williams and board member Audrey Serniak voted no.

Fusaro had argued that provisional ballots cannot be a correction option because they contain a certificate confirming that the provisional ballot is the only ballot cast by the voter in the election. State law also states that a provisional ballot is not counted if the voter’s absentee ballot is received in a timely manner by a county election committee, she said.

The ACLU said absentee ballots received in a timely manner are not considered “cast” if they contain a serious error because they are set aside and not counted.

Because preliminary paper ballots are checked during the post-Election Day decision, the board can verify whether the absentee ballot had a serious error to ensure only one vote is cast and counted at a time, the ACLU said, adding that one Change made just before the special election could cause confusion for both voters and poll workers.

The ban on provisional voting to cure deficient mail-in ballots poses a high risk of disenfranchisement for voters unable to travel to Wilkes-Barre and also violates the Federal Help America Vote Act (HAVA) and the U.S. and Pennsylvania constitutions, the ACLU Letter citing case law and finding a voter’s right to cast a provisional ballot under HAVA is “compulsory and unequivocal.”

Fusaro made this statement on Monday:

“Although provisional ballots may be cast, the statute at Title 25 § 3050(a.4)(5)(ii)(F) states that if the board has received their ballot in a timely manner, they will not be counted. My decision to bring this matter to the board was simply to remove any future challenges in the decision-making process and give the voter the best chance to make their vote count, rather than being challenged during the decision-making process.”

She also pointed out that the ACLU letter was addressed to the County Chief Solicitor and not sent directly to the Elections Committee.

Sixteen voters have cured their erroneous mail-in ballots by preliminary voting in the statewide general on Nov. 8, officials said. A Republican Party attorney filed a challenge with the board, and four board members voted to accept the 16 provisional ballots after a hearing, with Fusaro casting the only no vote, according to Williams. No appeal has been filed, she said.

Williams said Monday she appreciates the ACLU’s input and has been awaiting comment from the county attorney’s office on the legality of the policy change she requested immediately after it was approved by the board on Jan. 18, specifically on whether the change in the The law and state online advice contradict her.

Schramm also welcomed the ACLU announcement, saying he voted in favor of the change because of some arguments made during the meeting.

“Originally it appeared that allowing the preliminary vote to be allowed was illegal. That was a misleading representation,” said Schramm.

Schramm said he sees no reason to force voters to travel to Penn Place on Election Day and deal with a possible struggle to find parking to address a mail-in ballot shortage, such as a B. Missing signature or missing date on the outer envelope.

He expressed frustration that he is sometimes expected to vote “on the spur of the moment” on board matters.

“I want to think more, and we often get mixed messages,” Schramm said.

About 4,800 voters applied for mail-in ballots for the Jan. 31 special election, and it remains to be seen how many will have disqualifying flaws.

While the electoral office began alerting voters to some flaws in the outer envelope ahead of Election Day in November’s general election, some flaws will not be revealed until Election Day, when postal ballot paperwork is being processed. In the latter case, the electoral board provides lists of incorrect ballots to political parties on election day so that these representatives can attempt to contact voters.

The bureau has early knowledge of which ballots have outside envelopes because they are using a new ballot sorting machine. Previously, on election day, worker teams began checking the outer envelopes and discarding those with defects.

Board Powers

In an email to the county council on Monday, Fusaro referenced the polling station’s decision to notify voters of shortcomings ahead of Election Day.

Acting Secretary of State for Pennsylvania Leigh M. Chapman publicly issued a news release ahead of the Nov. 8 general election, saying that county polling offices were encouraged to contact voters whose absentee ballots are canceled due to outer envelope errors was made to give voters a chance to remedy the situation.

After reviewing the new state guidance with the county attorney’s office, the bureau issued warnings to voters whose ballots lacked the required signatures on the outer envelope or did not contain dates or dates out of range.

Fusaro and Jim Mangan — the two Republicans on the five-citizen board — had said they were unhappy with the state’s urging of polling stations to notify voters outside of the healing process conducted by the board on Election Day.

Fusaro told the council on Monday that this procedure for prior contact with voters was carried out by the presidency and was never adopted by the electoral committee.

“Since my appointment, many policies and procedures have been changed without board approval because we were told it was ‘not our role,'” she wrote.

Fusaro called on the council to revise the county’s administrative law without delay to spell out the powers of the board, saying the code, as written, has made the board “nothing but a flagship role in which we… Sign documents over which we have no control”.

County Councilman Stephen J. Urban said Monday he was drafting a proposed change to the administrative code that would make the elections office a separate entity under the oversight of the Volunteer Citizens’ Committee, claiming that under state law for the elections office to be discontinued, the board required the purchase of equipment, budgets, policies/procedures and investigation of irregularities and possible fraudulent activities.

Urban said he will shortly submit his draft to the county attorney’s office for non-binding comment, and then forward it to fellow councilors for possible adoption.

For now, at least, the board is negotiating with administration on a “best practices” agreement that will give the board more leverage over election budgets, equipment purchases, and hiring.

Reach out to Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.

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