DV Journal

After the state Office of Open Records (OOR) ruled signatures on mail-in ballots are public records, Delaware County agreed to allow a group of candidates to look at and count the envelopes from the May 16 primary.

Lead petitioner Joy Schwartz, a Republican running for county council, said six people are prepared to begin the process on July 18. The county did not comment on the settlement.

The OOR opinion comes on the heels of a hearing last week in Commonwealth Court, where the judge sent a case Schwartz and others filed to request to examine mail-in ballot envelopes to Common Pleas Court.

Schwartz and plaintiffs Gregory Stenstrom, Leah Hoopes, and Paul Rumley had filed three petitions asking the Commonwealth Court to intervene. Schwartz and her supporters, who represent themselves, were initially denied permission to look at the envelopes by county officials. Then, after the certification occurred, they were told they could. However, Secretary of State Al Schmidt suggested the names must be redacted from envelopes first for privacy reasons. As workers began to affix blue strips of painter’s tape over the names, Schwartz was concerned the envelopes would be damaged. She subsequently filed a second court challenge.

Commonwealth Court Judge Michael H. Wojcik also removed Schmidt as a defendant.

The petitioners had argued that blue tape the county was using to cover the signatures could cause the signatures to be ruined, which would be a violation of Act 77, the right-to-know law and state election code, said Schwartz.

“My big concern is that they have had well over a month of delay in producing the records. Suppose the envelopes are all there, showing they have approximately 27,000 valid declarations with signatures on them, and the corresponding images exist on the BlueCrest sorter, which scans them. In that case, the county should have no worries. If they have all the data, why are they fighting so hard to keep it from the public?” asked Schwartz, a retired history teacher.

“Delaware County is pleased that the court agreed with us that there was no jurisdiction for the case in the Commonwealth Court,” said Ryan Herlinger, a spokesman for the county, after Wojcik’s decision.

Schwartz and the other plaintiffs have also been joined by four candidates for the Rose Tree Media School Board: Kathyrn Buckley, Pat Bleasdale, Loranne Mazzulo, and Dean Dreibelbis.

Schwartz said the plaintiffs did not initially take their case to Common Pleas Court because an earlier election case they brought was “subject to strategic mooting in Delco. The Delco Court of Common Pleas has refused to assign a 2022 election case to a judge for 230 days.”

As for Delaware County election officials agreeing to allow the envelopes to be counted, Schwartz said, “They were not compliant with the law, Act 77.”

“The envelopes and people’s signatures are public records,” she said. She said these are similar to voting rolls, “blue books” that many counties use for in-person voting, which are also public records.

She added Pennsylvania allows various third-party, non-governmental organizations to have access to voter records, with voters’ information, including Social Security numbers.

“It’s a very porous system,” said Schwartz.

“I’m a watchdog,” she said. “I’m trying to watch so we have safe and secure elections.”

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The results of the May 16 primary are slated to be certified Thursday, June 1.

Not so fast, says Joy Schwartz, a Republican candidate for Delaware County Council.

She requested permission to count the envelopes that the mail-in ballots were sent in. The county denied that request, despite what she claims is clear language under Act 77, the 2019 law that permits mail-in voting.

“They’ve basically denied people those records for five or six different election cycles,” said Schwartz. “In 2020 twice, twice in 2021, twice in 2022, and now again in 2023. So, I am a candidate, running unopposed (in the primary), but I wanted to get ahead of this now because I don’t want to have this fight in November, after the fact.”

Her representative, who was present during ballot “canvassing” at the county warehouse, told her the stack of mail-in ballots was much higher than the stack of envelopes those ballots came in.

“I want to see if the number of outer envelopes matches the number of mail-in ballots,” said Schwartz. “If they have fewer envelopes than mail-in ballots, that’s a huge problem. That has to be investigated.”

But, Schwartz said, she does not have to give a reason to look at the envelopes since those are public records.

John McBlain, a member of the county Election Board and a lawyer, wrote to  County Elections Director James Allen, saying, “25 PS Section 2648 indicates the Board must keep its records open to public inspection and allow for inspections of the records’ during ordinary business hours, at any time when they [the records] are not necessarily being used by the board, or its employees having duties to perform thereto.’

“I do not believe these envelopes are in use by the Board or our employees at this time,” McBlain added.

“Second, it is irrelevant what the motivation is for wanting to examine records. The Board’s response to a statutory duty should not be formed by whether we believe the motivation for the request is valid or supported by a factual basis.

“I, too, have expressed to the requestor that I have no reason to believe the underlying premise that a voluminous amount of mail-in ballots were added and/or that there were a number of mail-in ballots processed that did not arrive in outer envelopes. Nonetheless, it is the public’s right to examine the Board’s documents even if the Board believes such an exercise is a fool’s errand. I believe the Board should make its records as transparent as possible, especially to disprove any unsubstantiated gossip,” McBlain wrote.

McBlain, the minority Republican member, did not respond when DVJournal asked whether he planned to vote to certify the results.

“I’m concerned. I’m exercising my right to see those records,” said Schwartz, a retired American history and civics teacher who taught in the William Penn School District.

Allen disagreed with Schwartz’s interpretation of the law and told her via email that the county made the online mail-in voter list available through the Department of State.

“As an authorized representative, you do not have access to go through the envelopes, which is consistent with the directive from the Department of State that you possess and presented to me in an earlier email.

“The following are among the reasons this request to go through the envelopes at this time is being denied: As Mr. Agovino noted, we are extremely busy and have various tasks to complete as part of the canvass leading up to the certification on Thursday. We do not have the staff to sit one-on-one with you or any other individuals who want to participate.”

Also, “we have one pending recount, and we have other matters that may result in recounts, and we cannot disturb the election materials prior to the completion of (1) the canvass and certification and (2) any necessary recounts. That would be patently unfair to the candidates and would violate basic standards that those campaigns should expect for chain of custody prior to the certification. The deadline was May 12 to file objections to any absentee or mail-in ballots. The review of the physical envelopes serves no legally required function at this time and is not part of the section of Act 77 that you clearly misquoted,” Allen said.

Allen told Schwartz that she could look at the envelopes after the election was certified.

“So, this is their modus operandi, to operate in the dark and to keep people out,” said Schwartz. “It’s got to be challenged.”

Asked to respond, a county spokeswoman said, “The county continues to comply with all requirements of state law. The candidate is misinterpreting the relevant sections of Act 77 and the Election Code.”