Meet the new boss! Same as the old boss! Lamont McClure has officially been re-elected as Northampton County Executive. During an occasionally raucous 2 1/2 hour meeting of the Elections Commission on Monday afternoon, results of the November 2 municipal race were certified. The meeting was attended by nearly 40 people. Most had something to say.
Undated MIBs Not Counted
One significant difference in the vote tallies conducted in Northampton and Lehigh County concerned undated mail-in ballots (MIBs). Lehigh County chose to count them, while Northampton did not. In Lehigh County, their Board of Elections made the decision to count the undated MIBs. In Northampton County, the decision to exclude undated MIBs was apparently made by the county administration. This question should have been decided by the Elections Commission.
In Lehigh County, there are about 260 undated MIBs, enough to swing the judicial race between Dave Ritter and Zac Cohen to the latter. This is because about 70% of returned MIBs are Democratic. Judge Edward Reibman has been asked to decide whether undated MIBs should count. His decision will almost certainly be appealed.
In Northampton County, there are about 200 undated MIBs. If they were counted, they almost certainly would give Democrat Patti Bruno the 5th Council seat instead of John Brown. The unofficial tally placed her at just 42 votes behind him.
During the meeting, Dem party boss Matt Munsey urged the Elections Commission to count the undated ballots. He argued a person could insert whatever date he wanted and the vote would still count so long as the ballot is received before 8 pm on election day. He said, and courts have held, that they should err on the side of voters over a technicality.
Agreeing with Munsey was Attorney Michael Vargo, speaking on behalf of candidate Patti Bruno. He noted that all the undated ballots were received in a timely manner, and the Commission's decision effectively disenfranchises about 200 voters. Republican Commission member Frank DeVito said this change should come from the legislature. Maude Hornick, another Republican Commission member, said that counting undated ballots would be unfair to in-person voters who leave the polling place and forget to cast their ballot. Unless they are caught before they are outside the door, it's too late for their vote to count.
No formal challenge was filed concerning MIBs in Northampton County.
Last year, a divided Pa. Supreme Court honored undated MIBs received by election day. Justice Christine Donahue, writing the majority opinion, noted a well-settled principle of Pennsylvania election law that “[e]very rationalization within the realm of common sense should aim at saving the ballot rather than voiding it.”
Although Justice David Wecht went along with Donahue, he made clear that, "in future elections, I would treat the date and sign requirement as mandatory in both particulars, with the omission of either item sufficient without more to invalidate the ballot in question." His was the fifth vote needed for a majority.
Without Justice Wecht, it appears that Lehigh County's decision to allow undated MIBs is doomed.
24-hour Drop Boxes Panned
Most of the remaining speakers were there to address 24-hour drop boxes. Most were opposed. Mary Woznik suggested it was "inappropriate" for McClure, a candidate, to meet with 24-hour drop box supporter Lehigh Valley Stand Up concerning this issue. Mel Morgan noted, "We already have 24 -hour drop boxes called the post office." Failed Council candidate AnnaMarie Robertone, who finished 10th out of 10 candidates, said they open the door to fraud. She failed to explain exactly how that occurs.
Drop boxes had supporters, too. Fred Kruninger (sp?) said disenfranchisement, and not voter fraud, is the real issue. He argued that drop boxes are a convenience to those working several jobs or who are less mobile. He was echoed by Dale Sourbeck, who added that drop boxes are needed because the mail is "not good."
Sourbeck's comment prompted Commission member Maude Hornick to ask Sourbeck whether he got his ballot by mail. He did, and she snarked, "So it works one way and not the other." He indicated he applied for a MIB as soon as they were available.
Margie DeRensis (sp?) noted that drop boxes are needed by those who apply for a MIB late in the process. Commission member Frank DeVito later said, "That's on you."
Ar the conclusion of all this input, the Elections Commission voted 4-0 to recommend that drop box hours be limited to between 7 am and 10 pm.
Voting for this limitation were Democratic members Dr. Alan Brau and Gail W Preuninger as well as Republicans Maudenia Hornick and Frank L DeVito. Daniel Lopresti, a Democrat, was absent.
Political Signage at Polling Places
Although the wording in the meeting agenda was vague, the Elections Commission never had any intention of banning political signage from polling places. Registrar Amy Cozze explained that, on Election Eve, Easton Area School District unilaterally decided to remove all signs because candidates just leave them there.
She asked the Commission to recommend that County Council adopt an ordinance requiring removal after an election This recommendation was approved by Elections Comm'rs Brau, DeVito, Hornick and Preuninger.
Sore Loser Complaints
Failed Exec candidate Steve Lynch, accompanied by several of his acolytes, was there to complain about an unfair canvassing process even though there was bipartisan agreement among canvassers on counting and discounting questionable ballots. He also complained about the elections office retaining custody of MIBs, suggesting mischief was afoot. "We were lied to," he charged at one point. He never addressed drop boxes or undated MIBs, which is what brought most people to the meeting.
Authority of the Elections Commission
At one point during the meeting. Solicitor Richard Santee was asked precisely what authority the Elections Commission has. He noted that NorCo is a Home Rule Charter County in which procurement decisions are made by County Council and personnel decisions are made by the administration. He believes that the Elections Comm'n primarily engages in judicial functions. He did admit that the powers are a bit of a "grey area."
Elections Comm'rs Frank DeVito and Maude Hornick complain they are pretty much ignored. That's on them. Last year, they refused to approve epollbooks before the Presidential primary. This would have made an election impossible because the county was unable to obtain paper poll books. This refusal was a direct violation of their mandate to administer the conduct of elections. Instead of administering an election, they were preventing it from taking place,.
Authority for our Home Rule Charter comes from the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. Section 2901 et seq. A home rule government may "exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter ... shall be liberally construed in favor of the municipality." 53 Pa.C.S. Section 2961.
This enabling law imposes a limitation on the "registration of electors and the conduct of elections." Those matters "may not be contrary to or in limitation or enlargement of powers granted by statutes." Id. Section 2962(a)(5). Thus, a Home Rule Charter County is unable to allow same day registration or change election dates. It is unable to postpone an election simply because it dislikes epollbooks.
Northampton County's Home Rule Charter establishes the Elections Commission to "administer the system of elections and the registration of voters under applicable law." HRC, Section 1007. (emphasis added.) That applicable law is both the Election Code and other provisions of the Home Rule Charter. They must be read in pari materia (together). The Elections Commission administers the conduct of elections and registration of voters. But this should be distinguished from the purchase of equipment or the hiring of employees, which has nothing to do with the actual conduct of an election.
The one requirement the Election Code expressly places on a Home Rule Charter County is the appointment of at least one minority party representative on the Elections Comm'n. Northampton County has two.
The Election Code also gives the Elections Commission authority to make purchases and hire and fire employees. But these provisions have nothing to do with the actual conduct of elections or registration of voters. Thus, a Home Rule Charter County can perform these functions under other provisions established by law.
Article XIII of the HRC establishes a career service to ensure professionalism in county employment. If the Elections Comm'n were able to hire and fire at its own pleasure, this would create the very kind of cronyism the Home Rule Charter was intended to AVOID. Thus, the hiring and firing of employees, which is totally unrelated to the conduct of elections, is properly a function of the county's own hiring procedures.
Commissioner DeVito has now three times pointed out that, in the past, the Elections Comm'n has hired its own Registrar. He is correct, but the Elections Comm'n was simply ratifying a choice already made by the administration. Under the Charter, the administration hires and fires.
Article II of the HRC gives County Council, and not the Elections Comm'n, authority over the purse strings. The purchase of a voting system or epollbooks is unrelated to the actual conduct of an election, and hence is the province of County Council.
To be sure, there are functions that are the sole province of the Elections Comm'n, such as investigations into voter fraud, acceptance of returns and drop boxes. The decision to count or discount undated MIBs should have been made by them. Purchases and personnel are beyond the scope of this part-time volunteer body selected by party chairs. But the actual conduct of an election is their province, not that of an Exec seeking re-election.
I believe the Elections Commission has the authority to approve the hours of operation of drop boxes or disapprove them altogether.
