Ephrata Township resident and former Pennsylvania Senate candidate Mike Miller is suing the County of Lancaster in two separate lawsuits filed last week in the Lancaster County Court of Common Pleas in his effort to review mail-in ballots from the May primary election.
The first lawsuit filed Dec. 29 challenges procedures laid out by Lancaster County Solicitor Jaquelyn Pfursich in an Oct. 5 letter regarding the review of mail-in ballots. Miller is petitioning the court to enforce a determination by the Pennsylvania Office of Open Records to allow the inspection of mail-in ballots.
“The OOR has no power to enforce its own determinations,” the lawsuit said. “Mike has no other remedy at law by which to secure the records.”
The OOR ruled on Oct. 5 regarding a request submitted in June by Miller seeking access to inspect Lancaster County’s mail-in ballots and their accompanying envelopes from the 2022 primary election, finding that he has a right to inspect them.
Miller challenged state Sen. Ryan Aument in the Republican primary in the 36th Senate District, losing to the incumbent who received around 60% of the vote.
The county was required to provide the ballots and unredacted envelopes within 30 days.
County officials responded in July to Miller’s original request, denying him access to view the ballots but allowing him to view the envelopes with redacted signatures.
Miller appealed the decision to the state, leading to the OOR’s Oct. 5 ruling that the requested ballots and envelopes are public under Act 77, the state law governing mail-in ballots and other election laws signed by Gov. Tom Wolf in 2019.
Pfursich’s letter, which was sent out the same day as the OOR decision, cites regulations in Pennsylvania Election Code 25 P.S. § 2648 regarding “proper regulation for safekeeping” of ballots and includes seven points that the county “will require compliance” from Miller.
The procedures included that only one person at a time can inspect ballots. The county also stipulated that any requests to inspect the ballots must be scheduled in advance by contacting Christa Miller, the chief clerk of elections for the county, and appointments of “up to 2-hour duration” will be scheduled when staff can be present to monitor the inspection process.
An inspector will only be given one batch of records at a time “in order to preserve their organizational integrity,” the county said, and no writing implements will be permitted near the records. The ballots must be inspected on one side of the room, the letter said, and notes must be taken on the opposite side of the room.
The final requirements included no photography or video of ballots or the review process, and the county “reserves the right to have a Sheriff’s deputy or its designee present.”
Miller immediately sent a records request to verify the origins of the terms of review stipulated by Pfursich in her letter. He said Pfursich’s terms are not named in the OOR determination.
“No officer of the county has the authority to impose terms on Mike,” the lawsuit states. “No officer of the county has standing in this matter.”
Miller’s lawsuit highlights questions from The Lancaster Patriot at the Oct. 12 Lancaster County Board of Elections meeting in which county officials were asked where the ballot review procedures required by Pfursich came from and if they were existing county policy.
At the meeting, Pfursich said some of the requirements come from existing case law, including having a staff member present at the inspection and no writing implements so that ballots can’t be marked.
When asked if the current election code provides for the copying of ballots if time allows, Pfursich said the code is not clear and is up for interpretation.
“In this particular situation, having copies of ballots, we believe, is not permitted,” Pfursich said at the meeting. “Now, if there is a court that at some point will say that we can or should be copying ballots, then we will certainly do that. But that’s our interpretation at this point.”
The questions asked from The Lancaster Patriot are omitted from the posted meeting notes of the Oct. 12 Board of Elections meeting. Other comments from the public are included in the meeting notes.
Miller makes several demands for judgment in the lawsuit, including for the court to “provide declaratory judgment with respect to the rights of the parties to this action,” for the county “to avail all the records to Mike for inspection and copying” and for the county to “avail its high-speed scanner for the purpose of making digital copies for Mike, in Mike’s presence.”
In a second lawsuit filed Dec. 29 against the County of Lancaster, Miller is challenging a separate final determination by the OOR regarding a review of scanned images of all mail-in ballots created for the primary election. The determination found that the county does not possess scanned copies of the ballots.
Miller argued that the scanned mail-in ballot records do exist and that election officials provided false information to the OOR, tainting the determination. Miller is seeking to “quash all items in the final determination found to be in error,” to “grant discovery to determine facts, as justified” and to “order the agency to provide the requested records.”
“Elections belong to the people, as do the records,” Miller said in the lawsuit. “Since the tainted May 17, 2022 election, agency persons have intended to deny Mike’s access to the records of this event.”