The PA Supreme Court Reverses the PA Commonwealth Court Decision to Allow Midterm Election Recounts
- ericpbeyer
- May 10, 2023
- 4 min read
Updated: Apr 3
The Chester County Board of Elections (BOE) appealed the ruling by the Commonwealth Court (See below). The PA Supreme Court reversed the Commonwealth Court decision without accepting briefs from the citizens of Chester County.
Why did the Chester County BOE appeal the case to the PA Supreme Court and block voters from checking their processes?
What is the Chester County BOE hiding?
Justice Brobson's Dissent (Repeated below)
CONCURRING AND DISSENTING STATEMENT
JUSTICE BROBSON
FILED: May 12, 2023
Petitioner the County of Chester Board of Elections (Board) has raised an important issue worthy of this Court’s consideration, namely the proper construction and application of Sections 1701 and 1703 of the Election Code, 25 P.S. §§ 3261, 3263, relating to the initiation of a recount upon the petition of qualified electors. I thus agree with the majority’s decision to grant the Petition for Allowance of Appeal. I, however, respectfully disagree with the majority’s decision to dispose of the merits summarily through a per curiam order vacating the Commonwealth Court’s decision below based solely on the contents of the Board’s Petition. By doing so, this Court has deprived Respondents, who prevailed below, the opportunity to be heard by this Court on the Board’s challenge to the Commonwealth Court’s unpublished, single-judge Memorandum Opinion and Order. As I would have given the parties the opportunity to brief fully and argue their respective positions before this Court, I dissent from the majority’s summary disposition.
Justice Mundy joins this concurring and dissenting statement.
The Original Article:
Pennsylvania Commonwealth Court Overturns Decision to Block Midterm Election Recounts
On February 10, 2023, the Pennsylvania Commonwealth Court issued a decision reinforcing the value of transparency and security of elections. Ruling on an appeal brought by citizens of Chester County, Pennsylvania, the Honorable Christine Cannon provided a historical victory for the principle of the rule-of-law that all citizens are accountable to the same laws, including those holding government office.
Due to documented concerns about the transparency and security of election processes, 33 voters in Chester County, Pennsylvania filed 11 petitions to recount ballots from the 2022 midterm election. The recount petitions were filed in the Chester County Court of Common Pleas and assigned to Judge Jeffrey R. Sommer. Rather than schedule the recounts as required under the recount statute, Judge Sommer scheduled a hearing on the petitions. Judge Sommer then invited the Chester County Board of Elections – which is comprised of the County Commissioners – to respond to the recount petitions. The Democrat-controlled Board of Elections objected to the recounts, rather than submitting the ballots to the court so recounts could be completed. The Board of Elections argued that the petitioners were required to file petitions in every precinct in Pennsylvania (more than 9,000 precincts) which would be prohibitively costly. Fees to file petitions in every county would total over $2.2 million.
On November 28, Democrat County Commissioners Maxwell and Moskowitz voted to certify the 2022 election results, even though the recount petitions were still pending – in violation of the Election Code. Republican Commissioner Michelle Kichline voted not to certify the election due to outstanding recount petitions.
At the hearing held on December 5, Judge Sommer demanded that the petitioners produce some evidence of fraud in the election, despite the recount statute affirmatively stating 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 to have been committed, nor to offer evidence to substantiate the allegations of their petition.” When presented with polling results that showed that 52% of American voters believe that the 2020 election was fraudulent, Judge Sommer exploded, “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.” On December 9, 2022, Judge Sommer sided with the Democrat-controlled Board of Elections and dismissed the recount petitions.
Eighteen of the Chester County petitioners appealed to Pennsylvania’s Commonwealth Court, arguing that the recount statute did not require (or even authorize) them to file petitions in every precinct in Pennsylvania and did not require them to allege a specific act of fraud or error. The petitioners also argued that the county board of elections lacked the legal standing to oppose recount petitions — that the board should be a non-partisan body that welcomes any opportunity to demonstrate transparency, integrity, security, fairness, and honesty in elections.
Democrat Commissioners Maxwell and 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, Republican 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.
The Department of State justified its intrusion into the case by blaming the petitioners for delaying final certification of election returns, despite the fact that the recounts would have been completed in November of 2022 had the Democrat County Commissioners not objected to fulfilling their duties under the recount statute.
In what may be the first appellate court decision on the recount statute from the 2022 general election, the Commonwealth Court agreed with the petitioners, saying that Judge Sommer, the Chester County Commissioners, and the Department of State “incorrectly relied on” a related statute to argue that the petitioners were required to “either allege fraud or error with specificity or file in every election district in the Commonwealth.” The Court also noted that Commissioners Maxwell and Moskowitz violated Pennsylvania’s Election Code when they “improperly certified the election results while the Petitions remained outstanding.”
The Commonwealth Court’s decision is an historic victory for election transparency and security in Pennsylvania.
ChescoUnited is a network of freedom-loving citizens, working every day to preserve and advance the quality of life in Chester County, Pennsylvania.
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