‘An unprecedented situation’: Loose ends remain in Fulton County election review

A court likely will have to decide whether information about the funder and cost is released, open records experts say

By: - Sunday October 31, 2021 7:58 am

‘An unprecedented situation’: Loose ends remain in Fulton County election review

A court likely will have to decide whether information about the funder and cost is released, open records experts say

By: - 7:58 am

Maricopa County ballots from the 2020 general election are examined and recounted by contractors hired by the Arizona Senate in an audit at the Veterans Memorial Coliseum in Phoenix on May 11, 2021.

Maricopa County ballots from the 2020 general election are examined and recounted by contractors hired by the Arizona Senate in an audit at the Veterans Memorial Coliseum in Phoenix on May 11, 2021.

In December 2020, a Republican state senator approached Fulton County Elections Director Patti Hess about conducting an election review.

Days later, Wake Technology Services, Inc. — a West Chester-based company with no experience auditing elections — spent an afternoon in the rural county recounting 954 mail-in ballots and reviewing data from voting machines.

“They just got done. They will send us a report. Everything seemed to go well,” Hess wrote in a Dec. 31 group text to the county commissioners and chief clerk.

“Who did that?” Paula Shives, the lone Democrat on the board of commissioners, asked.

“Sent by [state] Senator [Doug] Mastriano [R-Franklin] all counties are to do this or be subpoena[ed] to prove votes,” Hess replied, including contact information for Wake TSI co-founder Gene Kern.

Records obtained through a Right-to-Know request and released this month by American Oversight, a left-leaning government watchdog, confirm previous reports that Mastriano helped coordinate the review, with assistance from state Sen. Judy Ward, R-Blair.

They also reflect a miscommunication, documented later in Feb. 5 meeting minutes, between the Fulton County commissioners — two Republicans and one Democrat — about their compliance with the probe. 

A document submitted to county officials states that Sen. Doug Mastriano, R-Franklin, coordinated the Wake Technology Services, Inc. election review in Fulton County. Wake TSI was contracted to a group founded by pro-Trump lawyer Sidney Powell.

Ward has maintained that she approached Fulton County about the review at the request of Mastriano, who furthered unsubstantiated claims that fraud contributed to former President Donald Trump’s loss to now-President Joe Biden.

But questions remain about who authorized and funded the post-election evaluation in a county where nearly 86 percent of voters cast their ballots for Trump, and how much it cost.

A judge will likely have to decide whether that information is released, open records experts say.

‘Approved? It’s not in the minutes’

Fulton County Government meeting agendas and minutes leading up to the Dec. 31 review show no record of discussion or approval for the third-party assessment.

The Pennsylvania Sunshine Act requires state and local agencies to deliberate and take formal action on business in an open and public setting.

Meetings must have prior notice, so the public can attend and provide comments before officials take action.

Agencies that fall under the law must record the time, date, and place of meetings, who attended, what was discussed, and how participants voted. A quorum must be present for members of an agency to discuss official business and hold a formal vote.

“Approved? It’s not in the minutes! There was no vote on this,” Shives wrote to her colleagues, referring to a formal decision on the review being carried out.

However, Republican Commissioners Stuart Ulsh and Randy Bunch wrote in the group message that the review was approved during an earlier meeting. Ulsh said he asked Bunch to supervise the analysis in his place. Ulsh and Bunch serve as board chair and vice-chair, respectively.

“And on a good note, they didn’t find one thing wrong and praised our team, meaning [Patti] and our staff, on how organized everything was done,” Bunch wrote in the group message.

Ulsh added: “It was happening this way or in a [subpoena].”

Records obtained through a Right-to-Know request and released by American Oversight, a left-leaning government watchdog,  reflect a miscommunication, documented later in Feb. 5 meeting minutes, between the Fulton County commissioners — two Republicans and one Democrat — about their compliance with the Wake TSI review.

Hess apologized for the miscommunication and assured Shives that she documented the review, sharing a signed document that states Kern, Bunch, Hess, and Eldon Martin, the county technology director, attended the inspection. The Arizona Mirror, a sibling site of the Capital-Star, first reported the document in May.

At the bottom of the document, a handwritten note says: “Senator Mastriano set this review of Fulton [County’s] voter system and mail-in ballots. Wake TSI is contracted to Defending the Republic, a 501(c)4.”

Sidney Powell, a pro-Trump lawyer who helped file lawsuits to challenge the 2020 election, founded Defending the Republic, a conservative nonprofit.

Wake TSI also helped count ballots in the GOP-backed election review in Arizona but left the count in May, the Arizona Republic reported. A spokesperson for Defending the Republic did not respond to an email seeking comment.

Mastriano did not respond to repeated requests for comment.

Before being replaced by Sen. Cris Dush, R-Jefferson, as chairperson of the Senate Intergovernmental Operations Committee, Mastriano initiated a “forensic investigation” of the 2020 general and 2021 primary elections in Pennsylvania. The 11-member panel is still pursuing the probe, but it is tied up in court.

Ulsh, Bunch, Shives, and Kern did not respond to requests for comment. Hess instructed the Capital-Star to file a Right-to-Know request.

‘Seems the Legislature wants to do them also in subpoenas’

On Jan. 1, Kern requested copied tabulation sheets for review from Hess. He also asked if coming back to Fulton County to inspect absentee ballots was a possibility.

“Seems the Legislature wants to do them also in the subpoenas, and I do not want you folks to be in that category if all we need to do is count the absentee ballots for you,” he wrote.

The commissioners discussed the review the following week, according to Jan. 5 meeting minutes, which also include details about a Dec. 29 conversation between the board leading up to the review.

At the February meeting, the board voted on granting the company access to absentee ballots. Bunch and Ulsh voted in favor of the motion. Shives opposed, saying that “anyone wanting to review election materials should go through the legal process and obtain a subpoena.”

On Feb. 10, 2021, Wake TSI co-founder Gene Kern sent an email to Republican Commissioners Stuart Ulsh and Randy Bunch, asking for their personal email addresses. According to records obtained by American Oversight, Ulsh complied.

After the meeting, Hess emailed Kern and requested a subpoena, citing the board’s disagreement.

“It seems that we would only do it if there is a congressional subpoena,” Kern replied nearly 45 minutes later. “I am not sure how the subpoena would work or what it looks like (lawyer stuff). I am just organizing the actual work, not making the decisions.”

On Feb. 10, Kern sent an email to Ulsh and Bunch, asking for their personal email addresses. According to records obtained by American Oversight, Ulsh complied. That same month, Wake TSI submitted a draft report to Fulton County officials that said the election was “well run” and “conducted in a diligent and effective manner,” according to a copy of the draft report obtained by the Washington Post.

However, the final version posted to the county website in May includes a stipulation to Wake TSI’s findings.

“This does not indicate that there were no issues with the election, just that they were not the fault of the County Election Commission or County Election Director,” the final report states.

The final Wake TSI report posted to Fulton County’s website in May includes a stipulation to the company’s findings.
“This does not indicate that there were no issues with the election, just that they were not the fault of the County Election Commission or County Election Director,” the final report states.

Biden won the 2020 election by 80,555 votes in Pennsylvania. But in the months leading up to the Jan. 6 rally at the U.S. Capitol, where rioters stormed the complex in an attempt to derail certification, supporters of the former president called for further review.

On Nov. 10, 2020, a group of 26 House and Senate Republicans — barely a fifth of all GOP lawmakers — called on the General Assembly to delay the certification of Pennsylvania’s electoral results until they could conduct an audit. About a week later, their efforts for a legislative review fizzled out.

On Nov. 25, 2020, legislative Republicans joined Mastriano for a hearing in Gettysburg. Trump’s attorney Rudy Giuliani attended and furthered unsubstantiated claims of fraud. Trump called in, telling attendees: “We have to turn the election over.”

In December and January, GOP lawmakers asked Pennsylvania’s Congressional delegation for objections to the electoral results. According to emails obtained by the Washington Post, Ward and Dush contacted some Pennsylvania counties about auditing the 2020 election results.

A House GOP spokesperson told the Capital-Star he was not aware of any caucus negotiations with Wake TSI. Jason Thompson, a spokesperson for Senate President Pro Tempore Jake Corman, R-Centre, did not respond to requests for comment about the Fulton County review. 

Corman also did not respond to a request for comment.

In September, Ulsh testified before the Senate Intergovernmental Operations Committee. He faced questioning from Democrats about the Wake TSI review, including its funder, cost, and who in the General Assembly approached Fulton County about complying with the probe.

Ulsh, who could not confirm whether other county employees spoke with members of the General Assembly about the review, said he engaged with Ward.

Ward, who did not respond to a request for comment, said Wake TSI could conduct the review, Ulsh testified. He added that he was not aware of Mastriano’s involvement “until after the investigation was done and the report [came] out.”

When it came to paying for the review, Ulsh said he wanted to ensure that Fulton County taxpayers were not responsible for the cost. He added that he offered to help finance the analysis.

“And what was the response?” Sen. Steven J. Santarsiero, D-Bucks, asked.

“You don’t need to worry about it. It’s paid for,” Ulsh said. He did not expand on who gave that response.

Answering questions asked by Sen. Anthony Williams, D-Philadelphia, Ulsh said the county does not have a record of how much the review cost, saying that it did not come from county funds.

Fulton County Board of Commissioners Chairman Stuart Ulsh, a Republican, testifies during a Senate Intergovernmental Operations Committee hearing on Thursday, Sept. 9, 2021.

At the time, Williams, the ranking Democrat on the 11-member Senate panel, called Ulsh’s answer “troubling. When he could not tell lawmakers where to find the information, Williams said his response was “shocking.”

He added: “[That] is a significant issue in the public domain … if we as public officials cannot identify what that kind of cost was, who paid for it, there is implicit in that. There is [a] potential conflict of interest.”

Ulsh said the final 93-page report from Wake TSI names the funder. He declined to comment on the draft report, saying his email was “hacked” and that information included in the draft was not public information. But after unsuccessful attempts from staff to locate the details, Dush, who chairs the committee, asked Ulsh to provide the committee with the information after the hearing.

It’s been nearly two months since Ulsh’s testimony, and Santarsiero’s office told the Capital-Star that questions presented during the hearing have gone unanswered. Thompson, also the spokesperson for the Senate committee, did not respond to requests for comment about whether Ulsh relayed information about the funder.

The final report says that Ward and Mastriano “were aware” of the Wake TSI review.

‘This is just such an unprecedented situation’

Fulton County did not contract directly with Wake TSI for the analysis, and officials have maintained that an outside funder paid for it. The third-party review prompted acting Secretary of State Veronica Degraffenreid to decertify the voting machines in July, leaving Fulton County with the bill to replace the machines. 

On July 8, Degraffenreid issued a statewide directive prohibiting third-party access to electronic voting machines. The department order came one day after Mastriano, who was then leading the Senate investigation, sent letters to Philadelphia, York, and Tioga counties with a sweeping request for election equipment and voting records for a third-party investigation.

State Rep. Jesse Topper, R-Bedford, Mastriano, and Ward joined Ulsh in Fulton County over the summer, railing against Degraffenreid’s order and the decertification of county machines. In August, Fulton County filed a lawsuit in Commonwealth Court, asking the court to reverse the Department of State’s directive.

County officials have argued that the Wake TSI review did not compromise election equipment. However, the Department of State, a government agency with election oversight, and Dominion Voting Systems said there was no way to affirm that the equipment met state and federal requirements after the third-party inspection.

“These actions were taken in a manner that was not transparent,” Degraffenreid wrote in a July 20 letter to Fulton County.

According to Sept. 7 meeting minutes, the Fulton County Board of Commissioner unanimously approved a motion to lease voting equipment for the upcoming November election, with the option to buy in January 2022 for $169,032.

A spokesperson for the Department of State told the Capital-Star this week that Fulton County has not provided the agency with information about who paid Wake TSI’s bills or their amount.

Office of Open Records Executive Director Liz Wagenseller told the Capital-Star that if questions about the funder and cost become public, a judge will likely be the deciding factor.

“This is just such an unprecedented situation, having someone fund a private firm’s actions. There’s no [memorandum of understanding], as far as I understand, with the county,” Wagenseller said. “So, I think that attempts to discover the identity of the funder or the details of the contract that they have — there’s not an obvious precedent in the Right-to-Know Law — and the courts might be the place where that would finally be addressed.”

The Office of Open Records, a state agency tasked with enforcing the Right-to-Know law, considers whether something is related to county business, if it was authorized, and if it required county employees to execute the action, Wagenseller said.

“If the answers to those questions are yes, then the records created by the county are subject to the Right-to-Know Law — not necessarily public,” she said, adding that the materials undergo the investigative process. “Putting the contract aside, I feel like that’s solid. But then you get into the contract issue between the private firm and the unknown funder. That is completely unchartered territory.”

Melissa Melewsky, media law counsel at the Pennsylvania NewsMedia Association, said the situation in Fulton County falls under a provision in the Right-to-Know Law that says records of a government contractor are public when they “directly relate to the contract services.”

“I would argue that records that show who paid for or how much was paid for this government contract, this contractual work, should be public under the Right-to-Know Law,” Melewsky told the Capital-Star. “And I would argue that it’s the county’s responsibility under the Right-to-Know Law to facilitate access to that information.”

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Marley Parish
Marley Parish

A Pennsylvania native, Marley Parish covers the Senate for the Capital-Star. She previously reported on government, education and community issues for the Centre Daily Times and has a background in writing, editing and design. A graduate of Allegheny College, Marley served as editor of the campus newspaper, where she also covered everything from student government to college sports.

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