The LuLac Edition #4,439, November 18th, 2020

WRITE ON WEDNESDAY

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This week we have a real treat. We give you a first-hand account of the vote counting process in Luzerne County that was observed by a YaleLaw School  professor. The articles gives you an idea of what others think of us.

THE WONDROUS BANALITY OF DEMOCRACY

John Witt

The day before the election, I drove from my home in New Haven, Connecticut to Pennsylvania to serve as a volunteer observer of the mail-in ballot count for the Biden-Harris campaign. I blame the Electoral College. Two hundred and thirty-three years ago, the jury-rigged compromise of the American Electoral College modestly increased the power of smaller states and secured the consent of slave states to the Philadelphia Constitution of 1787. Now, that old compromise radically amplifies the power of a few swing states—and compels volunteers like me to travel to a state where the election will be competitive if we want our efforts to be useful. I am a law professor at Yale, but I have no special election law expertise. For volunteer purposes I was a citizen, and I wanted my civic efforts to matter.

Two days before the election, my organizer assigned me to Luzerne County in northeastern Pennsylvania, population 317,000. (A silver lining of teaching at a university during a pandemic is that I can work from just about anywhere with WiFi.) And so, on Tuesday morning of election day, after visiting with my parents in Philadelphia the night before, I drove up to the city of Wilkes-Barre for my first shift as what Pennsylvania calls a canvass observer.

What followed were two quietly revelatory days. To observe the count was to encounter the inexorable and simple logic of democracy. Democrats and Republicans sat together with civil servants and tabulated votes rationally and deliberately. Tensions, I would learn, had risen in the county in the months preceding the election. Perhaps that was to be expected given that anxieties ran high around the country about this most unusual election. Nonetheless, the count proceeded with care and attention. The count proceeded despite the unprecedented nature of the management challenge. And the count proceeded even though the vote counters in this Trump-leaning county undoubtedly disagreed with one another about what the outcome should be.

Luzerne is a mid-size county in northeast Pennsylvania, twenty miles west of Scranton. The county is eighty percent non-Hispanic white. As a boy I went fishing in the county’s state parks; I’ve kept fishing in the area to this day, mostly just to the south, in rivers renowned for their first-class trout fishing. But the region’s history is really about industry. The region’s geology boasts a distinctive kind of coal called anthracite, which is harder and burns cleaner than the more common bituminous coal. In 1808, a local political leader in Wilkes-Barre named Jesse Fell invented a fireplace grate that allowed for burning the hard coal in home fireplaces. Anthracite became the most prized form of home heating; it was indispensable in iron production, too, thanks to the high temperatures at which it burns.

The anthracite industry grew rapidly for more than a century and made Wilkes-Barre into a wealthy town at the heart of Pennsylvania coal country. The city’s downtown is organized around beautiful Beaux-Arts office buildings and banking edifices from the late nineteenth and early twentieth centuries. Spectacular mansions (now housing non-profits and two local colleges) line the east bank of the Susquehanna River. In the 1920s, however, anthracite began to give way to electricity and other forms of power, and the region’s economic lifeblood ebbed. At its peak in 1930, Wilkes-Barre was home to 86,000 people. Today it has just 41,000. The county’s population has fallen by a third.

Spectacular tragedy capped Luzerne’s industrial decline. In 1959, the anthracite mining works of the Knox Coal Company collapsed beneath the Susquehanna River, five miles upstream of Wilkes-Barre. The river rushed in. A massive whirlpool formed in the river as the river drained through its own bottom. More than 10 million gallons emptied into the mines while men tried to fill the sucking hole with coal, debris, and even railroad cars. Twelve men died in the mines that day. Nearly 10,000 lost their jobs in the weeks thereafter.

Today some surface strip-mining remains in Luzerne. But much of the coal seam remains under water, still inaccessible thanks to the flooding from the great Knox Mine Disaster. Underground mining will probably never resume.

Like other rust-belt counties in the East and Midwest, post-industrial Luzerne has emerged as a bellwether for a certain kind of political transformation in the early twenty-first-century United States. For decades, Luzerne County was a brick in the Democrats’ blue wall. The county voted for Barack Obama twice, in 2008 and 2012, for John Kerry in 2004, and for Al Gore in 2000. Bill Clinton won Luzerne twice.

In 2016, however, the county swung hard for Donald Trump, who beat Hillary Clinton by 25,000 votes, garnering nearly 60 percent of the county’s total. Luzerne quickly became a case study for observers who wanted to understand the Trump phenomenon. Journalist Ben Bradlee, Jr.’s The Forgotten: How the People of One Pennsylvania County Elected Donald Trump and Changed America (2018), a widely-discussed account of Luzerne’s transformation, described the county’s people as “strangers in their own land” (in sociologist Arlie Hochschild’s useful phrase), left behind by capitalism and quietly suspicious of immigration and the federal government. In 2020, Trump would win again: he beat Joe Biden by a slightly smaller margin than he’d beaten Clinton, though with a higher absolute number of votes. Luzerne County, it is fair to say, is a Trump county.

But Luzerne is still a two-party county—there are more registered Democrats in Luzerne than registered Republicans; the mayor of Wilkes-Barre is a Democrat; six members of the County Council are Republicans, five are Democrats—and this election season witnessed more than its share of tempests. In August, the county manager inadvertently thrust the county into political controversy when White House Press Secretary Kayleigh McEnany misleadingly quoted him seeming to express distrust of the county’s capacity to count the votes in November. In September, a temporary worker hired by the county placed nine military ballots in the trash in what county officials said was an accidental mistake. The ballots were recovered and ultimately counted, but not before President Trump held them up as evidence of nationwide voter fraud. (At least seven of the ballots cast votes for the president.)* In early October, Luzerne’s election director sued a county councilman for defamation. (The councilman himself had already pleaded guilty to an unrelated misdemeanor offense.) A month later, a law firm representing the county startled national, state, and county political leaders alike by moving to have new justice Amy Coney Barrett recused in a case challenging the state supreme court’s interpretation of the mail-in ballot deadline. Members of the county council quickly convened and voted seven to four to withdraw the law firm’s filing, after first apparently voting to approve it.

While these controversies played themselves out, the county was gearing up for a challenging season of election administration. In the fall of 2019, Governor Tom Wolf (a Democrat) signed into law Act 77, a bill passed by the Republican-controlled state legislature permitting Pennsylvanians for the first time to cast their ballots by mail as a matter of right, without needing to demonstrate that they would be absent from the jurisdiction. The law passed nearly a month before the first known case of what we now call COVID-19 appeared in China. But the pandemic changed the law’s significance radically when it became clear that 2020’s elections would likely involve processing three million mail-in ballots across the state. In Luzerne alone, Act 77 was likely to mean something on the order of 60,000 mail-in ballots to process in the presidential contest.

All the processing would have to be done fast, and with essentially no practice. Because Act 77 had never contemplated the avalanche of mail-in ballots caused by the pandemic, the law left intact the old absentee ballot rules providing that no ballot should be counted until election day itself. Early in the fall, Democrats in the legislature tried to amend the law to allow the processing of mail-in ballots before election day. Republicans said they would only agree if ballots received after the close of the polls were excluded, including ones that had been postmarked on or before election day. Democrats declined the deal. The result was that Luzerne County—like the 66 other counties in the state—would have to start counting tens of thousands of votes on the morning of election day.

To make matters more complex, pre-election litigation in the courts produced a steady stream of new guidelines from the state supreme court for vote processing. Could counties accept mail-in ballots at drop-box locations other than at the county offices? (Yes, said the state supreme court.) Did the unexpected pandemic count as a disaster or emergency warranting judicial extension under state law of the deadline for receipt of mail-in ballots? (Again, yes.) Did counties have to give voters an opportunity to cure improperly completed ballots? (No.) Were county boards of election required to process so-called “naked ballots,” those submitted without the secrecy envelope inside the mailing envelope? (No.) Were they permitted to count such ballots? (No again.) Did counties have to match voter registration signatures to the signatures on mail-in ballot envelopes? (No.) From the perspective of county administrators, the result was a moving target as election day neared.

My role was an exceedingly modest one. I was a designated representative of Pennsylvania Attorney General Josh Shapiro for the pre-canvass and canvass processes of the 2020 election. Shapiro was running in his own close race for reelection. As such, I was one member of a small team of about eight charged with observing the counting of the mail-in ballots on election day and in the days immediately thereafter.

The process took place in a small, low-ceilinged chamber, Courtroom A, in a 1970s-era courthouse in downtown Wilkes-Barre. The close room felt instantly and palpably like it posed a COVID-19 risk. Later I learned that much of the building’s ventilation had been removed two decades earlier because engineers believed its ventilation to be excessive.

I arrived in the courtroom after the action had officially begun, so it took a while to make sense of what I was watching. A local Democratic Party old-timer and operative helped explain the layout of the room. It hosted several dozen mostly masked people, many of whom (like me) had probably not been around so many other humans indoors since the winter. Press and observers sat or stood in the gallery. County workers sat four or five to a table at six tables in the well of the courtroom. Members of the five-person county board of elections sat in the jury box.

My guide led me through what he called the “lifecycle of a mail-in ballot.”

The process was a compelling mix of simple common sense and intricate design. County staff carried stacks of envelopes from postal bins piled in the jury room and brought them into the courtroom over to a recently-acquired automated envelope slicer—the “envelopener,” as it was known—that opened the outer mailing envelopes of each ballot. Stacks of opened envelopes were transferred from the slicer to the tables, where teams of county workers extracted the still-sealed inner secrecy envelopes from their outer mailing envelopes. Every once in a while, an outer mailing envelope would turn out to contain a naked ballot. Sometimes the inner secrecy envelope bore improper identifying marks. In one instance, the outer mailing envelope turned out to contain multiple naked ballots; perhaps a family had tried to save the county money on business-reply mail postage by stuffing all of its ballots into one envelope. When anomalous ballots were identified, election workers raised their hands to attract the attention of a supervisor, who came over, evaluated the ballot, and set it aside for later adjudication. Rumor in the gallery had it that most of these ballots would be disqualified.

Once secrecy envelopes had been removed from the outer mailing envelope, a staff member carried batches of the newly exposed envelopes back to the envelopener, where a member of the staff ran them through the machine a second time and then returned them to the tables of county workers. There, staff removed the ballots from their protective sleeves, unfolded them, and pressed them into orderly stacks. From where I stood, about ten feet away, I could just see the dark circles indicating the votes. If I squinted, I could tell which presidential candidate had won the vote of any given ballot. I confess a mysterious thrill in those first minutes at being so close to the inky center of the democratic process. But when there are tens of thousands of ballots to count, the thrill wears off quickly.

Once the workers at the tables had prepared the neat stacks of ballots, two IT staff members from the country carried the ballots to one of two scanners—each about the size of a desktop laser printer—that had been placed on the judicial bench at the front of the courtroom. The IT specialists fed the stacks into the scanners. Accompanying screens held information about the scanned ballots, though they were too far away from the gallery to be seen with the naked eye.

In all, the work was repetitive and painstaking. There was a low patter of pleasant chatter, despite the widespread (though not always universal) virus masks. Given that the staff had been thrust together in a pandemic to do laborious work, they seemed remarkably cheerful. All the more so given that they had to work under the watchful eyes of the press and onlooking strangers like me. Some, I heard, had been furloughed because of the pandemic and were happy to have work.

On Tuesday, Luzerne county election workers tabulated 26,612 mail-in ballots between 7 a.m. and 10 p.m., when the county manager sent everyone home. The county estimated that there were about 30,000 more to count; the estimate, which turned out to be a good one, meant that more hands would be needed to get to the finish line by the end of the day. When counting resumed at 8 a.m. Wednesday morning, a judge on the Luzerne County Court of Common Pleas swore in a new group of about two dozen additional county workers to speed the work. He brought a plastic jack-o-lantern of Halloween candy, which helped set an informal and friendly mood. The gallery benches were moved back to clear room for additional tables of ballot processing. And for the next twelve hours the automated envelope slicer whirred while Luzerne county workers went about the numbingly repetitive work of processing outer mailing envelopes, inner secrecy envelopes, and ballots. Perhaps because of COVID fears, the judge’s candy languished.

In the gallery, the scene was buzzy but subdued. The Pennsylvania Democrats team of about eight rotated in and out on shifts such that there were always between two and five Democratic observers in the courtroom at any given time during the two main days of the mail-in count. Press came in and out, too, some of whom had come to the county because of its election controversies over the previous weeks, or because it was one of the notorious Democratic counties that had swung to Trump in 2016. Television news correspondents appeared. Most were dressed carefully from head to waist and indifferently below. They shot footage from the gallery while workers processed votes in the background. An enterprising reporter with Agence France-Presse reported a story in French. A few county residents joined the crowd to watch for a time. As far as I could tell, pretty much anyone could come and go from the gallery as they pleased. Outside, a pickup truck with Trump-Pence flags and a loudspeaker circled the courthouse, blaring anti-Bernie Sanders messages and puzzling warnings about Russia. But inside, the setting was businesslike.

Where the Democratic Party observers had a rotating team and a deep bench, the Republican Party had two stalwart observers with impressive stamina, one of whom was the local Republican Party county chair. The rival observers interacted politely, if perhaps reluctantly, a bit like strangers thrown together in a subway car that has come unexpectedly to a long halt under the East River: friendly but not unguarded, reserved but courteous.

The principal job of the Democratic side on election day itself was to try to help “cure” ballots cast by Democratic Party voters. Throughout the day, the county solicitor’s office collected anomalous ballots and delivered the names and addresses associated with them to the parties’ observers, Democratic and Republican alike. The idea was that the parties could try to contact the would-be voters to give them an opportunity to cure their ballots by going to a polling place and casting a provisional ballot that would replace the anomalous (and possibly invalid) mail-in ballot in question. On Tuesday, the county provided slightly more than one hundred names to the party observer teams. On the Democratic side, we passed such names along to the state party, which did the work of trying to contact voters. Scattered reports suggested that at least some voters managed to appear in person to cure their ballots before the polls closed. (In the end, only a fifth of anomalous mail-in ballots were caught in time for party observers to help voters cure their ballots.) Our Republican Party counterparts seemed less eager to receive the lists of anomalous mail-in ballots, perhaps because Democrats were expected to do better through the mail. But the Republican team participated nonetheless. Cautious good will, generosity, and basic professional decency were essential ingredients of almost the entire experience.

At the eleventh hour, late in the count on Wednesday evening, a new Republican-side observer arrived, apparently representing the Republican congressional candidate. He had cropped short blond hair and wore khakis and an untucked blue, short-sleeve polo shirt with the words “House of Representatives” on the breast. Around his neck he wore a lanyard bearing laminated credentials of some hard-to-see sort. He seemed eager to find evidence of suspicious activities and carried two phones and a clipboard with which to record and perhaps disseminate nefarious doings. He found none. Slightly bemused county solicitor’s office lawyers explained the lifecycle of the ballot to him and pointed out key features of the landscape of Courtroom A. The sheer banality of the counting process and the obvious decency of the dozens of people doing the work seemed to thwart him. He took a minute or two of video, went into the corner to place a few phone calls, and left, saying into his cell phone on his way out that he was headed for Staten Island, where the Republicans were on their way to flipping a House seat.

By the end of the day Wednesday, election workers in Courtroom A had essentially completed the work of counting another 30,000 mail-in ballots, for a total of around 50,000. About one percent of the ballots had been set aside as anomalous. The small size of that fraction was a source of justified pride among the people running the county’s election process. I agreed. But I couldn’t help noticing that one percent of 50,000 was very nearly the number of ballots that separated George W. Bush from Al Gore in Florida in 2000.

I left Luzerne County on the Thursday after the election, but the election process continued for several days thereafter. (Some minor legal wrangling continues even as I write.) Ultimately 674 mail-in ballots were identified as anomalous and taken up by the county board of elections on Monday, November 9. A modest number of ballots were accepted as lawful, like those on which voters had written their birthdays in the place where they were supposed to write the date on which they had completed the ballot. (Postmarks and date of receipt established that they had been cast in a timely manner.) Many more ballots were rejected as spoiled, including more than 500 naked ballots sent without their secrecy envelope. The family that sent their ballots all in one envelope was probably among the disenfranchised. Some partisan dueling broke out over at least some of these ballots, I heard, but the stakes were surely low, because the numbers were tiny.

In the end, President Trump won Luzerne by about 21,000 votes, approximately 86,000 to 64,000. (The numbers are not quite final as of this writing.) But on the Democratic side, the team spun the result as a win. President-Elect Biden won nearly ten thousand votes more than Hillary Clinton had in 2016, closing on President Trump by a couple thousand votes. Luzerne remained red. But like much of the state, it shifted slightly toward blue.

While Luzerne finished out its count in regular order, the national political scene seemed at risk of turning into the circus that has become all too familiar in recent years. The president and his aides angrily insisted that he had won and that the apparent results were simply because of fraud. The formerly respectable Rudy Giuliani appeared with a sex offender alleging election fraud at the unforgettable Four Seasons Total Landscaping in Northeast Philadelphia. Senator Lindsey Graham warned that unspecified Democratic Party fraud would keep the Republicans from ever winning again—while also urging the president to run again in 2024 if he turned out to be unsuccessful this time. Senate Majority Leader Mitch McConnell applauded Republican congressional and state victories in the election while refusing to recognize Biden’s win, notwithstanding that the votes that led to such wins rested on the same underlying ballots.

Some grandstanding took place in Luzerne, too. As national Trump defenders made specious noises about election fraud, the county’s Republican Party chair—who had been generous and thoughtful as an observer—called in the press for a statewide redo on the election. He identified no grounds for his unprecedented proposal. (Philadelphia, where most of the meritless fraud allegations were concentrated, actually produced a smaller margin for Biden than it did for Clinton four years ago.) Small groups of Trump-supporting election protesters appeared outside the Wilkes–Barre courthouse where I had been during the week, shouting about stolen elections through bullhorns. The one arrest for vote fraud in the entire state happened in Luzerne, too. Prosecutors charged a 67-year-old man with forging the name of his mother on a mail-in ballot application. The man is a registered Republican. His mother died five years ago.

Still, the modest clownishness in Luzerne, such as it was, paled by comparison to the carnival of the Trump campaign, the White House, and the national GOP. Here in one contested part of the United States, everyone in the process I observed professed respect for the votes that had been cast. Everyone treated the rules—crafted by the state legislature and interpreted by the state supreme court—as binding guidelines, subject to review by the United States Supreme Court. The real rule of the hour was the implacable iron law of the count. Indeed, the process did not seem partisan so much as organizational. Its central imperative was not to favor one side over another, but to get to the finish line in a way that would not cast the county or its government into controversy or bad repute—and most of all, to do so in a way that would let neighbors respect neighbors after the race was over.

In Courtroom A in Wilkes-Barre, the noise and strife of our national dysfunction faded, replaced by the hum of the vote counters and the gentle clatter of the envelopener.

* An earlier version of this piece said of the Luzerne County ballots thrown in the trash, “All nine ballots apparently cast votes for the president,” yet the candidate chosen on two of the ballots is not known. We regret the error.

John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale and author most recently of American Contagions: Epidemics and the Law from Smallpox to Covid-19.