A successful challenge by Ephrata Township resident and former Pennsylvania Senate candidate Mike Miller regarding the inspection of mail-in ballots in Lancaster County has the potential to impact similar requests around the state.
But Lancaster County officials are still looking to place restrictions on the ballot review process for Miller, who ran unsuccessfully against Sen. Ryan Aument in the Republican primary in the 36th Senate District.
The Pennsylvania Office of Open Records (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. The county must 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.
The OOR sided with the county on one issue regarding the mail-in ballots, agreeing that the inspection will not include mail-in ballots or envelopes from active-duty service members because they are not public under Act 77 because of “military security.”
Miller said he was “pleased” with the Office of Open Records decision, but that the language in the response made it seem like the state was “trying just about everything they could to say ‘no,’ but they couldn’t.”
“There’s a parent-child attitude everywhere in this country that is just so oppressive of people’s rights,” Miller said. “It just sickens me…You can see how difficult it is to wrangle anything out of them. I feel like, ‘Why couldn’t I get this stuff from the beginning?’”
County Response
According to the OOR’s decision, the county has until Nov. 4 to decide whether to appeal the case in the Lancaster County Court of Common Pleas.
But on the same day he received the OOR decision, Miller received another letter from Lancaster County Solicitor Jaquelyn Pfursich regarding the procedure the county is requiring him to follow to review the ballots.
Pfursich’s letter 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 first point cited is, “One person shall inspect at a time. No groups.”
The county is also stipulating 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.
“Records must be inspected on one side of the room, and notes must be taken on the opposite side of the room,” Pfursich’s letter said.
No photography or video of ballots or the review process is being permitted, and the county “reserves the right to have a Sheriff’s deputy or its designee present.”
“As you can surely understand, this is a fluid process that may require adjustments to the above rules and requirements, to the extent necessary to ensure order, and to preserve the County’s records and their organizational integrity,” Pfursich said in her letter. “If any such adjustments need to be made, we expect you will work with the County in a professional and courteous manner.”
Miller said he found it interesting that the county had a letter with the ballot review process ready to send to him on the same day of the OOR’s decision. He said he was also dismayed by the tone of the county’s letter and the stipulations being placed on him.
“The letter is in no way apologetic of the delay or accommodating whatsoever,” Miller said. “It’s simply, ‘Okay, let us tell you our new terms.’”
Act 77 and Pennsylvania election law does not provide a process for ballot review other than it “shall only be in the presence of a member or authorized employee of the county board, and shall be subject to proper regulation for safekeeping of the records and documents, and subject to the further provisions of this act.”
The law also states that mail-in ballots “may be inspected and copied by any qualified elector of the county during ordinary business hours, at any time when they are not necessarily being used by the board, or its employees having duties to perform thereto.”
Miller said he already sent a response to the county regarding the letter, asking them what law they relied upon to make the conditions for the ballot review process. Miller also requested to see any meeting minutes and motions by county officials that were made to pass the review policy.
Miller also requested to see “what contract the county has with me that I need to obey your policies related to public records requests” and that he hopes the policy is “not discriminatory.”
“Do you do this to everybody that request public records or just me?” Miller asked.
Miller said he plans on continuing to challenge the county on the review process and to “assert my rights to go in there and inspect.” He said he plans on recording, photographing and videotaping the review process and the ballots and that “there’s no lawful basis for you to stop me from doing that.”
“I’m going to test whether we actually have a functioning constitution, or whether we just have an idea that doesn’t really exist anymore,” Miller said. “It needs to be tested.”
Staff writer Michael Yoder is an award-winning journalist who has been honored with several Keystone Press Awards for his investigative pieces.
