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U.S. Attorney David J. Freed Reveals Early Findings of Investigation into Discarded Mail-in Ballots

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The initial findings of a federal investigation into problems with mail-in ballots for the 2020 presidential election at the Luzerne County Bureau of Elections in Pennsylvania uncovered at least nine ballots from military personnel that had been improperly discarded, says David J. Freed, U.S. Attorney for the Middle District of Pennsylvania. According to a letter sent to Luzerne County election officials on September 24, after receiving reports of potential issues with a “small number of mail-in ballots” received the previous week, District Attorney Stefanie Salavantis asked the Office of the United States Attorney to coordinate with the FBI and initiate an inquiry into irregularities involving improperly discarded mail-in ballots at the Luzerne County Bureau of Elections.

Freed Goes Public with Details About Ballot Issue

The problem with the mail-in ballots in Luzerne County stems from an issue with a temporary seasonal independent contractor who reportedly began working at the Luzerne County Bureau of Elections on September 14, 2020. According to reports, it was discovered by Luzerne County Elections Director Shelby Watchilla on September 16, that the independent contractor had improperly discarded a small number of military ballots. According to U.S. Attorney David Freed, the ballots in question were removed and discarded or removed and separated from the envelope that contained confidential voter information, which meant that they could not all be matched to a specific voter. There were another four seemingly official absentee ballot envelopes that were empty, in addition to the nine military ballots. During the course of the investigation into the ballot issue, it was discovered that nearly all of the envelopes received by the Luzerne County election bureau had been opened by election workers “as a matter of course,” in order to avoid missing official military, overseas, absentee and mail-in ballot requests.  

In a highly irregular breach of protocol, David Freed issued two press releases about the ongoing investigation into the discarded mail-in ballots. The first version was deleted from the U.S. Attorney’s Office for the Middle District of Pennsylvania’s website and replaced with a revised version. “Investigators have recovered nine ballots at this time,” Freed said in the revised statement, issued on September 24. “Some of those ballots can be attributed to specific voters and some cannot.” Initially, prosecutors had reported that all nine discarded ballots had been cast for presidential candidate Donald Trump. However, Freed issued a revised statement later that day, indicating that only seven of the discarded ballots were votes for Trump. The other two ballots had reportedly been resealed inside their “appropriate envelopes” before investigators had a chance to review them, so their contents remain unknown. “In addition to the military ballots and envelopes that were discarded and recovered as detailed above,” Freed wrote, “investigators recovered four (4) apparently official, bar-coded, absentee ballot envelopes that were empty.” According to Freed, the majority of the materials recovered by investigators were found in an outside dumpster.

Freed Issues Letter to Luzerne County Board of Elections

In a letter to the Luzerne County Bureau of Elections released on September 24, Freed addresses election director Shelby Watchilla. “The FBI has recovered a number of documents relating to military ballots that had been improperly opened by your elections staff, and had the ballots removed and discarded, or removed and placed separately from the envelope containing confidential voter information and attestation,” Freed wrote in the letter. To open, remove or discard ballots is a violation of Pennsylvania’s election law, which specifies that voters’ ballots should be securely stored and remain unopened until 7am on Election Day. “Opening a military or overseas ballot, or an absentee or mail-in ballot for that matter, violates the controlling statutes and is contrary to Pennsylvania Department of State guidance,” Freed wrote.

When interviewed by federal investigators, election workers at the Luzerne County Bureau of Elections said that the envelopes used for military, overseas, absentee and mail-in ballots are so similar that they believed following protocol and preserving the envelopes unopened would cause them to miss ballot requests. Instead, they had been opening the envelopes. “The preliminary findings of this inquiry are troubling and the Luzerne County Bureau of Elections must comply with all applicable state and federal election laws and guidance to ensure that all votes – regardless of party – are counted to ensure an accurate election count,” Freed wrote in the letter to the Bureau of Elections. “Even though your staff has made some attempts to reconstitute certain of the improperly opened ballots, there is no guarantee that any of these votes will be counted in the general election.”

Luzerne County Issues Statement Regarding Discarded Ballots

In response to Freed’s statement, Luzerne County Manager David Pedri issued his own statement outlining the events leading up to the investigation and detailing how the ballots came to be discarded by a temporary independent contractor hired to help out in the weeks leading up to the election. According to the statement, the county began sending out Uniformed Military and Overseas Voters Act (UMOVA) ballots to military voters and U.S. citizens living abroad on August 25 and planned to send out general mail-in ballots beginning on October 5. Pedri notes in the statement that one individual contracted to assist with sorting the mail received by the Elections Bureau incorrectly discarded UMOVA ballots into the office trash. Upon discovering the issue on September 16, all garbage from the building during the time period the independent contractor was present at the Elections Bureau was searched by the FBI, the Luzerne County District Attorney’s Office, the Pennsylvania State Police and the Luzerne County Staff.

Pedri states that it was Shelby Watchilla who discovered the improper activity and immediately contacted the Luzerne County Office of Law and then reported the matter to the Luzerne County District Attorney’s Office for investigation and assistance. Pedri closes his statement by stating that the issue and the way it was handled serve as proof that the election system works. “While the actions of this individual has cast a concern, the above statement shows that the system of checks and balances set forth in Pennsylvania elections works,” the statement says. “An error was made, a public servant discovered it and reported it to law enforcement at the local, State and Federal level who took over to ensure that integrity of the system in place.” The letter goes on to say that every properly cast vote will be counted and also encourages all voters who mailed in their UMOVA ballots to check the status of their ballot on the Pennsylvania Department of State website.

Ballot Incident May Bolster Trump’s Claims About Election Fraud

Freed’s decision to break protocol and make details about the investigation into the mail-in ballot issue in Luzerne County public raised questions about whether or not the announcement was a politically motivated attempt to validate President Trump’s concerns about mail-in voting being susceptible to fraud. “This is clear politicization of the Justice Department’s work in the middle of an active general election,” said Kristen Clarke, executive director of the Lawyers’ Committee for Civil Rights Under Law. “It seemed like a thinly veiled attempt to breathe life into President Trump’s false claims about mail ballot fraud.”

It is the Justice Department’s policy to keep cases involving potential voter fraud confidential to avoid affecting the outcome of any election, and election experts say it is almost unheard-of for the Department of Justice to not only publish details about an ongoing investigation, but to disclose the name of the candidate for whom the ballots had been cast. “The question of who voters voted for would be immaterial in any kind of tampering investigation,” said Richard L. Hasen, professor of law at the University of California, Irvine, “and [the information about the candidate’s identity] seems to be in there for political reasons, to bolster the president’s arguments that the election is being rigged against him.”

Justin Levitt, an American constitutional law scholar and professor at Loyola Law School and former Deputy Assistant Attorney General in the Civil Rights Division of the Department of Justice, had a similar reaction to Freed’s statement. In response to a tweet from the U.S. Attorney’s Office for the Middle District of Pennsylvania announcing the issue with the mail-in ballots, Levitt tweeted, “An investigation here may be reasonable. But there is NO legit reason for: 1) a DOJ press release on a pending investigation, that 2) announces a partial list of unconfirmed facts, including 3) the identity of one of the candidates on specific ballots.”

Trump Cites Ballot Issue During White House Briefing

During a media briefing at the White House on the same day Freed released his statement, Trump himself brought up the incident in Luzerne County, saying, “So, we have to be very careful with the ballots. The ballots, that’s a whole big scam. They found, I understand, eight ballots in a wastepaper basket in some location.” He went on to say, “We want to make sure the election is honest and I’m not sure that it can be. I don’t know that it can be with this whole situation, unsolicited ballots. They’re unsolicited, millions being sent to everybody.” Trump’s campaign also cited the investigation as evidence of problems with mail-in voting. “EVERY vote matters. 9 military votes MATTER,” White House communications director Alyssa Farah wrote on Twitter. “Call me old fashioned: but I believe those willing to serve our nation in uniform especially deserve to have their vote counted accurately.” Deputy communications director Matt Wolking also tweeted about the investigation, claiming that “Democrats are trying to steal the election.”

The White House and President Trump’s campaign have been increasingly vocal about their position against expanding access to mail-in voting, claiming that voting by mail is “dangerous” and rife with fraud. Although voter fraud is extremely rare, Trump has made portraying mail voting as unreliable a focal point in his re-election campaign, spreading concerns about a “rigged” election using incidents like the one in Luzerne County as evidence. However, despite Trump’s claims that mail-in ballots pose a threat to the 2020 presidential election, FBI director Christopher A. Wray assured lawmakers last month that the agency has not seen evidence of a “coordinated national voter fraud effort.” Wray appeared before Congress on September 24 and stated that any potential voter fraud operation would have to be widespread and well-coordinated if it was to change the outcome of the upcoming election. And to carry out that kind of fraud operation would be a “major challenge for an adversary,” he said.

In an interview with CNN the day Freed’s statement about the Luzerne County mail-in ballot matter was published on the U.S. Attorney’s Office for the Middle District of Pennsylvania’s website, Pennsylvania Attorney General Josh Shapiro congratulated David Freed for “doing his job,” offering a different point of view when asked if the incident in Luzerne County would undermine voters’ confidence in mail-in voting. “All law enforcement should be doing their job to ensure that every legal, eligible vote is counted,” Shapiro said. “Now, 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.”

Investigation into Discarded Ballots is Ongoing

U.S. Attorney David Freed has noted that the investigation into the improperly discarded UMOVA mail-in ballots in Luzerne County, Pennsylvania is ongoing. He also stated that his decision to release details about the investigation was prompted by “the limited amount of time before the general election and the vital public importance of these issues.” Still, Luzerne County District Attorney Stefanie Salavantis has stated that she does not believe the ballot issue would impact the results of the upcoming presidential election. “We are confident that it will be successfully resolved so it will not have an impact on the integrity of the election process,” Salavantis said.

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