Response to Zaffino request for investigation of 2019 Warren County General Election by Director of Elections

Editors Note: This letter from Warren County Director of Elections Lisa Rivett is an official response to a Request for Investigation of the November 5th General Election submitted by write-in candidate for commissioner Constance Zaffino. This letter was provided to The Allegheny Voice by Solicitor Nathaniel Schmidt at the direction of Commissioner Ben Kafferlin.

The text below is complete; the format was slightly edited to adapt to this medium. View a PDF version of the original letter here.

See also Warren County Solicitor Nathaniel Schmidt’s official response.

In response to the complaint from Constance Zaffino dated Nov. 18, 2019, and received by the Office of the District Attorney for Warren County, Pennsylvania, on Nov. 25, 2019:

To:     Warren County District Attorney Robert C. Greene

Date: December 10, 2019

Dear District Attorney Greene:

Allow me, first, to preface this response with the following statements:

  • Mr. Dan Glotz, Mr. Ed Burris, and Ms. Kim Exley are honest and highly respected in their respective positions as the Director of Planning and Zoning, the Director of Veterans Affairs, and the Director of Human Resources for Warren County.
  • Mr. Glotz and Mr. Burris have, on other occasions, been appointed to the Board of Elections.
  • All three of these employees of the County of Warren took their responsibilities on the Board of Elections very seriously, and acted with both integrity and impartiality.

In regards to the itemized list of concerns Ms. Zaffino raised in her complaint, allow me to respond to each individually:

1. “The lack of advertisement the fact that there were to be new machines for voting… .”

a. All meetings of the Warren County Board of Elections were advertised in compliance with the Sunshine Law.

b. Meetings to discuss the purchase or lease of the new voting machines (hereafter referred to as ballot-marking devices, or “BMDs’’) were no exception.

c. The Warren County Board of Elections advertised a March 7,2019 meeting in the Warren Times-Observer on February 28,2019, and an August 2, 2019 meeting in the Warren Times-Observer on July 26,2019. The July 26,2019, advertisement specifically stated the purpose of the meeting was “to discuss the contract for Warren County’s Voting System.” The Affidavits of Publication for both meetings which regularly issued with such advertisements are attached to this response.

d. The minutes of these meetings are available to anyone upon request.

2. “The lack of an adequate number of voting machines (BMDs) at each voting precinct…”

a. The statement that “most precincts had their machine numbers cut in half” is inaccurate. Not all precincts saw a reduction in the number of BMDs.

b. Commissioner Eggleston and I, as the Director of Elections, had many conversations to determine how many new machines would need to be purchased and/or leased prior to the fall election.

b. i. Many of these conversations all took place in 2018, when it was learned the Comities would be required to buy new machines.

c. Due to the high cost to the county involved in the purchasing/leasing of new BMDs, Commissioner Eggleston recommended to the Board of Elections during the publicly called meetings the numbers we discussed during those meetings purely as a cost-saving method. I recommended the same numbers to the Board of Elections for acquisition.

d. There was absolutely never any comments or suggestion from Commissioner Eggleston to me that a lower number of machines ordered would suppress votes.

3. “The lack of paper specific for the machines…”

a. Dominion recommends 32 lb. paper used for their printers. The printers can work with 20 lb paper; however, using paper with lower weight can cause the ballot to print slightly askew, causing scanning difficulties at the time of counting. At the time of counting on Election Night, all ballots that produced scanning errors were duplicated the next day as set forth in the response to Paragraph 12.

b. Along with the delivery of equipment from the Elections Office to each precinct prior to Election Day, each precinct was given additional ballot paper in their black supply bags. This paper was in addition to the amount of paper that was actually in the printers upon delivery to the precincts prior to Election Day. Each precinct was also sent 50 EPBs.

b. FREEHOLD TOWNSHIP: In regard to the statements that:  

i. Freehold Township had “30 sheets in each i. Again, as with all precincts, of their two machines,” ;i. Again, as with all precincts, additional paper was sent to the polling place in their black supply bag. See item 3a (above) for more information.
ii. “when that paper was used they were unable to reach the Voter Registration Office,” and that;ii . Once this precinct contacted the Elections Office to report that they were running low on paper, I immediately sent a poll worker known as a “rover/runner” there with more paper.
Freehold Township resulted in a highly contested write-in race for Township Supervisor, such that the candidateswere not registered with the Elections Office, and the high level of voter anticipation was not expected.
iii. “the township supervisor was contacted and opened the office and got copy paper,” and that;iii. Due to the distance of that precinct from the courthouse, the poll worker who contacted the Elections Office asked if they could use regular copy paper in the meantime, and I advised that they could. A ream of paper was then retrieved for that purpose from the township office, which is the polling place for that precinct. Poll workers were told to use this paper until additional paper arrived.
iv. “the lead person for Freehold was also not present due to a death in her family,” and that;iii. Due to the distance of that precinct from the courthouse, the poll worker who contacted the Elections Office asked if they could use regular copy paper in the meantime, and I advised that they could. A ream of paper was then retrieved for that purpose from the township office, which is the polling place for that precinct. Poll workers were told to use this paper until additional paper arrived.
v. “an untrained person was put in charge of the precinct”:v. No untrained poll workers have ever been placed in charge of polls during an election. Martie Whitely, the elected majority inspector, stepped up at my request,and served as Judge of Elections in Freehold Township, taking the appropriate oath, during the election under investigation.

c. CONEWANGO TOWNSHIP (WITH VOTING TAKING PLACE IN THE STARBRICK FIREHALL):

In regard to the statements that:

i. “Conewango (at Starbrick) had 100 sheets of paper for their machines and used that prior to noon,” and that;i. Again, as with all precincts, additional paper was sent to the polling place in their black supply bag. See item 3a (above) for more information. When the Judge of Elections notified the Elections Office that they were getting low on paper, a “rover/runner” was sent immediately to the precinct.
ii. “Lisa Rivett reported on November 8, 2019 a problem with the regular copy paper scanning.”ii. There were, for the most part, no issues during the scanning of ballots printed on regular copy paper at the end of Election Night. However, because it wasn’t the weight certified by Dominion to work in the scanner, I was not sure prior to processing the ballots whether or not ballots printed on regular copy paper would work in the optical scanner used to scan ballots following an election.

d. To address the paper availability issue in greater depth, I would add that my “rovers/runners” also had extra paper in their bags to hand out to precincts as the need arose throughout the day. They were able to provide extra paper to any precinct at any time it was necessary, as soon as the need was communicated from a precinct, for the duration of the day.

4. “The new machines reporting an error if you do not vote for as many candidates as possible in each category.”

A similar “error,” shown on BMD screens in the event that a voter cast a vote for fewer candidates than they could have in a given category, was present on the previous voting machines (hereafter known as “Accuvote” machines) as well.

i. On the previous Accuvote machines: if an undervote or a blank vote occurred, the race header was shown in red on the summary page when the voter finished, before they were able to submit their completed ballot. Voters would need to confirm that they meant to vote for fewer candidates than they could have in any category in which they did so.

ii. On the new (BMD) machines: the “hazard” icon (as opposed to an “error” message) shows up on each race where an undei*vote or blank vote occurs. THIS IS THE SAME CONCEPT, JUST A DIFFERENT FORMAT. To the best of my knowledge, this hazard message is built into Dominion’s software and was integral to their state and federal certifications, and the language or nature of the message may not be able to be changed.

iii. In regards to machines not indicating an overvote to voters on-screen: There are no warnings for overvotes because, like the old (Accuvote) machines, and contrary to Ms. Zaffinos accusation that there were overvotes, the new (BMD) machines do not allow overvotes to occur. Overvotes can ONLY occur on absentee ballots and/or hand-marked paper ballots (EPBs), which were individually reviewed by the Board of Elections.

5. ‘The lack of paper ballots at polling sites was a concern….”

a. Due to the unanticipated record voter turnout during this election, in order to reduce lines and long waits at precincts during Election Day, it was decided that poll workers should go ahead and offer Emergency Paper Ballots (hereafter referred to as EPBs) to voters unwilling or unable to wait to use a machine.

b. As soon as a precinct communicated to the Election Office that they were running low on EPBs, more were copied, as Ms. Zaffino states, “on the copy machines at the courthouse,” and those EPBs were delivered to each precinct that requested them by a “rover/runner” as quickly as possible.

c. EPBs have always been sent to precincts as a regular voting supply, to be used in the event that there are issues with voting machines, including but not limited to issues such as loss of power at a precinct rendering voting machines inoperable. This is mandated by the Department of State.

d. I send approximately 50 EPBs to each precinct during each and every election. For the most part, these ballots are unused, and unused EPBs are shredded at the conclusion of each election.

e. EPBs have always been printed on the copy machines in the courthouse, and on regular copy paper.

f. During the election under investigation, initially, voters were given a “secrecy” envelope in which to place each individual EPB in the event that they preferred to use an EPB rather than wait in line to use a machine. In time and, again, due to the unanticipatedly high voter turnout, we ran out of those envelopes and I instructed poll workers to have the voters using EPBs place their ballots directly into the ballot box as an alternative to a “secrecy” envelope. The only goal was to provide each voter privacy in regards to their completed ballots. Whether ballots were printed from a BMD machine or filled out by hand, their placement inside the sealed ballot boxes ensures that they were kept confidential.

i. When the ballot boxes were returned to the courthouse at the conclusion of the election under investigation, “hand-marked” ballots (“EPBs”) were separated from the ballots printed from BMD machines. This was done because, although they were scanned in with BMD-printed ballots for each precinct, they needed to be scanned separately on the optical scanner.

– This is because the requirements for the scanner to read hand- marked ballots are different from the ones printed from BMD machines. The BMD-printed ballots include a “QR” code, which the scanner reads. Without the “QR” code on hand-marked ballots, the scanner needs to be set to read individual marks rather than a “QR” code, and for that reason hand-marked ballots were scanned in one group by precinct, and BMD-printed ballots were scanned in another group. This had nothing to do with handling the two types of ballots incongruently, but rather to make the process of scanning each type of ballot, by precinct, as efficient as possible.

6. “Extremely long waits at polling places, many well over an hour and at least one up to two hours….”

a. I agree that the lines – and, as a result, the wait times for voters from arrival at their polling places through completing their ballot on a BMD – were extremely long at some precincts. We handled that as best we could, however, it was impossible to predict the significantly high voter turnout experienced during the election under investigation. The length of wait times for lines was not acceptable on a regular basis. That being said, every person that waited in line until it was their turn to vote was able to do so and had their vote properly adjudicated.

7. “Numerous printers broke down throughout the day….”

a. No printers “broke down” on the day of the election under investigation, and no printers were replaced. They all operated properly, but were simply running out of paper. Poll workers were unsure how to respond to popup messages on the BMDs, which occurred to notify them that the printers needed more paper. When they called into the Elections Office for help, either I or Rebecca LoPresti, the Dominion Support personnel, answered their questions.

8. ‘There were machines that did not work when turned on at 7 a.m…”

a. All of my precincts are required to call in to the Elections Office on Election morning by 6:30 a.m. to notify me that they are “up and running.” This procedure was put in place shortly after I became the Director of Elections for Warren County. This procedure was put in place for two reasons, specifically:

i. So that I can be aware that everything is correctly set up, configured, and prepared to begin recording votes by 7 a.m., and

ii. So that if a precinct is having problems, with voting equipment or otherwise, we have time to “walk them through” a “fix” in order to have them correctly set up, configured, and prepared to begin recording votes by 7 a.m.

b. All precincts called in by 7:00 a.m. on Election Day to confirm their machines were running, including Pleasant Township.

9. “Handwritten votes from Freehold Township’s polling place were put into ballot boxes, and that Ms. Zaffino could not confirm having seen them during the counting of write-in and absentee ballots from that precinct..

a. Mr. Alan Smith, of Freehold Township, was in fact present at the official count meeting. Mr. Smith stated during that meeting that he was told a couple voters in his township had voted on a blank piece of paper, and that he wanted to see those ballots to ensure that they had been counted. After much discussion, as well as a phone call to the person who had shared this information with Mr. Smith, it was determined that that the voters in question had actually voted on an Emergency Paper Ballot (EPB), and that those ballots had been counted with the others from Freehold Township. The EPBs in question were put into the ballot boxes (as discussed in item 5f, above) upon completion, just like all of the ballots countywide, regardless of whether they were hand-marked or BMD- printed which, I’ve already established in item 5f above, was acceptable in order to ensure confidentiality of the completed ballot.

10. “Inconsistency with information on, and concerns over Commissioner Eggleston’s access to, the warrenvotes.com website..

a. The warrevotes.com website was originally created and designed by Commissioner Eggleston several years ago. I have no reason to believe Commissioner Eggleston accessed the website on Election Night I personally entered the results on Warrenvotes.com after all the ballots are counted. Commissioner Eggleston has never assisted with this and he did not on the night of this recent election. The numbers posted for this election are accurate and identical to those generated by the ballot counting process in the Election Office at the end of the Election.

b. Each election, I enter all candidate data to the website in order to create the database and prepare for the entry of Election Day data.

c. Data entry into the warrenvotes.com database began as individual precinct ballots were being scanned. Some precincts did not have any EPBs, while others had a large number of EPBs.

i. Ballots were scanned by precinct beginning with BMD-printed ballots. Following the scanning of all BMD-printed ballots for a given precinct, data from those ballots was then entered into the warrenvotes.com database.

ii. Following the scanning of BMD-printed ballots for a precinct, that same precinct’s EPBs were then scanned. After the scanning of all EPBs for each precinct was completed, data from those ballots were entered into the warrenvotes.com database.

iii. Finally, absentee ballots for each precinct were scanned, and data from those ballots was entered into the warrenvotes.com database.

iv. By midnight on Election Night, we were unable to get warrenvotes.com completely updated to reflect data from all BMD-printed, hand-marked (EPB), and absentee ballots for every precinct countywide. At that point, we concentrated simply on getting all of the ballots scanned that we were able to. We finally finished scanning at 3:30 a.m. Wednesday, November 6.

v. BMD-printed, hand-marked, and absentee ballots are scanned separately because the requirements for scanning BMD-printed and hand-marked ballots are different. You can see the note following item 5/f/i (above) for more information on the requirements for scanning BMD-printed versus hand-marked ballots.

vi. The scanning of all ballots, including BMD-printed, hand-marked, and absentee ballots – for all precincts countywide – was completed by the afternoon of Wednesday, Nov. 6 (the day following Election Day for the election under investigation).

vii. At that point, I personally and singularly updated warrenvotes.com to reflect all data from all ballots countywide so that the website would be able to offer county residents complete, up-to-date elections results.

11. “Write-in votes with incorrect first names for me were not counted….”

a. In fact, many write-in votes for Ms. Zaffino were counted by this Board of Elections that may not have been counted with previous Boards of Elections. In the past, Boards of Elections have not accepted only the last name of a candidate on a ballot as an acceptable vote for that candidate.

b. The Board of Elections has been instructed to consider reasonable voter intent when they make their decisions to accept or deny write-in votes for any candidate. This decision is completely up to members of the Board of Elections, and the Director of Elections and the County Solicitor can only make recommendations in the matter.

c. The County Solicitor (Nathaniel Schmidt), is present during the process only to interpret the law should the need arise, not to participate in decisions regarding the acceptability of write-in votes as they appear on individual ballots.

d. In regards to the statement that “there was a gentleman running for Township Supervisor by the name of Charles Morrison,” and that “Charlie, Charles, Chuck, all were accepted,” and that “PeeWee (no last name)” was accepted as a write-in vote for Mr. Morrison because “he goes by this ‘nickname’”, Mr. Morrison communicated with the Elections Office prior to the election regarding different name variations, including “PeeWee”. This reporting of name variations has been a practice of the Elections Office for many years and is not limited to Warren County. Other write-in candidates also submitted name variations prior to running for office, in order to ensure that write-in votes for any variation of their name that they thought might appear on a ballot would be counted. Ms. Zaffino did not pre-report to me that she went by the names of Carol, Cathy, or Cindy. The Board did not accept “Cindy Zaffino” because another Commissioner candidate, Cindy Morrison, shared that name, and “Cindy Morrison” received a significant number of write in votes. The Board felt voter intent could therefore not be determined.

12. “I have legitimate concerns about several of these people [helpers on the night of the election] maintaining professional boundaries as they have displayed a willingness to do other people’s bidding….”

a. This statement is factually inaccurate.

b. The three groups of people referred to by Ms. Zaffino were asked the day after the election to assist in the duplication of ballots which on Wednesday, November 8,2019, in the Commissioners’ Meeting Room, not the night of the election. Each participant took the oath of an election clerk prior to beginning the duplication.

i. Ballot Duplication is a process that addresses issues with hand-marked ballots that cannot be scanned for a variety of reasons, including but not limited to:

– Absentee ballots that are returned to the Elections Office in sealed secrecy envelopes that are stained, torn, or otherwise unreadable by the scanner.

– EPBs printed on copy paper at the courthouse and delivered to those precincts in need of them on the day of the election under investigation.

  • because the “tic” marks on some of these ballots were uneven, the optical scanner was unable to read them.

– The procedure for Ballot Duplication, in the event of ballots that cannot be scanned, is to have one voter who is a registered Democrat and one who is a registered Republican present for each group of three helpers. Each helper is sworn in by the County Solicitor. Groups are given one blank ballot (similar to an absentee ballot), and the original ballot, and instructed to duplicate the unreadable (by the optical scanner) ballots EXACTLY. Once all ballots in need of duplication have been duplicated thus, the original ballots are “struck through” so that they could not be counted in error. Duplicate ballots are then scanned into the system using the optical scanner. Duplicate hand-marked ballots were scanned with their respective precincts’ hand-marked ballots. Duplicate absentee ballots were scanned with their respective precincts’ absentee ballots.

* This procedure is done to remove the variable of human error from the hand-counting and hand-entering these ballots into the system. None of the folks who assisted with the procedure had any reason not to duplicate the ballots they worked on exactly.

I would like to conclude by making just a handful of personal comments in response to the overall complaint filed by Ms. Zaffino:

  • I do not believe that any voter suppression took place during the election under investigation—nor, of course, during any other election since I have been Director of Elections for Warren County. I am not aware of any actions, comments, or intent by any person involved in the 2019 Warren County general election, before, during, or after Election Day, or any circumstances that indicate voter suppression took place or was attempted by any person.
  • There absolutely were long lines for voters at many polling places throughout the county this is not repeated in subsequent elections. With that being said, however, I think it’s important to remember that with any new equipment a learning curve on the parts of both poll workers and voters needs to be taken into account.
  • Poll workers present during the election under investigation attended all mandatory poll worker training; however, there is no way to simulate eveiy single scenario that may occur during the first election following the implementation of new voting equipment.
  • Furthermore, the number of people who turned out to vote during the election under investigation was enormous, highly unanticipated, and an issue for which there was no easy fix during the election. The best we can do is to use what we learned during the election under investigation to improve the performance of poll workers, as well as voting equipment, in subsequent elections.
  • I feel that everyone involved did the best job they could possibly have done during the election under investigation given the circumstances, unique issues and complications, and complex makeup of county wide issues encountered.

Sincerely,

Lisa R. Rivett
Warren County Director of Elections

To see four exhibits attached to this letter, see the PDF version.

Response to Zaffino request for investigation of Warren County election from Solicitor Nathanial Schmidt

Editors Note: This letter from Warren County Solicitor Nathaniel Schmidt is an official response to a Request for Investigation of the November 5th General Election submitted by write-in candidate for commissioner Constance Zaffino. This letter was provided to The Allegheny Voice by Solicitor Schmidt at the direction of Commissioner Ben Kafferlin. The text below is complete; the format was slightly edited to adapt to this medium. View a PDF version of the original letter here.

December 10, 2019

Warren County District Attorney Robert C. Greene
Warren County Courthouse
204 West Fourth Avenue
Warren, PA 16365

Re: Response to Candidate Zaffino’s Complaint

District Attorney Greene:

In conjunction with the attached statement from Lisa Rivett, Warren County Director of Elections, please accept this letter as the position of the Warren County Board of Elections in response to the letter delivered to your office by former1 candidate for Warren County Commissioner Connie Zaffino and the announcement of a criminal investigation into her allegations.

Footnote 1: Please note that Ms. Zaffino has filed her final campaign finance report and other documentation formally ending her 2019 General Election Campaign.

I would encourage you to first review Ms. Rivett’s response in its entirety, which responds to Ms. Zaffino’s letter in a point-by-point fashion. This letter will supplement Ms. Rivett’s statement with the following content:

  1. Legal observations and additional factual background on specific points raised by Ms. Zaffino and Ms. Rivett’s response where necessary and appropriate, and additional factual reporting on Election Day events which I personally observed or participated in;
  2. The Board of Election’s position toward Ms. Zaffino’s letter under the Election Code; and
  3. Summary observations on the conduct of the 2019 General Election, recommendations to future iterations of the Warren County Board of Elections, and a final recommendation to your office.

SECTION I
ADDITIONAL LEGAL OBSERVATION AND FACTUAL BACKGROUND SUPPLEMENTING 
MS. RIVETT’S RESPONSE

ZAFFINO PARAGRAPH 2:

“Commissioner Eggleston stated on 11/6/19 that this was his decision to reduce cost”

Commissioner Eggleston’s statement that “he made the decision” to acquire less voting machines, which was published on social media on the evening of the Election Day, is not legally accurate.

Although he attended, Commissioner Eggleston did not render a vote at the August 2, 2019, meeting, wherein the Board of Elections, comprised of Dan Glotz, Ed Burris, and Kim Exley, who together issued a unanimous vote for the acquisition of the Dominion voting machines. This meeting was also attended by Ms. Rivett and myself. Moreover, in rebuttal to Ms. Zaffino’s allegations of improper influence, Commissioner Eggleston recognized he was not a member of the Board; he did not attempt to vote or show he believed himself entitled to vote; and he made no overt statements or any implied threats whatsoever attempting to improperly influence any Member of the Board. Each Member of the Board appeared to make their own independent analysis and decision regarding the terms of the contract and their vote on the acquisition.

In regard to Ms. Rivett’s discussions with Commissioner Eggleston referenced in her response, and any questions which may be raised or inferred against either of them, I would point out the following: 1

  1. The existence of the requirement imposed by the Department of State as a result of the Stein settlement to acquire new voting machines was known prior to the naming of the replacement Board; It was not clear for most of the 2019 election season whether the County would eventually receive any reimbursement for their purchase of the voting machines, which is a total investment of over $600,000 over ten years;
  2. Commissioner Eggleston at all times remained an official familiar with and responsible for the County Budget, for which this purchase had not had funds allocated due to the Department of State Stein settlement mandate being issued after the budge was approved;
  3. At the August 2,2019, meeting of the Board of Elections, Commissioner Eggleston encouraged the Board to utilize Eric Hern, Director of Finance 8c Administration, (as opposed to himself) to negotiate with Dominion Voting Systems on final financial issues;
  4. Commissioner Eggleston was entitled and not prohibited by law to share opinions or make good faith recommendations to Ms. Rivett for cost savings purposes about the amount of machines to acquire;
  5. Commissioner Eggleston was entitled and not prohibited by law to appear at a public meeting and express his opinion about the amount of machines or any other concerns about the contract to be entered with Dominion;
  6. The Board of Elections also received their recommendation as to the amount of voting machines to be acquired from Ms. Rivett, given her experience in the position, her knowledge of the conduct of elections in Warren County.
  7. There is simply no evidence, from the beginning to the end of every known discussion by everyone involved regarding the acquisition of the voting machines, that anyone considered reducing the number of machines in an effort to suppress voter turnout.

In summary. Commissioner Eggleston’s statement that “he made the decision” about the number of machines to be acquired is best understood as those of a political candidate who, in view of the problems which arose on Election Day, attempted to take responsibility for his part in discussions with Ms. Rivett and the recommendation to the Board to reduce the number of machines at certain precincts, and not a statement of legal act.

ZAFFINO PARAGRAPH 3

“The lack of paper specific for the machines…”

Due to the seriousness of Ms. Zaffino’s allegations and the existence of a criminal investigation, I would like to offer some additional facts of which I have personal knowledge, which I believe your office would, if investigated further, find indicative of the efforts made by many citizen volunteers of Warren County to keep the election operating as efficiently as possible.

When I arrived at the Courthouse around 9:00 a.m. on the morning of the election, I checked in with Ms. Rivett at the Elections Office. Recognizing an urgent situation developing, on the request of Ms. Rivett around 10:00 a.m., I and my law firm assistant, Joanna Elletson, delivered paper as a rover to the Glade Township and Warren East precincts. I then went to Walmart and at the request of Ms. Rivett purchased approximately 8 full cases of paper of their office supplies section prior to 12:00 p.m. Simultaneously I had asked my assistant, Joanne Elletson, to begin online research to find nearby outlets that sold 32 lb paper. By 12:30 p.m. I had delivered paper from Walmart to the Conewango precinct in North Warren, and returned the rest of the boxes to the Courthouse. All of the paper obtained from Walmart was still not at the recommended 32 lb. weight; however, Ms. Elletson was able to locate several cases of 32 lb. paper in stock at The Paper Factory in Bradford. On the direction of Ms. Rivett, Ms. Elletson couriered to Bradford to retrieve these boxes, which were delivered to the Courthouse by 3:00 p.m. and then distributed as needed to the remaining precincts. The costs for acquiring this paper were forwarded by my office, with receipts maintained, and reimbursements having already been made by the County (Walmart accepted on return all the unused boxes, and the Election Office retains all the 32 lb. stock from The Paper Factory).

ZAFFINO PARAGRAPH 9

“A gentlemen from Freehold.. .claimed there were handwritten votes on copy paper.. .there were no such ballots reviewed.”

As to Paragraph 9,1 personally fielded Mr. Smith’s concerns. He appeared at the beginning of the adjudication, and when it was clear after some time that ballots from Freehold Township would not be reviewed (due to the setup of the computer system) until much later in the day, I stepped outside with him into the foyer of the main entrance and listened to his concerns. I then encouraged him to call the citizen who forwarded the complaint. I observed Mr. Smith make the call on his cell phone, and at the end of the call when he hung up he advised that the ballots were not cast on plain white sheets of paper with names written in freehand, as he had made it sound in the Commissioners’ Office (and as it had apparently been communicated to him initially), but rather on Emergency Paper Ballots. I advised him I would monitor the votes from Freehold as they came in and let him know what was found.

When Freehold Township’s votes were reviewed around 10:00 p.m. that evening, I identified four EPB’s which fit the description Mr. Smith gave, and the Board ensured they were properly adjudicated. An additional ballot had a candidate’s name written in large letters across the top of an EPB, but because it was not obvious what race this was assigned to, and the space for the Township Supervisor race was available, the ballot was rendered void. I then called Mr. Smith on November 11, and advised him of what we had found during the adjudication, and Mr. Smith was satisfied with this outcome.

PARAGRAPH 10:

“Commissioner Eggleston administers warrenvotes.com…”

I interviewed Commissioner Eggleston on 12/9/2019 to ask about his administration of warrenvotes.com. Commissioner Eggleston does assist Ms. Rivett in some ministerial setting up each race related to the election. He advised that on Election Day, he was not on the website warrenvotes.com except to view the results as a member of the public and never in an administrative capacity.

Commissioner Eggleston’s administrative duties for the warrenvotes.com website during the election arguably creates an appearance of impropriety. However, this investigation has revealed no actual wrongdoing, as there has never been a discrepancy between the vote values inserted by Ms. Rivett on warrenvotes.com as a result of ballot counting, and what values have been displayed on the website. I would make a recommendation to the Board of Elections that in the event a County Commissioner is statutorily recused from being on the Board of Elections in the future, all administration duties and access to the website must be transferred to a separate party.

PARAGRAPH 11:

“Write in ballots with incorrect first names for me were not counted…”

Under 25 Pa.C.S. §3157, if Ms. Zaffino wished to challenge the decisions of the Board of Elections regarding the counting of any votes, she had legal recourse to do so by filing an appeal to the Court of Common Pleas. The statute provides any challenger two days from the date the canvass decision is announced, which would have been Sunday, November 11, but under law would have been extended to Tuesday, November 13,2019, the first day the Court was open after the date the deadline passed.

Echoing Ms. Rivett, the Board of Elections did not discard every questionable vote from Ms. Zaffino. For example, according to my notes from the evening, in one instance the Board awarded Ms. Zaffino a write-in vote for with the last name of “Zallino”. The Board of Elections was guided by the principle of voter intent (see In re Grove City, Second Ward Council Democrat Write-In Nomination, 44 Pa. D. & C.3d249,253 (Pa. Com. PI. 1987)) and the document titled “What Constitutes a Vote” which is published by the Pennsylvania Bulletin (33 Pa.B. 3935) which incorporates state and federal guidelines, and was referred to multiple times during the adjudication for guidance.

As was stated in the Board of Elections meeting conducted December 6,2019, even if Ms. Zaffino had been awarded eveiy vote in her favor that required adjudication, her final count would still have been far less than what would have been required to have her declared the winner. 

SECTION III

ANALYSIS OF ZAFFINO LETTER AND POSITION OF BOARD OF ELECTIONS UNDER THE ELECTION CODE

As a continuation of Paragraph 11 above regarding the opportunity to challenge canvass decisions of the Board of Elections, it should be very clearly noted that Ms. Zaffino had full opportunity to present any complaints of election fraud in a legal forum by filing a Petition to Contest the Election under Sections 3431 and 3458 of the Pennsylvania Election Code. This procedure, if the Court accepted she had established a prima facie case—and the Board of Elections vigorously asserts she has not—would have allowed the conduct of a full, court-guided investigation of the election.

The Election Code specifically anticipates allegations of fraud and misconduct, and by statute creates a procedural vehicle to investigate those allegations upon properly presented papers. 25 P.S. §3458. The Code provides for the allocation of costs of an election contest, depending on whether the was supported by probable cause, or not supported by probable cause. 25 P.S. 3469.3470. Ms. Zaffino could have availed herself of the process available in the Election Code. She failed to do so.

The Warren County Board of Elections therefore takes the following position toward Ms. Zaffino’s letter:

  • Ms. Zaffino had the right to challenge the decision of the Board of Elections on the adjudication of specific votes in a legal forum by filing a petition to the Court of Common Pleas under 25 P.S. §3157, and she failed to do so.
  • Ms. Zaffino had the right to challenge the return of the votes to the Board of Elections by filing a Petition for Recount to the Court of Common Pleas under 25 P.S. §3262, and she failed to do so.
  • Ms. Zaffino had the right to challenge the results of an election contest by filing a petition in the Court of Common Pleas and set forth in a legal forum her allegations of fraud under 25 P.S. § 3456, and she failed to do so.
  • Assuming arguendo, Ms. Zaffino’s letter is considered or alleged to be a petition to commence an election contest, Ms. Zaffino’s letter is fatally defective because it was not submitted by twenty voters of the electorate pursuant to 25 P.S. § 3456. Pennsylvania law is clear that a petition for election contest which fails to contain the signatures of 20 petitioners cannot be amended after the 20-day limitation for filing by adding the requisite number of signatures, since the number of signatures is a jurisdictional requirement under 25 P.S. § 3431. In re Philadelphia Democratic Mayoralty Primary Election Contest. 11 Pa. D. & C.3d 381 (1979).
  • Again, assuming hypothetically that Ms. Zaffino’s letter would be construed as a Petition for an Election Contest under the Election Code, in light of the response provided by the County herein, she has not set forth a prima facie case as required by 25 P.S. §3458.

For the reasons stated above, the Board of Elections considers Ms. Zaffino’s letter to have no legal effect under the Election Code. Further, the Court of Common Pleas of Warren County does not have jurisdiction to consider Ms. Zaffino’s letter as an election contest. The Board will defend against any contrary assertion by Ms. Zaffino, and will take no further action in response.

PART III.

CONCLUSION

The Board of Elections interprets the essence of Ms. Zaffino’s Complaint that certain workers and members of the Board sufferered from bias and undue influence, and that these people converted that influence into an orchestration of a badly conducted election in order to induce voter suppression.

In the course of my entire dealings with the Board of Elections during this election season, there was never a single discussion or comment made by anyone of an intent to suppress voter turnout, to engineer the result of any race, or to take any action that would not result in the most fair and accurate election outcome possible.

With no single piece of evidence, the accusation is arguably slanderous. The objective of this statement is not to point allegations at Ms. Zaffino, but to test whether her allegations of bias have any basis in fact. And the answer is, there is none. There is not the beginning of any evidence, there is not reasonable suspicion, probable cause, or the hint of a prima facie case, that voter suppression occurred, or that criminal intent was involved in the events of the general election. 

No matter how sophisticated the machines implemented, an election only has as much integrity as the people who run them. When the machines do not or cannot perform as intended, the integrity of those public officials becomes all the more crucial. At the ends of each of the Election Day, the duplication of ballots, and the adjudication at 1:00 a.m. on Saturday, November 9,2019,1 was humbled by the dedication demonstrated by all the staff, the Board of Elections, Ms. Rivett, the rovers, the judges and the clerks, in difficult circumstances. 

In conclusion, the Board of Elections submits that Ms. Zaffino’s letter, primarily made up of statements of fact shown to be untrue by Ms. Rivett and this letter, and allegations of bias and corruption against county employees and public officials which are unsupported by any other evidence except the inference of intent, do not rise to the level of reasonable suspicion or probable cause which elicit further investigation by your office. The Board requests that it be copied on any communication you make to Ms. Zaffino as to whether you close the current investigation or make a decision not to prosecute.

Sincerely,

Nathaniel J. Schmidt, Esquire
Solicitor for Warren County Board of Elections 

NJS/JME
enc

Cc: Honorable Maureen A. Skerda, President Judge of Warren County Court of

Common Pleas
Warren County Board of Elections
Lisa Rivett, Warren County Director of Elections
Pam Matve, Warren County Chief Clerk
Ms. Connie Zaffino
Pennsylvania Department of State, Elections Division
Warren Times-Observer