Judges opinions conflict on fraud evidence for recount requests

In the past month, one Commonwealth Court judge ruled that petitioners must either provide evidence of election malfeasance or file recount requests in every precinct where an election occurred, while another judge ruled in a separate case that recount petitioners do not need evidence.

The confusion stems from two seemingly contradictory sections of the state law. Election officials and petitioners hope that the state Supreme Court will take up the issue to provide clarity.

After the midterm election, voters, many of them organized and encouraged by groups that have promoted conspiracy theories about elections, filed petitions in more than two dozen counties around the state seeking recounts of the votes in their precinct, mostly in the statewide governor and U.S. Senate races.

The petitions were filed under a portion of the Election Code dating back to 1927 that says petitioners only need to state it is their “belief” that fraud or error occurred, and do not need to present evidence.

The petitions caused a delay in some counties certifying their results, leading to the latest state certification in recent years, Dec. 22.

In dismissing several recount petitions, some county judges relied upon a separate provision in the Election Code, this one passed in 2004. That provision states that if petitioners are going to use the 1927 provision, they have to present at least some evidence or file the petitions in every precinct where the election took place.

For petitions seeking recounts in November’s gubernatorial and U.S. Senate races, that would require filing the requests in every precinct in the entire state, a difficult endeavor.

On Feb. 10, Commonwealth Court Judge Christine Fizzano Cannon, a Republican, overturned a December ruling making this argument from Chester County Judge Jeffrey Sommer, also a Republican.

“[A petition] need not either be filed in every election district for a particular election or, in the alternative, allege specific fraud or error,” Fizzano Cannon wrote, adding, “the Trial Court erred by so finding.”

Fizzano Cannon did rule that Sommer was correct in his rejection of the petitions’ request that the recounts be done by hand. (At least one county, Delaware County, reached an agreement with petitioners there to perform the recount by hand, though it was not ordered by a court.)

Rebecca Brain, a spokesperson for Chester County government, said the ruling was “disappointing,” particularly in light of a decision in a Berks County case.

In Berks County, the county GOP committee filed several recount petitions that were rejected by a local judge. The party then appealed the ruling to Commonwealth Court, and Judge Stacy Wallace issued an opinion on Jan. 31 siding with the Berks County judge.

“The Court concludes that Petitioners needed to (1) file their petitions as to each election district in which ballots were cast for the offices in question or (2) plead and offer prima facie evidence that a particular act of fraud or error occurred,” Wallace, a Republican, wrote.

Wallace wrote in a footnote that if the petitioners did not like how the law was written, they should “speak with their legislators,” but that the authors of the Election Code had been deliberate in creating avenues for requesting recounts due to suspected fraud while still protecting the system from abuse.

“Just imagine the chaos if the threshold to allege fraud were much lower,” she wrote.

Wallace also pointed to a statement by former Democratic Gov. Ed Rendell, who said upon signing the 2004 bill that “in order to ensure that all people have their vote counted equally, a candidate will have to seek a recount of all votes cast unless the candidate can claim that a particular act of fraud or a mistake occurred.”

Both the Berks County Republican Committee and the Chester County Board of Elections are asking the state Supreme Court to hear their appeals. Berks County GOP Chair Clay Breece did not respond to a request for comment.

The 2004 recount provision at issue was part of an amendment to an election bill offered by then-state House Majority Leader Samuel Smith (R., Jefferson). While the state House’s legislative journa, a written record of the floor debates and activities of the chamber, contains lengthy debate over portions of Smith’s amendment, this particular provision was not discussed. Smith did not respond to requests for comment.

Ada Nestor helped organize recount petitions in Chester County with a local group, ChescoUnited, that has ties to state and national groups that have promoted conspiracy theories about elections.

She said the idea of filing a petition in every precinct where an election occurred is not physically feasible, since a petitioner must be a qualified voter in that precinct. The goal for her and the other petitioners, she said, was to “spot check” the operation in their area without burdening the whole county or state.

As for the court’s conflicting opinions, she said they do add another layer of confusion.

“Because we thought, ‘OK, we had some finality with our decision,’ but then there’s this other decision,” she said.

The contradictory opinions leave the issue without clarity heading into future elections. Both Fizzano Cannon’s and Wallace’s rulings were “not reported” opinions, meaning that they don’t carry the weight of legal precedent, according to the rules governing Pennsylvania’s courts. That means the question remains unsettled.

Elizabeth Grossman is a senior regulatory counsel at Informing Democracy, a nonprofit focused on the vote-counting process that has been tracking the recount petition issue.

She said that Fizzano Cannon interpreted the two provisions to mean the rules of the 2004 provision applied to the 1927 provision only if the petitioners wanted to pursue additional recount petitions after the initial recount. Grossman called that an incorrect interpretation of the statute and said Wallace’s interpretation that the 2004 restrictions were to apply from the beginning of the petition process was the proper reading.

“Further, Judge Wallace’s analysis of the ‘chaos’ that would ensue were Judge Cannon’s interpretation to be the correct one is spot on,” Grossman said. “This is what these petitioners are after, chaos and uncertainty about election results.”

She noted that the standard for alleging fraud in federal cases is much higher.

“I think election deniers are looking for any opportunity to disrupt the democratic process,” she said. “It is a real threat and something we should all be paying attention to.”

While some judges, advocates, and even some lawmakers have said it may be time to update the law to increase the $50 filing fee or add an evidentiary standard, no such bill has yet been filed in the legislature.

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