Elections board to appoint ‘special counsel’ to handle mail-in ballot lawsuit
Mike Jones/Observer-Reporter
The Washington County Board of Elections is holding a special meeting Friday morning to hire an attorney to handle the lawsuit filed Monday by seven county residents accusing officials of disenfranchising their right to vote by refusing to allow ballot curing.
The meeting is open to the public and will be held at 10 a.m. in the ground floor conference room in the Crossroads Center building in Washington.
The agenda lists an opportunity for the public to speak before the board is expected to go into a closed-door executive session to presumably talk about the lawsuit filed by the ACLU of Pennsylvania and other advocacy groups. The agenda also lists the appointment of “legal representation/special counsel” to navigate the lawsuit, although it’s not known what attorney will handle the case.
Commission Chairman Nick Sherman, who also leads the elections board, defended the county’s position to not allow ballot curing, which is the procedure for people to fix technical mistakes on their mail-in ballot envelopes so their votes will be counted.
“We stand by our decision regarding mail-in ballots and will not alter our position, despite the ACLU and other organizations suing the Washington County Elections Board,” Sherman said in a statement released Tuesday afternoon. “I urge these individuals and groups to focus their efforts on advocating for a change in the law through the state legislature.”
There is no provision in the elections code that prohibits or requires ballot curing, which is left to each individual county to decide whether or not to offer any options for voters. Many counties permit “notice and cure” to allow voters to fix mistakes – including neighboring Allegheny, Beaver, Fayette and Greene counties – although some in the state do not.
The elections code – and specifically Act 77 of 2019 that expanded the use of mail-in voting beginning in 2020 – requires a voter to sign and date the envelope and place the ballot into a secrecy inner-envelope. Any mail-in or absentee ballot missing a signature, is misdated or undated must be rejected, a federal appeals court has ruled.
The elections board, which is made up of the three county commissioners, voted 2-1 on April 11 to not allow curing, with Sherman and Commissioner Electra Janis voting against the measure and Commissioner Larry Maggi in favor of allowing people to fix mistakes on the envelopes of their ballots.
The ACLU of Pennsylvania, Public Interest Law Center and Philadelphia-based Dechert law firm filed the lawsuit Monday in Washington County Court of Common Pleas on behalf of the Center for Coalfield Justice, the Washington Branch of the NAACP and seven voters whose mail-in ballots were not tabulated because of fatal deficiencies on the envelopes. The lawsuit claims the voters were deceived by email messages they received from the elections office after returning their ballots ahead of the April 23 primary that indicated they would be contacted only if there were any issues. Instead, 259 mail-in votes with fixable mistakes were not counted, and the lawsuit contends voters were neither notified about the errors nor given any information from the elections office if they inquired about their ballot’s status.
“We will continue to abide by the law,” Sherman said in his written statement. “In Pennsylvania, election laws clearly state that upon receiving a ballot, it should be stored securely until pre-canvassing takes place. The laws are clear in stating that all ballots must be kept under lock and key, supervised, and cannot be opened until 7 a.m. on Election Day.”
The lawsuit has been assigned to Judge Brandon Neuman, who is expected to hear motions in his courtroom Tuesday. The plaintiffs previously said they expect the case to have statewide implications and that they hope a final ruling would come by September before mail-in ballots are sent out ahead of the Nov. 5 general election.
County solicitor Gary Sweat said he expects the litigation to be intense since it will happen in an expedited fashion so the appellate courts can make a decision before the general election. The payment to the special attorney to handle the case for the county will likely come from the elections board’s budget, Sweat said.
“My prediction is it’ll go to the Supreme Court of Pennsylvania,” Sweat said Wednesday. “I don’t think anyone will be happy with the lower court ruling and either side will appeal. That is going to be in-depth litigation to handle.”