Recount battle continues in Chesco

The legal battle over demands for recounts of Chester County results in last November’s mid-term election is continuing.

On Feb. 10, a Commonwealth Court judge ordered that a decision by a county Common Pleas judge be vacated and returned for further hearings after determining that the results had been imprOperly certified by the county Board of Elections.

Judge Jeffrey Sommer had ruled in December that petitions by voters in several county precincts did not meet the requirements to have the ballot boxes opened and their results counted by hand to determine whether their had been any “fraud of error” in the process.

But Judge Christine Fizzano Cannon said I her 22-page opinion that the petitions should have been considered in full before the county certified its results. The county did so on Nov. 28; Sommer

did not hear the petitions until Dec. 5.

“Here the Board of Elections improperly certified the election results while the petitions remained outstanding,” Cannon wrote. “Accordingly, the matter is not motto and in the event the trial court is satisfied, by hearings or otherwise, that the petitions meet (the legal requirements for a recount), it shall schedule the opening of the ballot boxes in question and recount thereof.”

The county issued a statement indicating that it may challenge the decision, noting that another Commonwealth Court judge had dismissed a similar recount petition in Berks County.

Judge Stacy Wallace, in a decision issued last week, said the rules to allege election fraud were not followed by the Berks County challengers. In particular, Wallace wrote, the GOP committee that issued the petitions did not file them for each precinct in the county where votes were cast for the races in question, and they did not provide evidence that a particular act of fraud or error occurred.

Sommer had made similar findings in his ruling.

“The Commonwealth Court ruling about petitions for recount is disappointing, especially in light of the Berks County decision,” county spokeswoman Rebecca Brain said in an e-mail last week. “The Chester County Board of Elections is reviewing the court’s decision before con

sidering the next step.”

The petitions were filed by more than 30 voters in 11 precincts across the county — in Birmingham, East Bradford, Kennett, Tredyffrin, West Goshen, West Pikeland, Willistown, Upper Uwchlan and Uwchlan. Filed in boilerplate style with spaces left for voters to fill in the blanks, the petitions sought a hand recount of ballots because of in the election.

All but one of the petitions focused on the election for governor, in which state Attorney General Josh Shapiro and his running mate for lieutenant governor, state Rep. Austin Davis, won the state margin. The other petition sought a recount in the races for U.S. Senate, the 6th Congressional District, and the 157th Legislative District in Tredyffrin’s Middle-4th precinct.

In their motion asking that Sommer set aside the petitions prior to any hearing on the validity of their claims of fraud, county attorneys for the Board of Elections contended that the voters had cast too narrow a net in their claims. To be successful in asking a court to condone a recount because of fraud, state law requires that petitions must be filed in all of the precincts involved, not just one, unless they openly state evidence of a particular act of fraud or error that occurred, they sayid. None of them did.

So, unless the petitioners can point to something specific, the solicitors claimed, they must file their petitions in every precinct in the state or county, of which there are more than 9,000 in Pennsylvania and 230 in the county. In addition, those asking for the recount would have to pay a separate filing fee of $50 for each petition, or more than $450,000.

“Simply put, the petition is legally flawed because it generally alleges fraud in connection with certain offices but did not file a petition in each election district nor post the appropriate money or bond,” wrote assistant solicitors Colleen Frens, Keith MattoxBaldini, and Nicholas Stevens in their motion to dismiss the challenge from votersIn Chester County, some of those involved in the petitions are among those election critics who have been besieging the commissioners for months with demands for forensic audits of election results which they contend are flawed.

But as Sommer noted, when asked what fraud may have occurred in the election, an attorney for the petitioners said that although his clients had evidence of such, they were not prepared to divulge anything publicly. Only after conducting a review of the ballots in the 11 precincts would they say what they had allegedly learned.

Indeed, according to Sommer in his opinion, attorney Joseph DiGuglielmo acknowledged that his clients were not seeking to overturn the results of the Nov. 8 election, but rather to gain access to the ballot boxes for they could conduct an audit of the procedures used by the county to process the votes. He said the attempts to get an audit conducted by the county had been “sandbagged” by the Board of Elections, although he did not specify how.

DiGuglielmo, “boldly asserted without identifying the source of the information that in ‘recent polls 52 percent of Americans’ believed that elections were fraudulent,” the judge wrote. The petitioners wanted the “hand recount” of ballots to be overseen by five of their supporters who would then use the results to challenge the results of balloting in every county across the state.

The petitioners, Sommer wrote, “seek to take advantage of statutory language in order to open the ‘ballot box’ for (them) to ‘audit’ the votes, even though there is no authority for that course of action in the state’s Election Code.”

In his reaction to the decision, DiGuglielmo said in a statement, “I would hope that those politicians who have a duty to administer elections would welcome the opportunity to demonstrate transparency, integrity, security, fairness, and honesty in our elections. But they are doing just the opposite.

“The key takeaway from the Commonwealth Court’s decision, which agreed with the petitioner’s interpretation of the recount statute, is that the Pennsylvania Department of State and county commissioners around the commonwealth cannot intentionally misinterpret the Election Code to shield their administration of elections from public scrutiny.”

To contact staff writer Michael P. Rellahan call 610-696-1544.