The Elections Commission on Dec. 3 was told a federal lawsuit has been filed that names the chair (in his official capacity) and the chief elections officer, and it voted to keep the attorney‑client advice related to that matter confidential.

Deputy Attorney General Jordan Ching told the commission the request for an opinion contained attorney‑client privileged material tied to active litigation; after extended debate, the commission voted in roll call to retain the privilege. The vote outcome recorded six yes, one no and two abstentions on the request to maintain confidentiality.

Plaintiff Peter Berneger, who said he had filed federal lawsuits and criminal referrals, explained he had placed a litigation hold on the USPS election‑mail records (the agency’s so‑called “red binder”) and asserted those postal records do not match state reports. "Those numbers don't match," Berneger said when describing his preservation efforts.

During public testimony dozens of residents urged immediate personnel changes. Multiple speakers called for the removal of Chief Elections Officer Scott Nago and urged the chair to step aside while litigation proceeds. "If he's not doing his job, he should be removed," several testifiers said.

Deputy AG Ching advised the commission that discussing details of active litigation in open session would risk prejudicing the state’s position; he recommended handling legal advice in executive session. Commissioners debated whether the AG’s memo had been inappropriately circulated to Office of Elections staff before the commission had reviewed it; that procedural dispute contributed to the vote on privilege.

What happens next: With the AG opinion retained as privileged, commissioners said they will invite the state auditor and the AG’s office back for further consultation. Commissioners and public speakers also asked that evaluation of the chief elections officer be placed on a future agenda.

Representative quotes: "The red binder ... contains all the political mailings ... and those numbers don't match," plaintiff Peter Berneger said. "Don't throw the ballots out with the bathwater," said former teacher Laurie Tanner in public testimony opposing wholesale elimination of vote‑by‑mail.

The commission said it will consider further process and next steps in future meetings, including possible executive session with the AG and agenda items addressing personnel and ongoing complaints.