Luzerne County Election Board rejects ballot referendum

During a special meeting Thursday, Luzerne County’s Election Board unanimously rejected the placement of county council’s referendum on the Nov. 7 general election ballot.

The five volunteer citizen board members — James Mangan, Daniel Schramm, Denise Williams, Audrey Serniak and Alyssa Fusaro — cited multiple concerns with the referendum, which would reconstitute the election board.

The county may make another last-ditch attempt to force action through the county Court of Common Pleas to get the referendum on the ballot, but time is running out with the election nearly eight weeks away.

All ballot content must be finalized by Monday for the election bureau to stay on track with the formulating, proofing and testing required before ballots can be printed for mail ballot voters and programmed for electronic ballot marking devices used by voters at the polls, county officials have said.

If the county persists in pressing for the referendum to appear on the Nov. 7 ballot, a key question would be whether there is any wiggle room beyond the Monday deadline that won’t jeopardize election preparations and elevate the risk of errors or other problems.

The matter already is pending in court because the county filed legal action after the board did not act on the referendum at its prior meeting Aug. 16. Instead of framing the referendum wording and providing the necessary certification at that time, the board had unanimously agreed to send the matter back to the county law office for revisions, saying the number of changes warrants eight separate questions instead of one.

Sixteen citizens criticized the proposed referendum during public comment before the vote.

Williams, the board chair, spoke first, saying she and the other board members have a legal obligation to ensure referendums are in proper order before certifying them, and there are several “fatal flaws” with this one.

Board members have legitimate questions and concerns and applied the same methodical review to the referendum that they have with other matters under their jurisdiction, such as adjudicating ballots, she said.

“We go down into the weeds,” Williams said, adding board members take their role “very seriously.”

Fusaro said she put aside all personal feelings when looking at the referendum.

As a quasi-judicial board, its decisions must be based on the law, and she described council’s referendum as a “back-door recall, which is illegal in Pennsylvania.”

“You cannot recall a position and/or board because you don’t agree with their stance, policy or even a particular member or members,” Fusaro said.

She also said she is confident the proposed alterations to the board would constitute a home rule charter structural change that can’t be made through a referendum — an argument also made by Williams.

“You can’t have a power shift without it being considered a structure change. No matter what way you slice it, this entire referendum question shifts power and therefore would have to be considered a structural change,” Fusaro said.

Mangan, the vice chair, said the referendum is “too convoluted” and did not present a clear intent on why council was seeking all the changes.

He noted the current board has worked as a team through multiple elections without partisanship playing a role in its decisions.

Schramm said the referendum is long and confusing, likening it to reading “War and Peace.” He could not decipher the purpose of the reconstitution, leading him to conclude council wants to “get rid of everybody and start all over.”

“There are too many things to correct,” he said, proposing council rework its referendum if it wants to proceed.

Serniak said many of her waking hours the last few weeks were consumed researching the referendum and listening to both sides, and she reached the same conclusion that it is “fatally flawed” with no simple fix.

“This is not something we take lightly,” Serniak said.

Pending action

Council had filed a mandamus action asking the court to order the board to frame the referendum wording and certify it by Sept. 11 and also sought another option for the court to take the matter out of the election board’s hands and convene a panel of judges or electors to properly frame the amendment question or questions.

Board members subsequently argued the court can’t act on either option unless it first rules on the board’s position that it has legal authority to determine if county council’s referendum is “in proper order,” which includes determining its legality.

County Judge Lesa S. Gelb told both parties Tuesday she cannot proceed because the board never made a final decision whether it would frame the wording and certify the referendum. She ordered the board to vote on the matter at its special meeting.

Stressing democracy “can’t be rushed,” Gelb also directed the board to reply to the county’s mandamus complaint within 20 days from the date of the county’s filing, which was Aug. 28. That means a response would not be due until Sept. 17. The judge declined the county’s request to schedule a court hearing on Friday, or the day after the election board’s special meeting.

Council’s proposed amendment would revamp the charter section covering the board and include changes in the way a fifth seat is structured and filled and the eligibility requirements for all board members. It also would vacate the currently seated board.

In the pending litigation, the county has taken the position the board performs more of a ministerial function and must frame and certify the referendum question or questions because the referendum was approved by council, the legislative body.

However, the board is arguing it has a statutory requirement to ensure the referendum is “in proper order.” It maintains the referendum amendment is “riddled with unlawful provisions.”