As promised by Luzerne County Chief Solicitor Harry W. Skene last week, the county filed a two-part legal action Monday to get county council’s election board reconstitution question on the Nov. 7 general election ballot.
The first part of the filing, called a peremptory challenge, asks the county Court of Common Pleas to convene a panel of judges or electors to properly frame the home rule charter amendment question or questions.
In another option, the second filing is a mandamus action asking the court to order the county election board to frame the question/questions and certify the ballot referendum within a specified time period.
Court intervention was authorized by council because the election board did not vote to provide required certification at its Aug. 16 meeting. Instead, the board unanimously agreed to send it back to the county law office for revisions, saying the number of changes warrants eight separate questions instead of one.
Skene told council in a Friday email he wanted to give the court “alternative options to find in our favor” and “avoid delay” by filing both court actions simultaneously.
Time is an issue because Sept. 11 is the deadline to finalize the general election ballot so it can be proofed and printed for mail ballot voters and programmed into electronic ballot marking devices used at polling places, officials have said.
The proposed ballot amendment would revamp the charter section covering the election board and include changes in the way a fifth seat is structured and filled and the eligibility requirements for all board members. It also vacates the currently seated board if the amendment passes.
Mandamus
According to the county’s mandamus filing against the election board:
State election law requires the board to “frame the question to be placed upon the ballot” along with a plain English description.
A plain language statement does not appear on the ballot with a ballot question but is posted at polling places and in legal notices to provide more explanation to voters on proposed changes.
The filing asserts the election board “refused to frame the ballot question based upon the substance of” council’s ordinance at the board’s Aug. 16 meeting “despite explicit instructions” from county law office attorneys that it was the board’s responsibility.
The board is not scheduled to meet again until Sept. 13, or after the county’s Sept. 11 printing deadline for the Nov. 7 ballot.
Permitting the board to delay a decision until its Sept. 13 meeting is “tantamount to allowing defendant to refuse to frame the question for the ballot” due to the Sept. 11 deadline, it said.
A special election board meeting is necessary and requires at least 24-hour advance notice to the public, it said.
The mandamus asks the court to command the election board to frame the question and prepare a plain English statement before Sept. 11 and schedule a special meeting as necessary to make that happen.
The election board will be entitled to legal representation from an outside attorney to advocate on the board’s behalf at a hearing.
Skene had informed council he retained the law firm Joyce, Carmody and Moran to represent the county and file the action. He said this was necessary because the county Office of Law determined a conflict exists with the election board, partially due to court testimony that will be required by two county assistant solicitors — Shannon Crake Lapsansky and Paula Radick — related to the legal opinions they provided to the board.
Election board members had stated the single question in council’s ballot referendum ordinance and a version proposed by the law office do not sufficiently inform voters of what they would be deciding.
Alyssa Fusaro, who serves on the volunteer five-citizen election board, said Monday she is awaiting word on how the board will proceed in securing legal counsel.
“It feels as though county council is trying to pull the wool over the eyes of the people of Luzerne County by framing the question too broadly and forcing them to vote for eight changes to the charter in one ballot question,” said Fusaro, a Republican. “The people of Luzerne County deserve the right to vote on each of the eight changes, as they may not agree with them all.”
Peremptory challenge
The filing says state law “contemplates situations” in which a county Court of Common Pleas President Judge must appoint judges or electors to serve instead of election board members when there is a ballot question relating to home rule charter amendments.
This instance warrants the appointment of judges or electors because the referendum is a charter amendment that “directly impacts the board and its members” and “will serve to eliminate said members from the board,” it said.
A temporary panel also is needed to “avoid any appearance of a conflict of interest or bias on the part of the board,” it maintained.
“As such, it would be unfair to require the members of the Board of Elections and Registration to perform their statutorily-mandated election duties which in turn may have the effect of stripping them or removing them from the voluntary service as members of the board, which they have graciously performed on behalf of Luzerne County,” it said.
Message to board
Skene sent an email to election board members at 4:30 p.m. Monday, around the time of the filing in county court.
“Unfortunately due to your refusal to comply with your statutory obligation we were forced to bring an action requesting the court to direct you to perform your functions as a board,” it said.
The email included a revised ballot question and plain English statement for the board’s consideration and a request to immediately schedule a special board meeting to review and approve the referendum wording.
The law office is suggesting this ballot question:
“Should the Luzerne County Home Rule Charter be amended at Section 8.04 to reconstitute the Board of Elections, allow Council to appoint the fifth Board Member to two year terms, require Board reorganization after each Municipal Election, allow Board members to run for office, reduce political party affiliation to three years and allow former elected officials, County employees (except election workers), contractors or appointees to be eligible for Board appointment after two years have elapsed?
Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.