York County begins investigation of troubled primary election, excludes public

Matt Enright
York Dispatch
Advent Lutheran Church during the primary election in Springettsbury Township, Tuesday, May 18, 2021. Dawn J. Sagert photo

York County officials last week began a promised investigation of May’s troubled primary election — but the public wasn’t invited to participate or even notified of the first meeting.

That could be a problem, because all three county commissioners participated in the Friday gathering. The presence of more than one member of the three-member county board would constitute a quorum and could trigger the state's open meeting law.

York County received complaints that some polling places ran out of Republican ballots during the May 18 primary election, prompting calls for the removal of county elections director Steve Ulrich.

More:As York County officials investigate primary woes, Republicans renew calls for elections director's removal

More:'This can never happen again': York County commissioners get earful over election

More:'You should be pretty worried': Fixing York County's election system before 2020 votes

More:York County backpedals, opens election confab

President of the York County Board of Elections Julie Wheeler poses with scanned mail-in ballots stored in a room at the York County Administration Center Friday, Oct. 30, 2020. The room is equipped with a fire suppression system. Bill Kalina photo

During the public comment period at the June 2 commissioners meeting, a mayor and state constable both criticized the May 18 primary election.

"This needs to be investigated. This can never happen again in York County. We can't ever let this happen again in York County," said John Dentler, a state constable who was working at a Washington Township polling place on Election Day.

President Commissioner Julie Wheeler told the crowd at that meeting that there would be an investigation after the certification of the vote tally on June 7.

"Once that is completed, we will be doing a very deep dive on the details on what happened on Election Day," she said on June 2. "We'll all go on record to say that it is unacceptable and cannot happen again."

The first phase of that investigation began Friday afternoon during a meeting with members of the county's leadership team, including all three commissioners — Wheeler, Doug Hoke and Ron Smith, according to Hoke.

The makeup of that meeting raises concerns about transparency, according to Pennsylvania NewsMedia Association legal counsel Melissa Melewsky.

The Sunshine Act states that "any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action" is required to be a public meeting. 

York County Board of Elections director Steve Ulrich says that 77% of registered county voters took part in the 2020 election, Wednesday, November 18, 2020
John A. Pavoncello photo

A deliberation is defined as "the discussion of agency business held for the purpose of making a decision."

Wheeler said the meeting was informational only, with no deliberations involved. 

"We had an initial meeting with the elections department to dig into some of the details on what drove the issues in the primary election," she said Monday. "It was the first meeting to discuss what went wrong, what were the causes that drove that and talked a little bit about how do we mitigate those so it doesn't happen in the future." 

Melewsky acknowledged that the Sunshine Act does not apply if the meeting in question was not deliberative, but there could still be problems.

"We don’t know whether deliberation took place, and unless someone at the meeting is willing to talk, there’s no way to know. That’s a problem from a transparency and public policy perspective, even if it’s not a Sunshine Act violation," she said in an email. "Agencies must closely follow both the letter and intent of the Sunshine Act to promote public involvement and increase public trust in the system as well as public officials and the decisions they make. Anything less harms the agency and the public it serves."

Wheeler noted that the participants in Friday’s meeting “talked a little bit” about how to avoid similar election problems.

On June 7, she said: "We're going to dig into the formula used to calculate the Election Day ballots, which polls ran out of ballots, whether they were more Republican or Democrat. So really doing a deep dive into the data so that we can figure out the root causes and then fix them so they don't happen again." 

When asked via text to explain in more detail why the meeting was not deliberative and should not have been public, she described the Friday gathering as a “routine departmental meeting.”

This isn't the first time York County has attempted to have a closed meeting on a troubled election. 

After the 2019 general election, results were delayed because of a shortage of ballot-counting scanners and technical glitches. The problems included long lines, incorrect paper ballot sizes and many voters not knowing how to use new machines. That election prompted the resignation of former elections director Nikki Suchanic.

In the aftermath, the county attempted to hold a closed meeting with elections workers, state lawmakers and Dominion Voting Systems, which manufactured the county’s then-new voting machines. At that time, county spokesperson Mark Walters described it as an information gathering meeting that did not constitute a violation of the open meetings law. 

Within hours, however, the county changed course and opened the meeting to the public.

Melewsky, the legal counsel for the Pennsylvania NewsMedia Association, said a meeting is not exempt from the Sunshine Act just because no action is taken.

"The fact that there was no official action (votes) is not relevant since the Sunshine Act requires public meetings whenever a quorum deliberates agency business, not just when official action takes place," she said. "It is important to remember that deliberation is broadly defined as 'the discussion of agency business held for the purpose of making a decision.' 

"This definition and the general rule presumes that most discussions of agency business trigger the act and require public meetings, so agencies need to be very careful about claiming 'no deliberation' or 'information gathering.'"

Also, Melewsky said, even county officials weren't required to open Friday's meeting, that does not mean they could not have done so.

"The Sunshine Act sets the floor for public access to meetings, not the ceiling," she noted. "If they were, in fact, only gathering information and not deliberating, they could certainly have done so at a public meeting, they apparently chose not to, and in light of the importance of election transparency, that’s a potentially problematic decision."

Wheeler said Friday’s meeting involved going through data from the 161 polling locations York County has. They're still in the early stages of the investigation, and Wheeler said she expects the investigation to take a few more weeks. That's going to include more informational meetings held between members of the elections department and the Board of Commissioners.

Among the data points Wheeler said the meeting examined were the calculations that determined how many ballots were sent to polling locations and which locations did or did not run out. That also includes how the county could have reacted better when they realized there was an issue with lack of ballots.

While every election has a postmortem look at what went right and wrong, Wheeler said this review obviously is more intense because of the controversy of running out of ballots. For example, during the 2020 primary, the county lacked a database of poll workers and volunteers. That was formed between that primary and the 2020 general election.

Wheeler said that at the end of the process, the county was committed to sharing with the public the results of the investigation.

Hoke on Wednesday agreed with Wheeler that the meeting had been entirely informational, with no decisions made.

"Just to have the facts presented from the elections management staff about what happened, talked about different precincts and stuff like that," he said. 

Hoke said they'll discuss what role the public should have in the process.

"Those decisions haven't been made yet. When I met there, it was strictly a debrief on what happened on primary election day, the ballots not being sufficient in several areas, and we'll make those decisions in the future." 

The elections office, he said, was in the process of putting together more information to review.

"Once we review it, I'm sure we'll get back together and make some decisions on dispersing it or fine-tuning it or publicizing it or getting comments, whatever those of us on the Board of Commissioners decide to do." 

Attempts to reach Ulrich, the county elections director, were unsuccessful.