SCRANTON – In response 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 believes the plaintiffs have not adequately pled 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
The parties then traded response briefs over that same dismissal motion, with Luzerne County’s coming first on May 16.
“Plaintiffs allege that defendants violated several provisions of the Pennsylvania Election Code during the Nov. 8, 2022 general election. However, even if true, violations of state election law ‘do not give rise to federal constitutional claims except in unusual circumstances. Furthermore, defendants have not adopted a policy or custom that dilutes votes, results in the arbitrary or capricious treatment of similarly-situated voters or maintained an unequal system of voting that lacks uniform standards and processes. As demonstrated on Nov. 8, 2022, the paper shortage affected the entire County. Moreover, the County – and the two major political parties – petitioned the Luzerne County Court of Common Pleas to extend voting hours until 10 p.m. in all Luzerne County voting precincts, not just a select few,” according to the County’s brief supporting dismissal, in part.
“Most importantly, plaintiffs fail to acknowledge that they were not the only two voters within their respective polling precincts and as such, all eligible voters within those precincts would have been equally affected by the paper shortages, not solely plaintiffs. Indeed, Ms. Reese states that long lines of voters kept her from voting at 4 p.m. and 6:30 p.m. Accepting as true the allegations of the complaint for purposes of the present motion, it is regrettable that plaintiffs did not vote in the Nov. 8, 2022 election; however, as the complaint details, there were other factors at play in this outcome, including long lines at polling precincts, personal health and well-being and obligations to an ailing spouse. None of these factual allegations excuse the avoidable and unnecessary paper shortage that disrupted the November 8 election, although it does undermine plaintiffs’ claims for constitutional relief.”
Meanwhile, plaintiff counsel responded with their own brief opposing dismissal of the suit on June 13.
“On Election Day in 2022, the ability to vote in Luzerne County was dependent on where one lived and voters in different locations were subjected to disparate treatment. There were over 170 polling locations in Luzerne County in the 2022 general election. The ballot shortage impacted approximately 40 of those polling locations, including those where plaintiffs vote. Meanwhile, the remaining polling locations were unaffected and had enough ballots. Plaintiffs lived in one of the approximately 40 areas with polling locations that did not have enough ballots on Election Day. If the voter lived in an area with a polling location with enough ballots, unlike the plaintiffs, the voter was not turned away multiple times and asked to return later. So, whether a voter was impacted by the ballot shortage was entirely dependent on where the voter lived and varied from precinct to precinct,” per the plaintiffs’ response brief, also in part.
“Voters in precincts without enough ballots faced disparate treatment compared to voters in locations that had enough ballots. Moreover, voters who lived in polling locations that had enough ballots had greater voting strength than those that lived in polling locations that lacked sufficient ballots. The former could cast their vote with little to no burden. The latter, including plaintiffs, were told they could not vote and were told to return to the ballot box multiple times. Furthermore, whether a location had ballots or did not appears – at the moment – to be entirely arbitrary. Defendants offer no explanation as to why some polling locations had sufficient ballots and others did not. This arbitrary deployment of ballots to polling places also violates the Fourteenth Amendment.”
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