Supreme Court asked to decide recount cases

Conflicting decisions by judges on the state’s Commonwealth Court have left a trail of confusion in how petitions for recounts of ballots in elections can be approved by a court, attorneys for the Chester County Board of Elections contend in their request for a review of the matter by the state’s highest court.

In a petition for allocator filed last month in the case of requests by more than a dozen county residents for checks of the election results from November 2022 in multiple precincts across the count, attorneys said that a decision overturning a county judge’s decision to reject the recount petitions is directly at odds with a prior ruling in a Berks County case.

On Feb. 10, Commonwealth Court Judge Christine Fizzano Cannon ordered that the decision by Common Pleas Judge Jeffrey Sommer denying the recount petitions should be vacated and returned for further hearings.

Fizzano Cannon had ruled that Sommer improperly conflated two sections of the state’s Election Code that govern recounts. Sommer had ruled that the petitioners must either show evidence that fraud or error occurred in a specific election, or they must file their petitions in every precinct involved in the election — in this case, statewide offices for governor and lieutenant governor and U.S. senator.

The judge said no such requirement was necessary for a recount until the ballot boxes are opened.

But prior to that ruling, another Commonwealth Court judge, Stacy Wallace, had ruled the opposite — that the petitioners would have to show fraud or error or file statewide — against a petition for recounts filed by the Berks County Republican Committee.

To clear up the confusion, Chester County Solicitor Coleen Frens and Assistant Solicitor Faith Maddox-Baldini,

representing the elections board, asked the state Supreme Court to intervene and decide which interpretation of the Election Code is correct.

Until that time, the attorneys say, confusion will abound. The county contends that Fizzano Cannon erred in her decision. Meanwhile, the additional hearings she ordered Sommer to conduct are on hold.

To Frens and Maddox-Baldini, the current state of that law is that, in Berks County, to obtain a

recount of a statewide race in all election districts, those requesting one are required to provide prima facie evidence of fraud or error or else file their petitions in every election district in which ballots were cast for the race. Meanwhile, in Chester County, any three qualified electors can obtain a recount of statewide races by generally alleging unspecified fraud or error without any prima facie showing.

The (Chester County Board of Elections) is hindered in its efforts to administer free and fair elections when appellate courts issue conflicting and, in this case, opposite interpretations of the law regarding a question of great importance, such as who can seek a recount of an election and what is necessary for such burdensome and extreme relief to be granted,” the petition to the Supreme Court, filed Feb. 21, reads. “Therefore, the Court should exercise is discretionary review to provide clarity on this issue.

“To leave this unresolved would result in confusion and different rules of law county-to-county that will also have an effect statewide,” the county solicitors state. “Importantly, the effect of these recount petitions is not limited to only the county in which they are filed. These recounts could be of statewide offices, as they were in the present appeal. The result of this is that, because of the conflicting Commonwealth Court opinions, even if both are unpublished, registered electors in Chester County can force recounts of statewide races with a much lower burden than any other county.”

In the Chester County cases, Joseph DiGuglielmo, the attorney for the petitioners — from in Birmingham, East Bradford, Kennett, Tredyffrin, West Goshen, West Pikeland, Willistown, Upper Uwchlan and Uwchlan — told Sommer at a hearig in December that while his clients did have evidence of fraud or error, he would not disclose it until after the ballot boxes had been opened and the individual recounts completed.

But he also said that his clients — some of whom had complained about the county’s election process at meetings of the elections board and the county commissioners — were not seeking to overturn the results of any elections. Rather, they seek to “audit” the way the ballots are received and counted.

The Supreme Court has not, as of Friday, granted the county’s request for review. It is also considering a similar request made by the Berks County GOP.

Sommer