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Pennsylvania ACLU and Lancaster County commissioners fight over ballot drop box removal in court

Lancaster County removed its ballot drop box after an April 13 Board of Elections meeting.

  • Sam Dunklau
A voter cast her mail-in ballot at in a drop box in West Chester, Pa., prior to the primary election, Thursday, May 28, 2020.

Matt Rourke / Associated Press

A voter cast her mail-in ballot at in a drop box in West Chester, Pa., prior to the primary election, Thursday, May 28, 2020.

*This story has been updated*

(Lancaster) — A Lancaster County judge granted the ACLU’s request and ordered the county to temporarily reinstate its only drop box. Whether it will be available on Primary Day, May 17, is in question.

In an eleven-page decision, Lancaster County Court of Common Pleas Judge Leonard G. Brown, III wrote the board of commissioners should have given the public more official notice about any plan to remove the box.

They argued doing so would have created a “chilling effect” on public meeting participation, but Brown said he did not find that “persuasive.”

“To the contrary, requiring advance notice from the Board before it makes important policy decisions will only increase democratic debate and hold the government agencies accountable to the rule of law,” Brown wrote.

The ACLU also asked the judge to require the county to keep its government center lobby open past normal business hours. The Elections Board had done that in the past to help more voters access the drop box inside.

Brown denied that request because commissioners didn’t discuss that issue at the mid-April meeting.

Lancaster County commissioners plan to meet Monday to once again vote on removing the drop box, a measure which is expected to pass. Republican Commissioner Ray D’Agostino said in the meantime, the box is available for voters on Friday, Saturday and for a time on Monday. The meeting is scheduled for 11 a.m.

*The original story is below*

(Harrisburg) – Lancaster County is among the places in Pennsylvania that is not offering primary voters a ballot drop box. Its decision has drawn a lawsuit from the state’s American Civil Liberties Union chapter.

Since 2020, Lancaster County voters have been able to drop off their mail-in ballot ahead of elections at a single drop box at its county government center. But after an April 13 Board of Elections meeting, county commissioners chose to take away that box – without holding a vote. 

After commissioners and public participants traded arguments on the issue for over an hour, Republican Commissioner and Chairman Ray D’Agostino informally polled the three commissioners.

“The consensus is, I’m not in favor of having a drop box,” he said before turning to fellow GOP commissioner Josh Parsons, who agreed with D’Agostino, then to Democratic commissioner John Trescot, who opposed the box’s removal.

When a member of the public protested, arguing consensus had not been reached, Parsons clapped back.

“Yes it is,” he said. “It’s a consensus of two to one. That’s how the Board works.”  

The ACLU of Pennsylvania alleges in a court filing that the decision broke Pennsylvania’s Sunshine Act, which governs public meetings. Part of that law says the public needs to know what will be on the agenda for all meetings at least a day in advance. 

Though discussion of the drop box emerged during a public comment period, the meeting agenda doesn’t list that as official business.  

“Any action they took without following those rules is void and voidable,” ACLU of Pa. Legal Director Vic Walczak said. “So we are asking that the court void the decision not to put out the drop box.” 

The Lancaster County Government Center is seen on April 19, 2020.

Kate Landis / PA Post

The Lancaster County Government Center is seen on April 19, 2020.

Parsons and D’Agostino both pointed to a Commonwealth Court ruling against Act 77, a 2019 state law that authorized no-excuse mail-in voting, and a “lack of internal controls” in arguing for the removal of Lancaster County’s drop box. 

That’s despite the Pennsylvania Supreme Court affirming counties could set up the devices in a September 2020 ruling. A federal judge appointed by former President Donald Trump later upheld that decision when it was challenged, writing that drop boxes “do not significantly burden any right to vote…they align with the Commonwealth’s elaborate election-security measures. They do not run afoul of the United States Constitution.” 

An appeal of the Commonwealth Court’s Act 77 ruling to the state Supreme Court earlier this year put that decision on ice.

“It is a minor change,” Parson said at the April meeting, referring to the drop box removal decision. “You still have the option to come in early, vote early. You can pick up your ballot, you can fill it out anywhere you want, turn it into the Elections Office. You can still have the option to put it in the mail.”

Walczak said turning in a mail-in ballot at a county election office has an important downside: business hours when ballots are accepted are usually limited. Lancaster had extended its government center lobby hours to allow voters to drop their ballot off in the box as late as 8 p.m. on weeknights and between 9 a.m. and 2 p.m. on Saturday.

“They [voters] may want to drop it off in the evening after work, they may want to do it early before they go to work, or they may want to do it on a weekend,” Walczak said.

D’Agostino calls the ACLU’s lawsuit “frivolous,” and said commissioners repeatedly talked about whether to offer a drop box at public meetings. He said during last month’s meeting that the county’s decision to remove the drop box was “administrative” and did not require public notice.

“Our efforts will continue to be focused on doing everything we can within the law to ensure Lancaster County has secure and fair elections. This frivolous suit should be immediately dismissed,” D’Agostino said in a statement.

ACLU of Pa. spokesperson Andy Hoover said a Lancaster Common Pleas court judge is scheduled to hold a hearing in the case on Thursday. The group is asking that court to rule quickly, since the primary ends in less than a week.

Lancaster, Westmoreland and York counties all either scaled back or eliminated the use of drop boxes for the primary. Lehigh County District Attorney Jim Martin has said law enforcement officers will monitor drop boxes there in an effort to make sure voters are only dropping off their own ballot. 

Martin and others have suggested voters who were caught on camera last fall dropping off multiple ballots in Lehigh County purposely did so to commit election fraud, but there is no evidence affirming that. Martin himself said in a public memo that most of those voters only dropped off two ballots and were probably submitting them for a partner or family member.

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