SCRANTON – When it comes to litigation from two voters who alleged they were denied an opportunity to cast their votes in last November’s General Election on multiple occasions because the county had inexplicably run out of ballots, Luzerne County has countered that the plaintiffs have failed to plead their claims.
William French and Melynda Anne Reese first filed suit in the U.S. District Court for the Middle District of Pennsylvania on March 28 versus Luzerne County, the Luzerne County Board of Elections and Registration and the Luzerne County Bureau of Elections
“On the morning of Nov. 8, 2022 (Election Day), French went to his local polling place at the Freeland Ambulance Association, 417 Johnson Street, Freeland, PA 18224 to cast his vote in person. But, upon arrival at his polling place, election officials and workers employed by the defendants told French he could not vote because the polling place did not have ballots on which he could cast a vote. Election officials and poll workers employed by the defendants told French he was to come back later in the day to attempt to vote,” the suit said.
“As instructed, French returned to the same polling place at approximately 3:30 p.m. on Election Day. But, again, election officials and workers told French he could not vote, because there were still no ballots available. Election officials and workers told French to come back again later to attempt to vote. However, French’s disability left him unable to return yet again to attempt to exercise his right to vote. French’s leg is destroyed and has been subjected to at least 17 surgeries. He uses a cane to help him walk. The sidewalks leading from French’s home to his polling place are deteriorated and destroyed. Walking at night on these sidewalks created a risk of a fall and injury. So, French was not able to return to the polls to attempt to vote a third time.”
The suit added that Reese, employed as a corrections officer, is also the primary caregiver for her husband, who, as of Nov. 8, 2022, had recently suffered two cardiac arrests and a stroke. Due to his condition, Reese is not able to leave the house for extended periods of time when her husband will be unattended.
“On the morning of Nov. 8, 2022, Reese went to her polling place located at 248 State Route 4012, Shickshinny, Pennsylvania 18655 with her husband. Upon arrival, election officials and workers informed Reese that only her husband could vote, because the polling location had only a limited number of ballots remaining and that Reese would have to return later in the day to cast her vote. At 4 p.m., Reese returned to vote. When she returned, she was told there was still a waiting time. But her husband’s physical condition made him unable to wait in the line for a long period of time,” the suit stated.
“Reese again returned with her husband to cast her vote later in the day, at approximately 6:30 p.m. Once again, however, Reese saw the length of the line was so long that she would not be able to wait with her husband for that long to vote. On Nov. 8, 2022, at approximately 9:15 p.m., an election official employed by defendants called Reese and told her that ballots were finally available, and she could come to her polling place to vote. But Reese’s husband had already taken his sleeping medication, and it was impossible to leave the home with him at this time to attempt to vote a fourth time.”
The suit charges the defendants with violating not just the plaintiffs’ constitutional rights but also Pennsylvania Election Code, by not stocking enough backup paper ballots for voters to utilize.
On April 29, the plaintiffs requested entry of default after no response from the defendants – but subsequently, defense counsel entered their appearances on May 1 and the following day, concurrently filed a motion for enlargement of time to respond to the complaint and opposition to any entering of default judgment, plus a separate motion to dismiss the complaint.
UPDATE
“Defendants were served with the complaint on or about April 5, 2023. After being served, defendants forwarded the complaint to their insurance carrier and began the process of securing defense counsel. The insurance carrier then had to approve and select defense counsel. On Friday, April 21, 2023, undersigned counsel and the law firm of Elliott Greenleaf & Dean, P.C., were approved to serve as litigation counsel for all defendants. Initially, undersigned counsel were mistakenly informed by the County – not Bureau staff – that defendants were served with the complaint on or about April 15, 2023 not April 5, 2023. Accordingly, a responsive pleading deadline was calendared beyond the correct deadline of on or about Wednesday, April 26, 2023,” the motion for enlargement of time stated.
“Plaintiffs filed a motion for default judgment against defendants on Saturday, April 29, 2023. Default judgment has not yet been entered. Defendants request a brief enlargement of time to respond to plaintiffs’ complaint and treat their Rule 12(b)(6) motion as timely filed. On May 1st and 2nd, undersigned counsel informed counsel for plaintiff of the circumstances – recited herein – herein explaining defendants’ failure to file a responsive pleading by April 26th and sought concurrence in the motion for enlargement of time and requested withdrawal of the motion for default judgment to proceed with litigation on the merits of the case. Plaintiffs’ counsel does not concur in the motion. Plaintiffs will not be prejudiced by granting an enlargement of time and treating defendants’ 12(b)(6) motion as timely filed because this case was initiated approximately 30 days ago, the deadline to file a responsive pleading expired less than a week ago, and defendants timely cured the issue and filed a responsive pleading simultaneously with this motion.”
U.S. District Court for the Middle District of Pennsylvania Judge Malachy E. Mannion approved the enlargement of time motion on May 3.
In a May 5 follow-up letter, plaintiff counsel Walter Zimolong contested defense counsel’s interpretation of his supposed “not concurring” in the enlargement of time motion, instead stating that opposing counsel filed the motion in question without first giving him an opportunity to confer with his clients and respond accordingly.
In the accompanying dismissal motion, the defense argued that the plaintiffs failed to state claims upon which relief could be granted.
“Plaintiffs’ First and Fourteenth Amendment claim that inadequate supplies denied them the right to vote, alleged in Count I of plaintiffs’ complaint, fails to state a claim upon which relief can be granted against the defendants. Plaintiffs’ claim that defendants’ alleged failure to train election staff violated the First and Fourteenth Amendments, alleged in Count II of plaintiffs’ complaint, fails to state a claim upon which relief can by granted against the defendants,” the dismissal motion said.
“Plaintiffs’ Fourteenth Amendment claim alleging an equal protection violation, Count III of plaintiffs’ complaint, fails to state a claim upon which relief can be granted against the defendants. Plaintiffs’ Fourteenth Amendment claim alleging procedural due process violations, Court IV of plaintiffs’ complaint, fails to state a claim upon which relief can be granted against the defendants.”
Lawyers Democracy Fund Labels County's Actions “Catastrophic Failures”
Lisa Dixon, executive director of the Lawyers Democracy Fund, a nonprofit group which helps to safeguard the rights of eligible voters, referred to the county’s actions as “catastrophic failures.”
“Nearly every election has an example of voters facing challenges through government mishaps, such as the ballot printer setting errors that caused chaos and unnecessary hurdles to voting in person in Maricopa County, Arizona, in 2022. Usually these problems are isolated and are able to be resolved so that voters can actually vote. What is particularly unique and egregious about Luzerne County's failure to provide sufficient ballots for its citizens to vote is how the county failed to follow the clear requirements of Pennsylvania law regarding the minimum number of ballots each precinct must have, how widespread it was – affecting over 40 precincts – and how some voters were actually unable to vote because of how long it took the county to have a supply of ballots at the polling places,” Dixon said.
Dixon added that the issues facing Luzerne County voters date back at least three years.
“The repeated, systemic problems in Luzerne County started around 2020. Prior to 2020, Luzerne County had more experienced staff running its elections and had run-of-the-mill election problems, such as machine issues and long lines at certain precincts. Since 2020, there has been high turnover in county staff, which has likely contributed to the serious problems in the past few years, culminating in the catastrophic failures and disenfranchisement in the 2022 general election. But high staff turnover is no excuse for failing to follow the law and disenfranchising voters. If something is not done, we can be certain of more problems in the 2023 and 2024 elections, and the citizens of Luzerne County will live in fear of being disenfranchised, a fear no eligible voter should ever face,” Dixon stated.
Dixon remarked that the county both “owes its voters an explanation and apology for the catastrophic failures that deprived an unknown number of Luzerne County citizens of their constitutional right to vote” and “needs to assure its citizens that this will never happen again, by putting procedures in place to ensure it follows Pennsylvania law in the future.”
“The catastrophic election administration failures in Luzerne County in 2022 demonstrate that sadly, voter suppression still happens in America. But when it happens, it comes from government incompetence or malfeasance, not from laws and procedures that seek to protect the integrity and security of the election. Strong election laws and procedures protect voters’ rights, and failure to have good laws or follow them is when voters’ rights are threatened,” Dixon said.
For counts of violating the First and Fourteenth Amendments (right-to-vote/inadequate supplies, failure to train, equal protection and procedural due process), the plaintiffs are seeking the following reliefs:
• A declaratory judgment that the defendants violated plaintiffs’ First and Fourteenth Amendment rights in the 2022 General Election;
• A declaratory judgment that defendants’ administration of elections in Luzerne County violates the First and Fourteenth Amendments;
• An injunction that prevents defendants from denying or severely burdening plaintiffs’ constitutionally protected right to vote;
• An injunction compelling the defendants to, before the next general election:
1) Promulgate, adopt and enforce uniform standards and processes to ensure that every election district is adequately supplied and equipped with a number of ballots as required under the Pennsylvania Election Code, emergency ballots, provisional ballots, and functioning voting machines;
2) Promulgate, adopt and enforce uniform standards and processes to ensure that every registered and qualified voter in an election district is able to vote without unreasonable delay or hardship on Election Day;
3) Promulgate, adopt and enforce a uniform and comprehensive program to recruit and train employees, including election officials and election day workers (poll workers) before each election to ensure that the election is properly staffed and administered and conducted according to federal and state law; and
4) Promulgate, adopt and enforce a uniform and comprehensive program to ensure elections in Luzerne County are free, fair and equal;
• Nominal damages;
• Costs and attorneys’ fees under 42 U.S.C. Section 1988; and
• All other relief that the Court deems just, proper or equitable.
The plaintiffs are represented by James J. Fitzpatrick III and Walter S. Zimolong III of Zimolong, LLC, in Villanova.
The defendants are represented by Drew P. McLaughlin, Keighlyn Jane Oliver and Kristyn Giarratano Jeckell of Elliott Greenleaf, in Wilkes-Barre.
U.S. District Court for the Middle District of Pennsylvania case 3:23-cv-00538
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com