Commonwealth Court rules in Erie Republican's favor on access to Pa. voters' mail ballots

Pennsylvania Commonwealth Court this week ruled that completed absentee and mail-in ballots are public records subject to the state's Right-to-Know Law.

The ruling Wednesday is a victory for Erie County Republican Committee member Michelle Previte, who on Aug. 1, 2022, requested electronic images of the nearly 49,000 mail-in ballots, including absentee ballots, cast in the 2020 presidential election in Erie County from the Erie County Board of Elections.

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In her ruling for the seven-judge panel that decided the case, Judge Ellen Ceisler wrote that although one section of the Pennsylvania Election Code exempts the contents of ballot boxes and voting machines from the election-related materials subject to the Right-to-Know law, another section establishes certain exceptions.

"These exceptions establish that completed absentee and mail-in ballots are to be treated as public records once those ballots have been removed from the ballot box or voting machine," Ceisler wrote, "and that those ballots can be obtained through an RTKL request as long as they follow the Election Code’s rules of disclosure and do not include any information that identifies (or is reasonably likely to facilitate the identification of) the individuals who cast those ballots."

Erie County Clerk Karen Chillcott on Thursday said she had not yet reviewed the ruling with the Board of Elections or its solicitor, Jay Stranahan.

The decision affirms an Oct. 20, 2022, determination by the Pennsylvania Office of Open Records, the agency that handles disputes over public records.

The Erie County Board of Elections appealed the agency's determination to Erie County Common Pleas Court. On June 30, 2023, Common Pleas Judge Erin Connelly Marucci reversed the Office of Open Records decision, citing the section of Election Code that exempts the contents of a ballot box or voting machine from public disclosure.

Connelly Marucci's decision was based on current Board of Elections procedures, which involve scanning all ballots ― in-person, absentee and mail-in ― into voting machines where digital images of those ballots are created and stored electronically. The images include the front and back of the ballot, as well as an audit mark page, and those pages cannot be separated.

Connelly Marucci also ruled that Previte had not provided any evidence that she was a qualified elector of the county and therefore was not entitled to the records under the Election Code. The Board of Elections challenged Previte's standing because she had not provided evidence of being an eligible voter at a previous hearing.

Commonwealth Court on Wednesday said the "argument (was) without merit" and noted there was nothing impeding the Board of Elections from questioning Previte's status given that it "has actual or constructive knowledgeof which registered voters reside within its domain."

In her original request, Previte also sought images of ballots cast in person at polling places and images of the outer envelopes of absentee and mail-in ballots. The Office of Open Records originally granted Previte's appeal on images of the outer envelopes, but Previte withdrew that request when it was appealed to Common Pleas Court.

On the other hand, the Office of Open Records denied her request for images of ballots cast in person. Previte did not appeal that decision. In March, Commonwealth Court ruled in Honey v. Lycoming County Office of Voter Services that images of ballots cast in person were not open to public disclosure.

In their concurring opinions Wednesday, Judges Patricia A. McCullough and Matthew S. Wolf wrote that the court was seemingly inconsistent in its rulings. Wolf said the court "treats in-person and mail/absentee ballots — and voters — differently, which may be problematic when a fundamental right like the elective franchise is implicated."

Previte, a mathematics professor at Penn State Behrend and an Erie resident, has filed several Right-to-Know requests with the county for election-related materials. The Board of Elections has denied some of her requests, which are now under appeal in Common Pleas Court, where she has represented herself.

In the ballot case decided Wednesday, Previte was represented by Dillon, McCandless, King, Coulter and Graham LLP, a Republican law firm based in Butler that has been involved in other high-profile election-related lawsuits involving former President Donald Trump's baseless claims of fraud.

Attorney Thomas Breth, who represented Previte in the Commonwealth Court appeal, said he was pleased with the court's decision, "but we think that all ballot images should be of public record. It doesn't make any sense that you would make mail-in and absentee ballot images public, but exclude in-person."

When Previte ran with a slate of five others for a spot on the Republican Party of Pennsylvania's state committee in 2022, a now-defunct campaign website said Previte "was shocked by the rampant lawlessness of the November 2020 election and took action, praying fervently for the restoration of our Republic and writing to all of the Pennsylvania Republican lawmakers to let them know her expectation that they do their ... duty and stop the certification of the PA election until a thorough investigation could be performed and all illegal votes cast out."

Previte did not return calls or an email for comment Thursday or by Friday afternoon.

Matthew Rink can be reached at [email protected] or on X at @ETNRink.

This article originally appeared on Erie Times-News: Court sides with Erie Republican, says PA mail ballots are public