DV Journal

In a sharp rebuke to a lower court and the Chester County Board of Elections, Commonwealth Court Judge Christine Fizzano Cannon on Friday overrode its refusal to recount ballots as requested by petitioners after the November 2022 election.

“The Trial Court did not schedule a date and time for the opening of the ballot boxes as required. Instead, the Trial Court entered an order scheduling a ‘hearing,'” Judge Cannon wrote.

Instead of following the recount statute, Judge Jeffrey Sommer scheduled a hearing on the petitions and invited the Chester County Board of Elections–comprised of the County Commissioners–to respond to the recount petitions. Rather than moving forward with the recount, the Democratic-controlled Board of Elections objected and instead declared the election certified.

But as Cannon ruled, “Our Supreme Court has explained that boards of elections improperly certify election results while timely and properly [sic] petitions to open the ballot boxes are pending.”

That was the case Chester County Republican Commissioner Michelle Kichline made at the time. As an attorney, she said she reviewed the law governing elections before voting against certification while her two Democratic colleagues voted to certify it.

“Once those petitions are filed by voters, it stops the process,” said Kichline. [Democrat] Chester County Commissioners Josh Maxwell and Marian Moskowitz filed a brief in the statewide appeals court, repeating their arguments and continuing to fight to prevent recounts that would verify the accuracy of reported election results. At the same time, the Pennsylvania Department of State and Acting Secretary of the Commonwealth,  Al Schmidt, filed an uninvited brief also arguing that the petitioners should be required to allege a particular act of fraud or file petitions in every precinct in Pennsylvania.

When Sommer was considering the petitions for recounts, he demanded the petitioners produce some evidence of fraud in the election. Again, Judge Cannon wrote, he erred. The recount statute states that “[i]t shall not be necessary for the petitioners to specify in their petition the particular act of fraud or error which they believe were committed, nor to offer evidence to substantiate the allegations of their petition.”

After the hearing, Sommer rejected the voters’ petitions “with prejudice,” meaning they could not be filed again.

As for “prejudice,” that was what the petitioners said they encountered in Sommer’s courtroom. When presented with polling results that showed that 52 percent of American voters believe the 2020 election was fraudulent, Sommer said, “Well, they’re wrong. We know that. We know factually, even Republicans know that factually. . . Well, you may not, and the QAnon people may not, but people know.”

Ada Nestor, a voting rights activist who helped organize the petitions, noted that the voters do not need to allege fraud under the law. There must only be three voters from a precinct.

“It was disappointing to see the law misunderstood by Judge Sommer and by Democrats Moskowitz and Maxwell,” said Nestor, “as well at the Republican secretary of state, who also filed his brief with the Commonwealth Court.” Moskowitz and Maxwell are running for re-election.

She expects ballot boxes in the precincts under appeal will be opened and a recount conducted, which will either find the results are correct or are “unreconcilable.”

Kichline made the point the process was violated, and that was the key issue in the dispute, not the petitioners’ views on ballot security. She noted there were also petition challenges in neighboring Berks County which did follow the law and refrained from certifying its election. Eventually, a judge denied those petitions.

“I think it’s our obligation as a Board of Elections to follow the law,” said Kichline.  “We couldn’t certify the election until after the judge had a hearing and made a ruling,” she said. And Judge Sommer would not hear the case until the following week. “It was very, very clear to me that we couldn’t certify the election ahead of Judge Sommer having his hearing. I’m pleased to see that the Commonwealth Court reviewed this. There is very clear law and very clear procedure.”

Joseph DiGuglielmo, the lawyer for the voters, said, “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 Pennsylvania Department of State and the county commissioners (who also sit on the county boards of elections) for 26 counties where recount petitions were filed, have fought against the voters of Pennsylvania and objected to the exercise of their rights under the election code.

“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, he added. “The Commonwealth Court ordered the Chester County Court of Common Pleas to commence the recounts, which will likely start and finish within one day.”

“The Commonwealth Court ruling about petitions for recount is disappointing, especially in light of the Berks County decision.  The Chester County Board of Elections is reviewing the court’s decision before considering the next step,” said Rebecca Brain, a spokeswoman for Chester County.

Kichline disagreed.

“I think it’s our obligation as a Board of Elections to follow the law,” said Kichline.  “We couldn’t certify the election until after the judge had a hearing and made a ruling,” she said. And Judge Sommer would not hear the case until the following week. “It was very, very clear to me that we couldn’t certify the election ahead of Judge Sommer having his hearing. I’m pleased to see that the Commonwealth Court reviewed this. There is very clear law and very clear procedure.”

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