The city commissioners’ decision to purchase new voting technology was invalid because two of the three commissioners who approved it were already candidates for reelection by the time the vote was taken, advocates who spent months urging the city to choose an alternative argued Wednesday.

State law forbids commissioners from overseeing an election in which they are running, and are to be replaced by judges once they become candidates.

At issue was the question of when Commissioners Lisa Deeley and Al Schmidt actually became candidates. Both had notified the court system within two days of their Feb. 20 decision on the voting machines that they intended to seek reelection this year.

At a public meeting Wednesday, the advocates said that proves the pair were already candidates at the time of the vote and should have recused themselves and left the decision to their replacements.

“The February 20 vote was and is invalid,” Emmie DiCicco said. She and others urged the third commissioner, Anthony Clark, and the two judges who have since replaced Deeley and Schmidt, to invalidate the decision and start the selection process anew.

“The commissioners had a major, direct conflict of interest,” DiCicco said, because time spent working as a commissioner meant time they could not spend on their reelection campaigns. That incentivized them to rush the selection process, she said, against the public interest: “That deadline was for their benefit.”

Emmie DiCicco speaks to the commissioners at their public meeting Wednesday.
JOSE F. MORENO / Staff Photographer
Emmie DiCicco speaks to the commissioners at their public meeting Wednesday.

“Commissioners Deeley and Schmidt were not candidates when the vote occurred,” said Nick Custodio, deputy commissioner under Deeley.

But at what point are the commissioners considered candidates for reelection?

Michael J. Cooke, the director of enforcement for the city Board of Ethics, pointed to the state Election Code’s provision regarding commissioners.

“Whenever a member of the board of county commissioners is a candidate for nomination or election to any public office,“ the law reads, “the President Judge of the Court of Common Pleas shall appoint a judge or an elector of the county to serve in his stead.”

That does not explicitly say when candidacy status is triggered, and Cooke said he did not know what would be considered candidacy under that provision. He deferred to the Department of State.

Custodio provided a Jan. 23 memo the department sent counties’ elections officials.

“It is the opinion of the Department of State that a person is a candidate for an elective office when the petition for that office, with required accompanying documentation, has been timely filed with the appropriate body,” Jonathan Marks, then the state elections commissioner, wrote in the memo.

Gabriel Roberts, a spokesperson for the Philadelphia courts, said Idee C. Fox, the president judge of the Philadelphia Court of Common Pleas, received a letter from Deeley on Feb. 21 — one day after the vote — declaring her candidacy and appointing Judge Giovanni Campbell that day to replace her. Fox received a similar letter the next day from Schmidt, and the same day appointed Judge Vincent Furlong to replace him.

The advocates said the timing of those requests is a clear sign Deeley and Schmidt were already preparing to run for reelection.

Tim Brown, center, speaks to the city commissioners, Al Schmidt in foreground, during a public hearing on voting machines on Jan. 10, 2019.
CHARLES FOX / Staff Photographer
Tim Brown, center, speaks to the city commissioners, Al Schmidt in foreground, during a public hearing on voting machines on Jan. 10, 2019.

“What would a reasonable person say?” Tim Brown of Philadelphia Neighborhood Networks said after the meeting. His answer: Deeley and Schmidt were accepting contributions and making plans to mount reelection campaigns, making them candidates when they voted for new machines Feb. 20.

Mark Zecca, a former city attorney, agreed and sent a letter Wednesday morning to Clarke, Furlong, and Campbell urging them to invalidate the vote and restart the process.

“Right now the vote is on legal quicksand and throws PA’s election process into doubt,” he wrote.

“You cannot duck this,” wrote Zecca, who spent 20 years as an attorney for the city. “The fact that Deeley and Schmidt voted when they lacked authority does not tie your hands now — quite the opposite — it compels you to correct a fully invalid vote that was a legal nullity.”