Just days until the municipal primary election and the Lebanon County Republican Committee wants you to know about its last – final? – attack mailer against Mike Kuhn.
Committee chair Bill Bova and former chair Casey Long texted LebTown mid-week with excerpts from Lebanon County Board of Elections meeting minutes dating to May 26, 2022.
LebTown – not being on the LCRC mailing list – had not seen the mailer at this point. At first, it seemed possible that the minutes were sent as followup to a criticism brought up by Bill Bering Jr. against Kuhn in a WLBR radio segment on Tuesday, May 9, 2023.
All four Republican candidates for commissioner participated in the roundtable discussion, hosted by Laura LeBeau: Bering; incumbent Bob Phillips, who is running with Bering as a joint ticket; Kuhn, an incumbent who was unanimously voted by the county judges to fill the unexpired term left vacant by Bill Ames’ death in 2021; and Sharon Zook.
Bering used a question about election integrity to rebuff Kuhn over allegedly allowing undated ballots be counted in the 2022 primary.
“Last year, during the primary for the Dr. Oz and Dave McCormick campaign, unfortunately, Commissioner Mike Kuhn and Commissioner Jo Ellen Litz voted to approve and count undated mail-in ballots,” said Bering. “As a conservative Republican, that just really hit home to me.”
Bering said that the vote to count undated mail-in ballots went against Pennsylvania law.
Kuhn said in his rebuttal that he wanted mail-in ballots to be eliminated, as well as supporting voter ID, and that Bering’s critique was not completely correct.
“That’s a great example of why the mail-in ballot was a problem,” said Kuhn.
Kuhn said that his initial vote was to reject the undated mail-in ballots, but based on a court case the votes were counted and sequestered. Bering contended that the point was accepting undated mail-in ballots violated state law.
So when Bova and Long began texting meeting minutes out of the blue to LebTown, we assumed it was followup on the WLBR segment – that is, until we became aware that this topic was the focus of LCRC’s latest direct mail missive against Kuhn.
LebTown mentioned that with just days until the election, we might not have time to investigate this fully. But Long cajoled LebTown for coverage – “Of course you wouldn’t have anytime to report on anything negative regarding Kuhn,” said Long.
“A mailer was sent out claiming Kuhn voted to count undated mail ballots. Kuhn posted a response on Facebook saying he didn’t vote to do that. The official meeting minutes that he voted to approve prove otherwise. But you don’t have time to report on that? Yet you post everything negative possible about Phillips and Bering.”
LebTown aims to be responsive to reader feedback and it seemed like a straightforward question. Did Kuhn vote to count undated mail-in ballots?
Here are the meeting minutes as provided by Bova and Long:
Addressing undated mail-in ballots under a voter signature, Sean Drasher stated that some ballots came in without secrecy envelopes and cannot be counted. Ten (10) undated mail-in ballots can now be counted. Four (4) ballots had secrecy envelope issues, 2 had identifying marks and must be rejected and 2 had marks, but were still anonymous and could be accepted. Kuhn made a motion to accept this report to count the ten ballots, seconded by Litz. The motion passed 2 to 1 with Commissioner Phillips voting Nay. On motion duly seconded, the meeting adjourned at 10:29 a.m.
LebTown confirmed that the meeting minutes were legitimate. But as you might expect, the full story is perhaps more complicated.
The basic claim that state law calls for mail-in ballots to be dated is true. However, significant and relevant context is missing from Bering’s statement, as well as the claims on the LCRC mailer.
County administrator Jamie Wolgemuth said that he understands the claim about the undated mail-in ballots being counted to be true, but incomplete. “My recollection is they were sequestered due to the uncertainty of the case law,” said Wolgemuth.
From the time since Act 77 was passed in 2019 with widespread bipartisan support, opening the door for no-excuse mail-in ballots, the date requirement has faced judicial review. A 2020 court case in Allegheny County made its way to the Pennsylvania Supreme Court, which ruled that technical violations such as a missing date did not “warrant the wholesale disenfranchisement of thousands of Pennsylvania voters.” In 2021, that same court declined to hear a case that challenged a Commonwealth Court ruling that undated mail-in ballots should not be counted. That appeal was later pursued by the ACLU, which filed a federal civil rights lawsuit against Lehigh County in January 2022.
On Friday, May 20, 2022, days before the Board of Elections meeting in question, the United States Court of Appeals for the Third Circuit found that the “dating provisions” in state law regarding mail ballots are “immaterial” under federal voting rights law.
Lebanon County elections director Sean Drasher said the decision sent a shockwave through election offices. In a two-page memo (PDF) issued the next Tuesday, May 24, 2022, the Pennsylvania Department of State advised counties to segregate undated mail-in ballots and count them separately.
“A determination on whether the segregated tabulations will be used in certifying elections has not yet been made, given the ongoing litigation,” read the memo.
Drasher noted that the Board of Elections had to make a decision that week, so he took the ruling and Department of State guidance to the Board of Elections to decide what to do.
Drasher described the decision as a judgement call – a sort of, “Sued if you do, sued if you don’t” type situation. (The commonwealth did later sue three counties – Berks, Fayette, and Lancaster – for not counting undated ballots in the 2022 primary.)
“That’s a tough call,” said Drasher. “Honestly, that’s a tough call.”
“If you have a court telling you one thing and the letter of the law telling you another thing, what do you do?”
Drasher said that Lebanon County wasn’t an outlier in its decision, which he characterized as a safe one. Drasher noted that he later sent an email to the Board of Elections congratulating them on their foresight to maintain optionality by sequestering the undated mail-in ballots – essentially treating them as a separate but parallel election – so election results could be reported with undated mail-in ballots included, as per the federal ruling and Department of State guidance, but re-reported without them later if that became necessary.
“That is a big thing – all these little election decisions that weigh heavy on the Board of Elections – that specter hangs over you,” said Drasher.
The Third Circuit ruling was vacated by the U.S. Supreme Court in October 2022. In November 2022, the Pennsylvania Supreme Court ordered counties to refrain from counting undated mail-in ballots.
At the May 26, 2022, meeting, Kuhn and Democratic Commissioner Jo Ellen Litz voted aye on a proposal to follow a process Drasher outlined, which was to accept the undated ballots but segregate them and run them through the machine as an entirely separate election, effectively, so that the votes are tabulated officially but are not mixed in with the main counts. That way the county would have both and so depending on how things go legally the county would be able to combine them or not.
It may be hard to fit context into a postcard mailer – or into a time-limited radio response – but the LCRC mailer seems to have relied on the meeting minutes alone for its understanding of the vote, and those minutes do not tell the full story.
Regarding the meeting minutes, Drasher and Wolgemuth agreed that they might have left out some relevant context.
“It sounds like the way it was written was accurate but maybe not thorough enough,” said Wolgemuth.
Kuhn said he does not think the mailer told the whole story.
“The law was clear to me when I assumed office in February 2022: A mail-in ballot had to be signed and dated appropriately,” said Kuhn. Kuhn went on to explain that when the Third Circuit decision came out, followed by the Department of State guidance a few days later, what had been clear to him became fuzzy. Kuhn added that he does not support mail-in ballots in general, and believes they create opportunities to cheat.
Bering and Long did not immediately respond to LebTown requests for an interview.
Contacted Friday, Bova said he stands by the mailer.
“The minutes are clear,” said Bova. “If Commissioner Kuhn objected to the minutes, he probably shouldn’t have voted to accept the minutes.”
Bova said that he used the county’s own website and the minutes that Kuhn approved.
“I would double down on that information, because frankly that was the No. 1 issue by far that when the committee endorsed I heard talked about,” said Bova. “This is not Bill Bova’s issues, this is taking the issues the committee talked about.”
Luckily, no one has to rely on memory – or minutes – alone to know what happened at that meeting. Commissioner Litz posted it to YouTube. Bova had not seen the video, and doubted its authenticity.
“I don’t know what video you’re talking about or if it could have been altered or where it came from, but I’m going from the official record,” said Bova.
Bova said although he hadn’t seen the video, he does know what the minutes say.
“Commissioner Kuhn approved those minutes, Commissioner Kuhn voted to count undated mail-in ballots, and I’m sticking by what we said in the mailer.”
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Questions about this story? Suggestions for a future LebTown article? Reach our newsroom using this contact form and we’ll do our best to get back to you.
Free news isn’t cheap. If you value the journalism LebTown provides to the community, then help us make it sustainable by becoming a champion of local news. You can unlock additional coverage for the community by supporting our work with a one-time contribution, or joining as a monthly or annual member. You can cancel anytime.
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