Dallas City News

Luzerne County Manager Romilda Crocamo informed county council Friday evening she will provide mail ballot drop boxes for the Nov. 5 general election.

Crocamo said she made the decision in response to Pennsylvania Attorney General Michelle A. Henry’s letter this week informing her the county election board has sole authority over the deployment of drop boxes under the state election code.

“Should you fail to comply with a lawful instruction or order, the Board of Elections could take action, including filing a civil mandamus action to compel performance,” Henry’s letter said.

There are also potential criminal consequences for failing to comply, Henry wrote.

Crocamo said Friday evening she “still has grave concerns about the drop boxes” but will comply with the board’s standing resolution requiring the four boxes with video camera recording as provided in the past.

The boxes were in the Wright Manor senior living facility in Mountain Top, Misericordia University’s Passan Hall in Dallas and two county-owned properties — the Broad Street Exchange in Hazleton and Penn Place Building in Wilkes-Barre.

It’s unclear if the Wright Manor box will be possible. County Chief Solicitor Harry W. Skene informed the election board Friday evening that the county information technology department reached out to Wright Manor to make technology arrangements and was informed the facility won’t be hosting a box as it did in the past. Skene said he was in the process of seeking official confirmation from the site owner, the county Housing Authority.

Skene said the county is no longer requiring the Wright Manor and Misericordia sites to sign “hold harmless” agreements accepting liability.

Crocamo’s decision could have an impact on pending litigation because it was filed attempting to force her to comply with the board’s directive to provide the boxes.

Legal challenge

In the pending litigation, Crocamo and the county Election Board filed legal briefs presenting opposing views Friday.

The briefs were required in advance of Monday’s hearing in the county Court of Common Pleas to consider an injunction request filed by the American Civil Liberties Union of Pennsylvania and local law firm Borland and Borland, which seeks immediate restoration of the four drop boxes.

Filed on behalf of three mail ballot voters and the nonprofit In This Together NEPA, the litigation asserts the county manager must comply with the election board’s directive to provide the boxes for the Nov. 5 general election, as in past elections.

Crocamo maintains she has authority to cancel the boxes due to safety and staffing concerns because she oversees county workers and property.

Election Board

A synopsis of the board’s Friday filing by Joseph M. Cosgrove, of Selingo Guagliardo LLC in Kingston:

It said county election boards are statutorily empowered with jurisdiction over the conduct of elections through state Election Code provisions.

The five-citizen election board here is “no less vested” with jurisdiction just because it was created through this county’s home rule charter, it said. Whether formed through standard or home rule structures, state legislators mandate boards contain bipartisan members and comply with open public meeting regulations, it said.

“The conduct of the manager presently is inconsistent with this statutory structure, and subverts the mechanism of accountability which the election code requires,” it said.

The county manager is “one person,” and her decision did not involve the same public discussion and voting of multiple and politically diverse members that occurs with the election board, it said. (The board currently has three Democrats and two Republicans.)

“The election code, by its nature and structure, prohibits such one-person rule with regard to the conduct of elections,” it said.

“The menace such a mechanism would create is self-evident. Sole decision-making power over the conduct of elections, which the manager has assumed, while perhaps based on sincerity, is devoid of the accountability the election code requires. For this reason alone, the manager’s drop box decision is a nullity.”

The filing cited ongoing concern about regular mail delivery delays and said a ballot is cast once it is deposited in a drop box because it is taken directly to the bureau.

“Neither the charter, nor the election code, nor the Pennsylvania Constitution provide any basis for the manager’s decision to forego the lawful decision of the board to employ drop boxes for the upcoming general election,” it said.

A board majority “exercised its wisdom,” over the dissent of some board members, to continue using drop boxes, it said, calling for reversal of the manager’s decision and affirmation of the board’s authority over the conduct of elections.

County manager

A summary of Crocamo’s response, filed by Mark E. Cedrone and Stephen J. Fleury Jr., of Saxton & Stump in Philadelphia:

It said Crocamo dispatched her duties at all times to protect county residents, the general public and county employees consistent with the county’s home rule charter and state election code.

She acted within her authority as county manager based upon legitimate and corroborated safety concerns and is bound by the charter, which cites a principal purpose of providing “for the health, safety and well being” of citizens.

The charter makes it clear the manager supervises and directs the administration, operation and internal organization of all bodies not specifically placed under the jurisdiction of any elective county official, the judiciary or office of court administration by the charter or applicable law.

Crocamo is vested with the executive power and day-to-day decision-making authority for the county and must plan, direct and control county employees, it said.

“Put another way, if Ms. Crocamo is unable to make the determination that an action of Luzerne County’s executive branch is unsafe to the public and/or to Luzerne County employees, then nobody can.”

Granting the motion would “strip” Crocamo of her charter-authorized executive authority, require her to ignore her mandates to supervise and direct employees and provide for the county’s safety and to “disregard multiple credible and corroborated public safety concerns and the absence of resources to address them,” it said.

Plaintiffs are not addressing “the straightforward reality” that the county election board does not have funding, manpower or capacity to implement its drop boxes.

While the board relies upon the executive branch headed by the manager to execute its decisions, it “does not have the authority to direct unreasonable and unaffordable action,” it said.

Suggestions have been made to use a portion of the county’s state Election Integrity Grant to fund drop-box related security enhancements, but those funds already have been earmarked for administering other aspects of the upcoming election, it said, noting the use of drop boxes is not mandatory for Pennsylvania counties.

The safety and security concerns were brought to Crocamo’s attention from various federal and state intelligence authorities, including the U.S. Department of Homeland Security, Office of Intelligence and Affairs, and the Cybersecurity and Infrastructure Security Agency, it said, citing confidential exhibits included with the filing.

There are six essential conditions that must be demonstrated to obtain a preliminary injunction, and the filing argues plaintiffs have failed to establish five of the six.

Regarding the disabled, it said they may choose a designated agent to handle their ballot for them.

In a related matter, the court rejected Crocamo’s motion seeking to postpone Monday’s court hearing until after the election board’s Wednesday night meeting. Her filing argued a drop box cancellation vote requested by Election Board member Rick Morelli, a Republican, could render the court filing moot.

The board’s three Democratic majority members have said they remain in support of keeping the drop boxes.

Reach Jennifer Learn-Andes at 570-991-6388 or on Twitter @TLJenLearnAndes.