By CHRISTINA A. CASSIDY and MARK SCOLFORO Associated Press
HARRISBURG, Pa. (AP) — The news release from a U.S. attorney in Pennsylvania was provocative: Nine mailed-in military ballots had been “discarded” by the local election office in a swing county of one of the most important presidential battleground states.
All of them were marked for President Donald Trump, it said. Then came another news release with key details changed but still little explanation of what had happened and whether investigators believed a criminal act had occurred.
Despite the information vacuum, the White House press secretary told reporters “ballots for the president” had been “cast aside.” The Trump campaign’s rapid response arm pushed out the release from Trump’s own Justice Department under the headline “Democrats are trying to steal the election” — ignoring the fact that the local government, Luzerne County, is controlled by Republicans. Conservative voices used the news release as rocket fuel to amplify the investigation on social media.
Thursday’s kerfuffle and accompanying internet outrage over a handful of ballots is likely a taste of what’s to come in the month left before the presidential election, which is being held amid a global pandemic that has triggered a wave of absentee ballot requests as Trump continues to launch unsubstantiated attacks on mail voting.
It was Trump, after being briefed on the case by Attorney General William Barr, who first revealed publicly that the discarded ballots had been cast for him. He did so in an interview earlier Thursday with Fox News Radio in which he used the investigation to further sow doubt about mail-in voting. The radio interview was hours before the U.S. attorney’s office in Pennsylvania issued its news release about the probe to reporters.
“If past is prologue, we will see more,” said Wendy Weiser, an elections expert and director of the democracy program at the Brennan Center for Justice. “We are in an unprecedented situation where a sitting president of the United States and a candidate for reelection is and has long been actively seeking to undermine the election and discredit it.”
Weiser said it was important that officials provide detailed information about any voting issues that arise, which happen every election cycle. For instance, officials with the U.S. Postal Service said this week they are investigating a report that an unknown number of ballots were among other mail found in a ditch near a highway intersection in Wisconsin, another presidential battleground state.
Officials have so far released little information in that case, including whether the ballots were blank and on their way to voters or if they had been completed and were being returned to the local election office.
Experts say the lack of information in these cases opens the door to speculation and conspiracy theories.
By Friday, more details had emerged in the Pennsylvania case. Federal officials were considering whether a recently hired, temporary election worker may have mishandled the ballots. Aside from the unknowns about the investigation itself, questions persist over how the Justice Department handled the matter.
The first word of a federal investigation into unspecified “issues with a small number of mail-in ballots” came in a statement Tuesday by the local district attorney in Luzerne County. There was no mention of Trump, and there was little attention to the case beyond local news reports.
That all changed when the office of U.S. Attorney Dave Freed issued Thursday’s statement, an unusual step given U.S. Department of Justice guidance to refrain generally from commenting on any investigation — especially one involving an election in which voters already are casting ballots. In addition, the mention of which presidential candidate the ballots favored raised concerns among election law experts and voter advocacy groups (ballots include races for all kinds of offices and issues, not just the race for president).
The U.S. attorney’s office in Pennsylvania notified senior officials at Justice Department headquarters earlier this week about a small number of ballots that were found to be discarded, a person familiar with the matter told The Associated Press. Barr told Trump that the Justice Department was going to look into the matter before the department publicly confirmed the investigation, the person said.
The U.S. attorney’s office had received inquiries from local reporters about the ballots, the person said, and released the statement — which included specific details about the ballots — after Trump revealed the existence of the investigation in the interview with Fox News Radio. The person could not discuss the investigation publicly and spoke to the AP on condition of anonymity.
The Justice Department is permitted to advise the White House of pending investigations or cases, but according to a memo dictating the scope of such contacts, that notification is to be made “when — but only when — it is important for the performance of the President’s duties and appropriate from a law enforcement perspective.” The memo acknowledges that such communication may be more regular when it comes to matters of national security, such as a terrorist attack.
“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.”
The number of public Facebook and Instagram posts mentioning the discarded ballots quickly skyrocketed, receiving nearly 900,000 interactions — likes or comments — in less than 24 hours, according to Facebook’s CrowdTangle, which tracks public posts.
Many of the most popular posts about the discarded ballots were made by the Trump campaign, pro-Trump accounts or conservative news outlets and used to support the doubts Trump has cast on the mail-in voting process. Notably, the ballots involved were from military personnel, who are sent their ballots earlier than other voters in every election.
Freed, a Republican nominated by Trump, said in a letter sent late Thursday to the local elections office that the FBI had recovered nine military ballots from a trash bin. Seven of them were completed ballots without the envelopes voters had mailed them in, and all were cast for Trump. The two other ballots had already been put back into envelopes by unnamed elections workers, Freed said. Four other empty absentee ballot envelopes also were recovered.
Freed said Pennsylvania law prohibits elections offices from opening mail-in ballots before Election Day. Investigators were told that the military mail-in envelopes and absentee request envelopes were so similar that election workers “believed that adhering to the protocol of preserving envelopes unopened” would result in them missing ballot applications, so they opened them.
It still wasn’t clear, however, how or why they ended up in the trash. A statement by the county manager on Friday characterized it as “an error” discovered by a public servant and reported to law enforcement.
When asked why he disclosed information about which presidential candidate the voters supported, Freed said in an email to the AP that the ballot information was factual and it was “vital that voters who have sent in military ballots are informed of the possibility that their ballot was opened and discarded.”
J.J. Abbott, executive director of Commonwealth Communications, a liberal advocacy group, said he was concerned that Freed provided information about the Trump ballots without much context about what had occurred.
“I just think, given how highly charged the rhetoric, particularly from the president, has been about mail-in voting, it’s highly concerning given the lack of detail provided,” Abbott said.
Cassidy reported from Atlanta. Associated Press writers Mike Balsamo and Eric Tucker in Washington; Scott Bauer in Madison, Wis.; Anthony Izaguirre in Lindenhurst, New York; and Amanda Seitz in Chicago contributed to this report.
AP’s Advance Voting guide brings you the facts about voting early, by mail or absentee from each state: https://interactives.ap.org/advance-voting-2020/