DOJ releases update in investigation of ‘discarded’ Pennsylvania ballots

Pennsylvania Elections

(AP Photo/Gene J. Puskar)

WASHINGTON – After initially claiming that nine military ballots cast for President Trump were “discarded” in Pennsylvania’s Luzerne County, the Department of Justice issued an updated press release Thursday correcting that number, but not specifying whether or not there was foul play.

The DOJ said in the second statement, a letter from United States Attorney David Freed to Luzerne County election officials, that seven of the ballots were for Trump, but the last two had been resealed so it was unclear who the votes were for.

The FBI and Office of the U.S. Attorney opened an investigation into the ballots after being contacted by Luzerne County District Attorney Stefanie Salavantis.

The fact that the DOJ put out a press release during an ongoing investigation, and went so far as to specify how the votes on the ballots in question had been cast, left many stunned. David Laufman, a former Justice Dept. official, tweeted:

This is both bizarre and disturbing — US 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

President Trump’s administration seized on the news Thursday.

“BREAKING: FBI finds military mail-in ballots discarded in Pennsylvania,” Matt Wolking, President Trump’s deputy communications director tweeted. “100% of them were cast for President Trump. Democrats are trying to steal the election.”

Secrecy envelopes and the ballots

Voters in Pennsylvania have been instructed to use secrecy envelopes when submitting mail-in ballots.

So-called naked ballots have become a huge concern for Democrats in the state since the Pennsylvania Supreme Court ruled last week that ballots had to be rejected if not enclosed in the proper secrecy envelope. The ruling was a victory for President Donald Trump’s campaign in the battleground state.

“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 to Shelby Watchilla, Luzerne County’s director of elections.

Freed called the findings “troubling,” saying only three of the nine ballots can be potentially linked to specific voters at this time.

Military ballots are supposed to be stored securely, unopened until no earlier than 7:00 a.m. on Election Day.

“In addition, our investigation has revealed that all or nearly all envelopes received in the elections office were opened as a matter of course,” Freed wrote. “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 interviews further revealed that this issue was a problem in the primary election–therefore a known issue–and that the problem has not been corrected.”

Freed says the investigation is ongoing.

See the full release from the DOJ below:

Dear Ms. Watchilla:

On Monday, September 21, 2020, at the request of Luzerne County District Attorney Stefanie Salavantis, the Office of the United States Attorney along with the Federal Bureau of Investigation, Scranton Resident Agency, began an inquiry into reports of potential issues with a small number of mail-in ballots at the Luzerne County Board of Elections.

Since Monday, FBI personnel have conducted numerous interviews and recovered and reviewed certain physical evidence.  While at this point the inquiry remains active, based on the limited amount of time before the general election and the vital public importance of these issues, I will detail the investigators’ initial findings.

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.  Specifically, a total of nine (9) military ballots were discovered to have been discarded.  Seven (7) of those ballots when discovered by investigators were outside of any envelope.  Those ballots were all cast for presidential candidate Donald Trump.  One (1) of those seven (7) ballots was able to be identified to an envelope that was recovered, and thereby potentially tied to a specific voter. Two (2) military ballots that had been discarded were previously recovered by elections staff, reinserted into what appeared to be their appropriate envelopes, and then resealed.  Therefore, the votes cast on those two (2) ballots are unknown.  Thus, is appears that three (3) of the nine (9) recovered ballots can be potentially attributed to specific voters.  Six (6) of the ballots were simply removed and discarded, and cannot be attributed to a specific voter at this time.

In addition to the military ballots and envelopes that were discarded and recovered as detailed above, investigators recovered four (4) apparently official, bar-coded, absentee ballot envelopes that were empty. Two (2) of those envelopes had the completed attestations and signatures on the reverse side.  One (1) envelope with a handwritten return address was blank on the reverse side.  The fourth empty envelope contains basic location information and the words “affirmation enclosed” on the reverse side.  The majority of the recovered materials were found in an outside dumpster. 

As you know, the appropriate method for processing received military ballots is to securely store the ballot, unopened, until such time as ballot pre-canvassing can begin, which is in no event earlier than 7:00 a.m. 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.  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.   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.  In addition, our investigation has revealed that all or nearly all envelopes received in the elections office were opened as a matter of course.  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 interviews further revealed that this issue was a problem in the primary election–therefore a known issue–and that the problem has not been corrected.

While the assigned investigators are continuing their work including reviewing additional discarded materials, it is imperative that the issues identified be corrected.  District Attorney Salavantis and I would be happy to meet with you at a mutually convenient time to discuss this matter. Please be assured that the investigators will carefully preserve all documents collected in connection with this investigation.  Our goal, that I am sure you share, is to ensure that every properly cast ballot is counted. 

                                                                                    Sincerely,

                                                                                    DAVID J. FREED

                                                                                    UNITED STATES ATTORNEY

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