Federal authorities are investigating issues with a small number of mail-in ballots that were "improperly opened" and "discarded" in one Pennsylvania county, a US attorney announced Thursday.
In what was seen by political experts as a highly unusual and even inappropriate statement, David J. Freed, US attorney for the Middle District of Pennsylvania, announced that officials were investigating after they recovered nine military ballots for the upcoming general election that were "discarded" at the Luzerne County Board of Elections, including seven that were cast for President Donald Trump.
A letter Freed sent to the county's elections director hours later further clarified that elections staff had "improperly opened" the ballots and "had the ballots removed and discarded, or removed and placed separately from the envelope containing confidential voter information and attestation."
Freed said at this time it appears that three of the nine ballots can be attributed to voters while the remaining six cannot. The seven ballots that included votes for Trump were found without a matching envelope. Of those, just one has since been tied to an envelope, meaning it can be attributed to the voter who cast it.
The other two ballots that had been "discarded" and were recovered by elections staff were reinserted into "what appeared to be their appropriate envelopes," the letter stated. It is not known which candidate those votes were for.
In addition to the nine military ballots, investigators found four "apparently official, barcoded, absentee ballot envelopes that were empty," including two that had completed attestations and signatures and one that had a handwritten return address. The letter stated that the majority of these materials were found outside in a dumpster.
In Pennsylvania, elections workers cannot open mail-in ballots until the morning of Election Day.
Freed said that while investigators are continuing to review the materials, the initial findings of the investigation were "troubling."
"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," he said. "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 a press release emailed to BuzzFeed News on Friday, county officials explained that Luzerne County Elections Director Shelby Watchilla learned on Sept. 16 that "a temporary seasonal independent contractor," who was assigned to sort mail and had just started work two days prior, "incorrectly discarded" the military ballots into the trash. The temporary worker is no longer employed by the elections bureau, the county said.
The elections bureau began sending out the military ballots for the November general election on Aug. 25. The ballots, which are called Uniformed Military and Overseas Voters Act (UMOVA) ballots, are for US citizens living abroad and military voters. Mail-in ballots for the general public are expected to be sent out beginning Oct. 5.
As part of the investigation, the county said that all of the bureau's garbage from Sept. 14 to Sept. 16 was collected and placed into bags in a dumpster secured by county staff.
"Each bag of garbage from the entire building in the dumpster was searched by the Federal Bureau of Investigations, the Luzerne County District Attorney’s Office, Pennsylvania State Police as well as Luzerne County staff," the county said. "All items of concern were taken into custody by the Federal Bureau of Investigations."
The press release also noted that county staff were unaware that the majority of the ballots involved were cast for President Trump until it was disclosed by the US Attorney's Office in its statement Thursday.
Freed said investigators have learned that "all or nearly all envelopes received" at the county elections offices "were opened as a matter of course" due to their similar appearance.
"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," his letter stated.
He said this issue had existed during the state's primary earlier this year but had not been rectified.
Watchilla did not respond to BuzzFeed News' request for comment.
In a statement emailed to BuzzFeed News on Thursday, Chief County Solicitor Romilda Crocamo said Watchilla's findings were immediately reported to authorities after she discovered them last week.
In 2016, Trump won more than 58% of votes in Luzerne County, which has a population of about 317,000 people, according to US Census estimates.
Freed said his office, as well as the FBI, began investigating the issue Monday at the request of the Luzerne County District Attorney Stefanie Salavantis.
Once the FBI returns the ballots to the county, staff will try to contact the voters involved to process their ballots, the county said in the Friday press release. The county encouraged voters who have already mailed their UMOVA ballots to check the status of their ballot on the state's website.
"Luzerne County will be providing supplemental extensive training to both full time staff and temporary seasonal independent contractors and has a security camera in the Elections Bureau to actively monitor and ensure that all staff are strictly adhering to proper procedures and protocols," the county said.
Freed's initial statement, which initially incorrectly stated that all nine ballots were cast for Trump, immediately sparked unfounded claims by the president's campaign that this was evidence that Democrats were trying to steal the election.
But FBI Director Christopher Wray told Congress on Thursday the agency has "not seen, historically, any kind of coordinated national voter fraud effort in a major election, whether it's by mail or otherwise."
"Certainly to change a federal election outcome by mounting that kind of fraud at scale would be a major challenge for an adversary," Wray said.
Freed is a Republican who was nominated by Trump for his position in 2017.
His announcement about the Pennsylvania investigation, including the revelation that most of the ballots involved were cast for Trump, raised concerns for election law experts.
Before Freed's statement was released, White House press secretary Kayleigh McEnany had mentioned the case during a briefing, saying, "Trump ballots, ballots for the president, were found in Pennsylvania, and I believe you should be getting more information on that shortly."
Justin Levitt, a professor at Loyola Law School and a former Department of Justice official, wrote on Twitter: "An investigation here may be reasonable. But there is NO legit reason for: 1) a DOJ press release on a pending investigation, that 2) announces a partial list of unconfirmed facts, including 3) the identity of one of the candidates on specific ballots."
"There's no statute that turns on the identity of the preferred candidate in this context. None," Levitt later told BuzzFeed News in a phone interview. "It’s a fact that does not matter for law enforcement purposes. Either the ballots were treated properly or not, but it does not matter who the votes were cast for. The only reason to include that information is for partisan political purposes."
Levitt pointed to the DOJ's own guidelines, revised in 2017, that investigations by federal prosecutors into election fraud "must be conducted in a way that minimizes the likelihood that the investigation itself may become a factor in the election."
This story has been updated with the information from Luzerne County officials.