The US Department of Justice published, then removed, then re-issued a press release that announced an “inquiry” into nine “discarded” military ballots in Pennsylvania, an unprecedented and unusual move that has worried election analysts and legal scholars as Donald Trump and Attorney General William Barr spread unfounded claims about vote-by-mail fraud.
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Voting rights advocates also argue that the case could stem from a legal battle in which the GOP has sought to invalidate mail-in ballots cast without secrecy envelopes.
On Thursday, David Freed, US attorney for the Middle District of Pennsylvania, announced that the FBI and state police were investigating the case.
The US attorney said the Luzerne County district attorney requested an investigation into absentee ballots mailed by members of the military, who routinely vote by mail.
“At this point we can confirm that a small number of military ballots were discarded,” he announced.
An initial version of the announcement claimed that all nine ballots were cast for the president.
“Of the nine ballots that were discarded and then recovered, [seven] were cast for presidential candidate Donald Trump,” the office said in a revised press release. “Two of the discarded ballots had been resealed inside their appropriate envelopes by Luzerne elections staff prior to recovery by the FBI and the contents of those [two] ballots are unknown.”
But the White House had leaked the announcement hours earlier. Press secretary Kayleigh McEnany, railing against allegations of voter fraud, told reporters that afternoon that “Trump ballots, ballots for the president, were found in Pennsylvania and I believe you should be getting more information on that shortly.”
Despite the lack of clarity in the case, the Trump campaign and Republican allies were quick to blame Democrats.
Matt Wolking, the Trump campaign’s deputy director of communications, said on social media: “Democrats are trying to steal the election.” He later deleted his message.
Legal analysts were stunned that the DOJ and administration would announce an investigation that is in progress, contrary to policy, while also disclosing how the ballots were cast in an apparent attempt to connect the case to the GOP’s baseless claims of widespread voter fraud, what critics believe has sought to undermine Democratic votes ahead of an election that could have a larger-than-usual mail-in ballot turnout.
“This statement by a US Attorney is bananas,” said Walter Shaub, former director of the United States Office of Government Ethics. “It talks about an ongoing investigation, and it reveals the candidates named on ballots. I’m still processing all of the levels on which this is wildly inappropriate.”
Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, called the announcement “political gamery.”
“DOJ doesn’t announce this kind of investigation,” she said. “It certainly doesn’t announce whom ballots were cast for, since that should be immaterial in a voting [rights] investigation.”
Election analysts have argued that the error is more likely attributed to new rules for mail-in ballots to be sealed inside privacy envelopes.
The ballots were returned in envelopes similar to absentee ballot request forms and thus opened by election officials.
Analysts have argued that it’s probable that the ballots did not shield the voter’s information using the mandated secure envelope, a so-called “naked” ballot that has drawn intense scrutiny in the state after election officials warned that thousands of ballots cast may have been invalidated in primary elections this year because of the requirement.
A recent Pennsylvania Supreme Court decision to void so-called “naked ballots” mailed without envelopes that conceal the voter’s identity could cause “electoral chaos” and protracted legal battles, according to a warning from Lisa Deeley, who chairs the Philadelphia commissioners office, in a letter to state lawmakers on Monday.
The decision – part of a series of rulings that extended vote-by-mail deadlines, allowed ballot drop boxes and removed Green Party candidates from the ticket – could force as many as 100,000 votes to be tossed out in a state that Donald Trump carried by just 44,000 more votes than his opponent Hillary Clinton in 2016.
Opponents in the ruling argued that while election laws told voters to use the secrecy envelope, it did not direct officials to discard votes cast without them. Pennsylvania’s Republican Party, however, said that counting those ballots would compromise the vote and encourage voter fraud.
It remains unclear why the exactly the nine ballots were discarded.
“This is an ongoing investigation where there is no public interest reason to override the usual policy of not commenting – and especially not to say for whom the ballots were cast. An unprecedented in kind contribution to the president’s campaign,” said MSNBC election security analyst Matthew Miller. “I know it’s hard for the career people at DOJ, and they are not to blame, but they really do need to fight back and speak up when stuff this like [this] happens. Refuse to participate. Call the House Judiciary Committee. Call a reporter. Everything is on the line right now.”