DOJ announcement on Pennsylvania ballot investigation baffles election experts

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Election experts and lawyers are bewildered by a press release from the Department of Justice, in which the department said it had begun an inquiry into a handful of military ballots in a northeastern Pennsylvania county. Most unusually, the release revealed that the voters had cast their ballots for President Donald Trump.

On Thursday afternoon, the U.S. Attorney’s Office in the Middle District of Pennsylvania announced it had opened an inquiry into nine ballots that were found “discarded,” without elaborating on what exactly that meant. All nine ballots had been cast for Trump, the release said.

The Justice Department later issued an amended statement, saying that in fact seven had been cast for Trump and two had been resealed, meaning it could not be determined for whom the other ballots were cast. The press releases did not specify any particular crime or allege any wrongdoing, and said election officials were cooperating in learning what went wrong.

Election experts were bewildered at the few details included within the press releases and the unorthodox manner in which they were announced, and were troubled by the fact that the Justice Department said the ballots had been cast for the president.

“It is hard to express how illegitimate the press release is. That’s the problem,” Justin Levitt, a professor at Loyola Law School, said in an interview, noting that it wasn’t necessarily bad that the department was investigating.

“It is really improper for DOJ to be putting out a press release with partial facts,” Levitt continued. “And it is career-endingly improper to designate the candidate for whom the votes are cast. There is no federal statute on which the identity of the preferred candidate depends.”

The White House also knew in advance about the department’s announcement. “I can confirm for you that Trump ballots, ballots for the president, were found in Pennsylvania. And I believe you should be getting more information on that shortly,” White House Press Secretary Kayleigh McEnany said at her Thursday briefing — shortly before the first, errant Justice Department announcement.

Trump himself seemingly alluded to the same ballots in an interview earlier in the day with Fox News Radio’s Brian Kilmeade.

“These ballots are a horror show. They found six ballots in an office yesterday in a garbage can.They were Trump ballots — eight ballots in an office yesterday in — but in a certain state and they were — they had Trump written on it, and they were thrown in a garbage can,” he said.

In the Fox News Radio interview, Trump also seemed to be conflating these ballots with universal mail-in ballots, which Trump calls “unsolicited” ballots. However, Pennsylvania is not sending ballots to voters who do not request one.

The revised statement from the Justice Department said that it “began an inquiry into reports of potential issues with a small number of mail-in ballots” at the board of elections for Luzerne County, which Trump carried by about 20 points in 2016.

“This is both bizarre and disturbing — U.S. Attorney’s Offices don’t issue reports on pending investigations— and certainly not reports so blatantly contrived to provide political ballast for a sitting President’s campaign narrative,” David Laufman, a DOJ veteran, tweeted about the press release.

The Department of Justice did not immediately respond to a request for comment.

Ballots being opened or discarded, if true, is concerning. In Pennsylvania, ballots cannot be opened until 7 a.m. on Election Day.

A letter from U.S. Attorney David Freed, released after the statement, provided some new details of the problem, and seemingly attributed at least part of the problem to sloppy work by election administrators — who might have confused actual completed ballots with mere applications for ballots.

“[O]ur investigation has revealed that all or nearly all envelopes received in the elections office were opened as a matter of course,” read the letter from Freed, addressed to Shelby Watchilla, the director of elections for Luzerne County. “It was explained to investigators the envelopes used for official overseas, military, absentee and mail-in ballot requests are so similar, that the staff believed that adhering to the protocol of preserving envelopes unopened would cause them to miss such ballot requests.”

“Our goal, that I am sure you share, is to ensure that every properly cast ballot is counted,” Freed concluded.

Pennsylvania Attorney General Josh Shapiro, a Democrat, praised Freed’s work in an interview with CNN on Thursday, saying it should instill confidence in voters. “We’ll have to wait and see exactly what United States Attorney Freed and the FBI and the local district attorney came up with, but I think that should give the public confidence in knowing that all of us in law enforcement are doing our job to make sure that legal, eligible votes are counted.”

The Department of Justice was investigating at the request of Stefanie Salavantis, the Luzerne County district attorney. An announcement from her office on Tuesday said that the DA’s office “was notified by Luzerne County Administration regarding issues with a small number of mail-in ballots,” and that federal authorities took over the investigation on Monday.

“The investigation is in its early stages and we are confident that it will be successfully resolved so it will not have an impact on the integrity of the election process,” the announcement read.

County Chief Solicitor Romilda Crocamo said in a statement on Thursday that Watchilla, the county’s elections director, had initially flagged the problems, according to the Times Leader. “County administration immediately reported her findings to the authorities,” the release said, which thanked law enforcement agencies for a quick response.

Kyle Cheney contributed to this report.

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