Aug 23, 2022 4 min read

Fayette County officials are weighing their “options” after the state Commonwealth Court ordered them and two other renegade counties in Pennsylvania to begin counting stacks of undated mail-in and absentee ballots from the May primary election.

Judge Renee Cohn Jubelirer ruled Friday that Fayette, Berks and Lancaster counties must canvass any mail-in ballots that were received on time but did not include a hand-written date on the outer envelope in order to allow the state Department of State to certify the primary election results.

In her order, Cohn Jubelirer required the counties to submit their final certified vote totals no later than Wednesday, but asked them to begin counting as quickly as possible.

While the Fayette County Elections Bureau posted on its website that the 52 undated ballots will be canvassed in the office at 10 a.m. Wednesday, it was unclear whether officials would follow through with that count or pursue other legal avenues.

Fayette County Commissioner Scott Dunn said officials were “examining our options” following the order, but declined further comment on the situation. He did not elaborate on what, if any, options the elections board has, other than counting and certifying the mail-in ballots in question by Wednesday.

County Commission Chairman Dave Lohr and Uniontown attorney Mark Mehalov, who are members of the county elections board along with Dunn, did not respond to phone messages seeking comment. Elections Bureau Director MaryBeth Kuznik declined to comment and referred questions to the elections board, but noted the message on her office’s website about canvassing those votes Wednesday morning.

Dunn said in an interview last month that the county officials were “tired of everything changing” regarding how Act 77 of 2019, which was passed with bipartisan support that expanded mail-in balloting and made other elections-related changes, was being interpreted by state and federal courts.

Lohr said at the time that the Thomas Moore Society, a Chicago-based not-for-profit that describes itself as a national public interest law firm focusing on religious liberties and election integrity, was funding the lawsuit on behalf of the county. It was not known if attorneys for the Thomas Moore Society planned to continue challenging the mail-in ballots.

The state sued the three counties in July over their refusals to count the ballots after receiving incomplete certified vote totals from them. Cohn Jubelirer wrote in her opinion that the lack of a hand-written date on the outside envelope of a mail-in or absentee ballot that was received on time cannot be excluded from the count.

“(The Department of State has) a clear right to relief, as this Court has declared that under Pennsylvania and federal law, the (county elections) Boards may not refuse to include in their certified results submitted to the Secretary (of State) for her certification the timely received absentee and mail-in ballots of qualified Pennsylvania electors, that are otherwise unchallenged, on the basis that the electors did not date the declaration on the return envelope,” Cohn Jubelirer wrote in her order. “Further, the injury involved is disenfranchising qualified Pennsylvania electors, which cannot be compensated by damages. Disenfranchising these electors results in a greater injury than denying the requested relief.”

There were only 52 such ballots in question in Fayette County – 46 from Democrats and six that were from Republican voters – but the certified counts submitted to state elections were essentially incomplete. Those mail-in votes were segregated and kept in safe storage by county elections officials while awaiting the ruling about what to do with them.

“The right to vote in a free and fair election is essential in a representative democracy,” Cohn Jubelirer wrote in her order. “The court recognizes the tireless and dedicated efforts of the boards, as well as all county boards, and their employees, in the critical work of administering elections.”