Luzerne County Council must decide how to proceed with election referendum litigation

Luzerne County Council is expected to meet in closed-door executive session before Tuesday’s meeting to review options for pending litigation over an election board reconstitution referendum it had approved for the Nov. 7 general election ballot.

The volunteer, five-citizen board unanimously decided Thursday it would not provide the certification necessary for placement on the ballot, with members citing concerns about the legality of the proposed changes.

All Nov. 7 ballot content must be finalized by today (Sept. 11) 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.

Two county-filed legal actions are pending in the county Court of Common Pleas over the matter — a mandamus filing asking the court to order the board to frame the referendum wording and certify it by Sept. 11 and an alternate request 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.

While it may be too late to resolve the litigation for the Nov. 7 election, council can continue in court attempting to get the referendum on the 2024 primary ballot.

Continued litigation will take time and money, and another option would be for council to rescind the referendum ordinance and halt the litigation.

Another factor in this decision is continued council interest in asking voters if they want to convene an elected government study commission to examine the home rule charter implemented in 2012 and decide if alterations or a whole new structure should be recommended to voters.

The county’s law office already had indicated a study commission question and election board reconstitution referendum cannot be on the same ballot under state law.

County Council Vice Chairman John Lombardo said last week he was disappointed with the election board’s decision regarding the referendum and believes council’s inability to get charter changes before voters will trigger majority support for a 2024 primary election ballot question seeking formation of a government study commission.

If council proceeds with a government study ballot question, voters would simultaneously decide whether to form a commission and elect citizens to serve on the commission if it passes.

Further complicating the matter is a potential change in the 2024 primary election date. State legislators may consider changing the primary from April 23 to March 19.

A council ordinance to place a referendum on the ballot — including a home rule study commission one — would have to be filed with the election board at least 13 Tuesdays before the primary election.

That 13-week deadline would be Dec. 19 if the primary is changed to March 19.

Should the primary date remain April 23, the 13-week deadline for council to file the referendum with the election board would be Jan. 23.

This introduces yet another dynamic because six of 11 council members will be elected in November to take office in January. If a council majority approved a study commission question this year, its unclear if a reorganized council could reverse the decision in January.

At least three new people will be joining council because Council Chairwoman Kendra Vough is not running, Councilman Tim McGinley is completing a three-term limit under the charter and Councilman Carl Bienias III did not secure a nomination in the primary.

Incumbents LeeAnn McDermott, Matthew Mitchell and Stephen J. Urban are seeking re-election.

As of Friday, no agenda items were listed for Tuesday’s meeting related to the election reconstitution referendum, the pending litigation or a study commission question.

The meeting starts at 6 p.m. at the county courthouse on River Street in Wilkes-Barre. Instructions for remote attendance will be posted under council’s online meeting link at luzernecounty.org.