In re: Petitions to Open Ballot Box ~ Appeal of: S.C. Dawson ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Petitions to Open Ballot Box :
Pursuant to 25 P.S. §3261(A) and :
for a Correct Count of the General : No. 237 C.D. 2023
Election : Argued: April 5, 2023
:
Appeal of: Steven C. Dawson, Larry :
Aitken, Daniel G. Berrien, Candace :
Chrystel Biafore, Jessica D. Briggs, :
Carole Browne, Patrice Bumba, :
Christine Callaghan, Barbara Canete, :
Sharon Clancy, James J. Del Rio, Jr., :
Elizabeth Diehl, Lorraine Doan, :
Lindsay Emigh, William Patrick Everett, :
Joseph Favoroso, Rosalie Flemke, :
Debra Frei, Frances Grous, Warren H. :
Harner, Jr., Christine I. Heitman, :
Timothy Hellings, Stephanie Inselberg, :
Laura M. Mack, Martha McDonald, :
Joe Mitchener, Erika Montero, Patricia :
H. Murray, Mary Josephine O'Connor, :
Karin Lee Rohrer, Robert Ruidiger, :
Melissa Smith, Natalie Smith, Khristi L. :
Stoll, Marla R. Stoll, Audrey Strein, :
Todd Walbridge, Peter David Yodis, :
Lori Zaro, Christina Cook, Maria Bates, :
Joseph Farrell, Nicholas Grauber, Max :
Lihui Jin, Sharon Walbridge, Roland A. :
Flemke, Michelle Pezzeca, Klaus :
Heitman, Joseph McGinty, Kevin Hirst, :
Mary Ann Hirst, Sharon Brooks, :
Therese Marshall, Brian Land, Avery :
Strein, William A. Capaldi, Glenn T. :
Garwood, Beth Roth, John Smith, :
Rebecca J. Belmont, Carolyn :
Dominski Everett, Joseph Montero, :
Noah Montero, Shane L. Fogleman, :
Sara I. Hunt, Laurie Katz, Leeann :
Levin, Fred Allen Miller, Marilyn L. :
Miller, Allison M. Beard, Nancy :
Kathleen Cuozzo, Andrea Carr, :
Rosemary B. Carr, Christopher :
Domanico, Keun Su Lee, John P. :
Brown, Robert J. Secor, Linda Ann :
Haywood, Kim D. Starkey, Shannon :
Okane Harris, Michael Leigh Moffs :
Walson, Joseph M. Priest, Margo K. :
Priest, Harry Payne Martin, Nancy :
Tegano, Susan W. Oliver, Leslie Mae :
Yodis, Tracy W. Bailey, James Lowell :
Mack, Laura Kate Tressler, Timothy M. :
Tressler, John A. Lang, Allison E. :
Zimmer, Barbara Vees, Anthony :
Wilwert, Steen Matusz, Christopher :
Zaro, Brad Frapwell, Brooke Frapwell, :
Robert Rosarto, Deborah Tyrrell, :
Richard Kuzman, Mary Walchonski, :
Brendan Gorman, Mary Elizabeth :
Gorman, Patricia Nolan, Charles :
Russo, Linda Ziff, Robert Ziff, Vickie :
Lupisella, and Ellen Messing :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: May 9, 2023
The cornerstones of our Commonwealth and our Country are fair and honest
elections. Unfortunately, however, many face a crisis of confidence in our electoral
system. Candidates must do more than earn votes; they must persuade people their
votes count. With this in mind, the Court concludes affirming the Court of Common
Pleas of Bucks County (Common Pleas) is both legally correct and the result most
2
consistent with promoting integrity of the Commonwealth’s elections. We explain
our reasoning below.
This case involves a group of electors residing in Bucks County (Petitioners)
who, initially proceeding pro se, filed 38 petitions to open ballot boxes in Common
Pleas between November 16, 2022, and December 12, 2022. Common Pleas denied
the petitions by order dated March 3, 2023. Petitioners have now appealed, arguing
primarily that Common Pleas erred as a matter of law by concluding their petitions
failed to comply with limitations found in Section 1703 of the Pennsylvania Election
Code (Election Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 3263.
Earlier this year, the Court issued two single-judge decisions, which reached
diametrically opposed conclusions on this issue. First, we decided In re: Recount of
Berks County General Election of November 8, 2022 (Pa. Cmwlth., Nos. 1426-1427
C.D. 2022, filed January 31, 2023) (Berks County). The Berks County opinion
interpreted Section 1703 to impose limitations on petitions to open ballot boxes, and
Common Pleas relied on the Berks County opinion when deciding this case. Second,
we decided In re: Petition to Open Ballot Box Pursuant to 25 P.S. § 3261(a) (Pa.
Cmwlth., Nos. 1489-1494 C.D. 2022, filed February 10, 2023) (Chester County).
The Chester County opinion concluded the limitations found in Section 1703 applied
only to subsequent petitions to open ballot boxes filed if an initial petition uncovers
fraud or error.
After careful review, we agree with Common Pleas’ interpretation of the
Election Code. Petitioners needed to (1) file their petitions to open ballot boxes 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.
3
As Petitioners did not satisfy either of these requirements, they were not entitled to
their requested recount of ballots.
I. Background
In their petitions to open ballot boxes, Petitioners generally requested recounts
of votes cast during the November 8, 2022 General Election for either the offices of
Governor and Lieutenant Governor or for a list of offices, including Governor and
Lieutenant Governor, United States Senator, United States Representative, State
Senator, and State Representative. Three Petitioners filed each petition, requesting
a recount in a particular election district. The petitions corresponded to 36 Bucks
County election districts in all.
In support of the recounts, Petitioners relied on Section 1701 of the Election
Code, 25 P.S. § 3261. They averred: “To the best of Petitioners’ information and
belief, fraud or error, although not manifest on the general return of votes, was
committed in the computation of votes cast, or in the marking of ballots, or otherwise
in connection with said ballots . . . .” Pet. ¶ 5.1 Petitioners requested that a recount
be conducted by hand “and that no machines be employed, so that machine related
errors can be detected.” Id. ¶ 7. Finally, Petitioners averred they had timely filed
their petitions within five days of completion of the computational canvassing of all
county returns and deposited the required sum of $50. Id. ¶¶ 8-9.
The Bucks County Board of Elections (Board) filed preliminary objections on
December 8, 2022. The Board argued the petitions did not meet the requirements of
Section 1703. Specifically, the Board argued Petitioners did not present prima facie
evidence of a particular act of fraud or error in their petitions. Mem. of Law in Supp.
1
The petitions were later consolidated under a single docket number, 2022-05865, as summarized
below. For ease of reference, when we cite a document or version of a document initially filed at
multiple docket numbers, we cite the document or version of the document filed at the lead docket
number.
4
of Prelim. Objs. at 3. According to the Board, Section 1703 required Petitioners to
either present evidence or file petitions as to every election district in which ballots
were cast for the offices in question, accompanied by a cash payment or bond for
each district. Id. Because Petitioners were requesting recounts of countywide and
statewide elections, they would need to present evidence or file petitions as to the
304 election districts in Bucks County and 9,178 election districts in the
Commonwealth of Pennsylvania, including Bucks County. Id.; Prelim. Objs. ¶¶ 9-
10, 23. Accepting in the alternative that the petitions were sufficient, the Board
argued Petitioners were not entitled to a hand recount. The Board maintained any
recount should proceed under Section 1404(e)(3)(i) of the Election Code, 25 P.S. §
3154(e)(3)(i), which generally directs county boards to “recount all ballots using
manual, mechanical or electronic devices of a different type used for the specific
election.”2
Significantly, under Section 302(k) of the Election Code, 25 P.S. § 2642(k), a
county board of elections must certify its results “no later than the third Monday
following the primary or election.” Because of the pending petitions in this case, the
Board was unable to comply with Section 302(k). See 25 P.S. § 3154(f) (“At the
expiration of five (5) days after the completion of the computation of votes, in case
no petition for a recount or recanvass has been filed . . . the county board shall certify
the returns . . . .”). On December 13, 2022, counsel entered his appearance on behalf
of Petitioners. Following a conference, and with agreement of the parties, Common
2
The Board also included other challenges in its preliminary objections, which are not relevant to
our disposition of this appeal. Briefly, the Board argued that certain petitions were untimely, were
not served on the Board, and did not include the signatures of all three relevant Petitioners. Mem.
of Law in Supp. of Prelim. Objs. at 3-5. The Board further argued some of the Petitioners alleging
fraud or error in the petitions served as election officials on November 8, 2022, and did not report
fraud or error at that time. Id. at 5-6. Thus, the Board contended those Petitioners should be
equitably estopped from alleging fraud or error in a petition under Section 1701. Id.
5
Pleas entered an order dated December 14, 2022, permitting the Board to certify its
results. The order directed counsel for Petitioners to file for consolidation of the
petitions and submit a memorandum of law responding to the Board’s preliminary
objections. In addition, the order directed the parties to cooperate in the preparation
of a stipulation of facts. The parties filed joint stipulations of consolidation and of
facts on December 23, 2022. Common Pleas granted consolidation and accepted the
stipulation of facts by orders dated December 30, 2022.
Petitioners filed a memorandum opposing the Board’s preliminary objections
on January 10, 2023. Petitioners argued the Board lacked standing to contest their
petitions, as the Election Code “does not contemplate . . . an opposing party” to a
proceeding to open ballot boxes. Mem. in Opp’n to Prelim. Objs. at 4. They argued
the Board had no legal interest in the proceedings, as its role was merely to surrender
the ballot box to Common Pleas to be recounted. Id. at 9. Moreover, Petitioners
challenged the Board’s interpretation of Section 1703. Petitioners contended the
limitations found in Section 1703 applied only when a petition under Section 1701
uncovered fraud or error, and the interested parties sought to open additional ballot
boxes. Id. at 11-12. They maintained the Board’s interpretation would effectively
read Section 1701 out of the Election Code. Id. at 12. Petitioners requested any
recount should proceed by hand, citing Section 1701(a)’s language that recounts be
conducted “by persons” and Section 1404(e)(3)(i)’s language that recounts may be
conducted manually. Id. at 15-18 (quoting 25 P.S. §§ 3154(e)(3)(i), 3261(a)).3
3
Petitioners contended they should not be estopped from filing petitions if they served as election
officials, because they were not involved with the tabulation of ballots, their concerns of fraud or
error did not involve their function as election officials, or they did not become aware of the
information supporting their concerns until after the November 8, 2022 General Election. Mem.
in Opp’n to Prelim. Objs. at 13-14.
6
Petitioners also filed, on January 10, 2023, a motion to amend their recount
petitions and for discovery. While not waiving the argument they were not required
to present evidence of fraud or error, Petitioners averred they discovered information
after the November 8, 2022 General Election, which they considered reliable and
supported their concerns. Mot. to Amend at 1. Petitioners alleged over 12,000
registered voters had moved out of Pennsylvania, and “13 voters [] were deceased at
the time of the election. Id. at 2-4. They further alleged various improprieties with
respect to mail-in and absentee ballots, such as 462 instances where the Board
indicated in its records that electors returned voted ballots before receiving a ballot
in the mail. Id. at 3. Petitioners sought leave to amend their petitions to add
averments containing this information. Id. at 4-6. They requested discovery as well,
including documents and the deposition of the Bucks County Director of Elections,
which they maintained was necessary in response to the Board’s preliminary
objections. Id. at 7.
The Board filed an answer to the motion to amend, and a motion to dismiss,
on January 25, 2023. The Board argued Petitioners waived any challenge based on
voter registrations, as registrations are subject to challenge under 25 Pa.C.S. § 1509,
and the deadline for proceeding under that section had already passed. Answer ¶ 1a-
b.4 Responding to Petitioners’ concerns more directly, the Board argued electors
may move out of Pennsylvania temporarily while maintaining their voter registration
for reasons such as engaging in military service or attending college. Id. (citing 25
Pa.C.S. §§ 1302, 1506(f)).
4
See 25 Pa.C.S. § 1509(a) (permitting petitions to cancel or suspend a registration “[a]t any time
not later than the tenth day preceding an election”).
7
The Board similarly contended the correct means of challenging a mail-in or
absentee ballot was to proceed under Section 1308 of the Election Code, added by
Section 11 of the Act of March 6, 1951, P.L. 3, 25 P.S. § 3146.8, but the deadline
for invoking that section had also already passed. Answer ¶ 1c-e.5 The Board
contended the alleged improprieties Petitioners identified regarding mail-in or
absentee ballots were a misunderstanding. Id. The Board conceded that 13 voters
submitted mail-in or absentee ballots and later died but averred it did not receive
word of the deaths in time to cancel their ballots. Id. ¶ 1e. Regarding the allegation
that electors began returning mail-in or absentee ballots before receiving them, the
Board asserted this was the result of administrative issues associated with mailing a
large batch of 50,000 ballots to voters at once. Id. ¶ 1d. The Board asserted it did
not receive word from its mail house that any of the ballots were sent, and therefore
could not update its records, until all the ballots were sent, a process which took
nearly a week. Id. The Board noted the concerns Petitioners raised, even if they
were indicative of fraud or error, would not result in a different computation of votes
after a recount. Id. ¶ 1c-e. Ultimately, the Board denied Petitioners were entitled to
discovery and asked Common Pleas to dismiss their petitions, contending once again
they failed to satisfy the requirements of Section 1703. Id. ¶ 5-16. The Board added
the matter was moot, as the election results were certified, and the successful
candidates were sworn into office. Id. ¶ 22.
Common Pleas held argument on February 9, 2023, during which the parties
essentially raised the points summarized above. Counsel for Petitioners conceded a
recount would not confirm or refute their concerns, nor would it overturn the results
5
See 25 P.S. § 3146.8(f) (requiring any person challenging an absentee or mail-in ballot to deposit
$10 with the county election board, which “shall only be refunded if the challenge is sustained or
if the challenge is withdrawn within five (5) days after the primary or election”).
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of the November 8, 2022 General Election, as “[t]here’s no possibility of segregating
those kinds of improper votes from the pack of votes.” Notes of Testimony, 2/9/23,
at 87, 97, 112, 152-57. Counsel indicated Petitioners’ intent was not to change the
results of the election but to use the recount as a method of investigating election
integrity and preventing problems from occurring in future elections. Id. at 87-88,
127, 152-57. He explained: “[T]his is not an accusatorial process. This is more like
an . . . exploratory operation maybe, we don’t want the patient to die because we
didn’t catch the disease.” Id. at 127
Following argument, Common Pleas denied the petitions to open ballot boxes
by order dated March 3, 2023. Common Pleas issued an accompanying opinion, in
which it first addressed the Board’s standing. Common Pleas concluded the Board
possessed standing as an agency statutorily required to oversee elections. Common
Pleas Op. at 6-7. Common Pleas compared the Board to other administrative bodies
that participate in appeals, such as zoning hearing boards, and cited case law the
Board provided as persuasive. Id. (citing Pa. Game Comm’n v. Dep’t of Env’t Res.,
555 A.2d 812 (Pa. 1989); In re Expungements, 938 A.2d 1075 (Pa. Super. 2007)).
Common Pleas then turned its attention to the requirements of Sections 1701
and 1703. Common Pleas acknowledged the conflict between this Court’s decisions
in Berks County and Chester County. Id. at 14-15. Notably, this Court decided
Berks County on January 31, 2023, just over a week before Common Pleas heard
argument on the petitions to open ballot boxes. The Court decided Chester County
the day after Common Pleas heard argument, on February 10, 2023. Common Pleas
adopted Berks County’s analysis, explaining Petitioners did not comply with Section
1703, which required them to file their recount petitions as to each election district
in which ballots were cast for the offices in question or plead and offer prima facie
9
evidence that a particular act of fraud or error occurred. Id. at 19-20. Common Pleas
concluded Petitioners did not file their petitions as to each election district and did
not plead fraud or error. Id. at 20.
In reaching this conclusion, Common Pleas addressed Petitioners’ motion to
amend their petitions, reasoning a recount would be “inappropriate and inapplicable
to the concerns” the motion raised. Id. at 20. Common Pleas interpreted a recount
under Section 1701 as applying specifically to allegations of fraud or error that might
affect vote totals in an election. Id. at 19-20. Common Pleas discussed Petitioners’
concerns regarding individuals registered to vote in Bucks County who appeared to
have moved away or died. It reasoned the proper means of addressing such concerns
was through a challenge to those individuals’ registrations, rather than a recount. Id.
at 15-16 (citing 25 Pa.C.S. § 1509). Similarly, Common Pleas discussed Petitioners’
concerns regarding alleged irregularities with mail-in and absentee ballots, reasoning
the proper means of raising these concerns was through a challenge to the ballots
under Section 1308. Id. at 18 (citing 25 P.S. § 3146.8). Common Pleas emphasized
the futility of pursuing either of these concerns through a recount under Sections
1701 and 1703 because it would be impossible to separate allegedly problematic
ballots from those that were not problematic. Id. at 17-19. Thus, as Petitioners’
counsel had conceded, Petitioners’ concerns had no chance of affecting the vote
totals in the election, even if they were entirely accurate. Id. at 19.6
6
Common Pleas also addressed whether Petitioners properly served, or were required to serve,
their petitions on interested parties and whether the petitions were timely filed. Common Pleas
Op. at 11. Common Pleas declined to reach a conclusion on these points, reasoning the parties
had stipulated the litigation would not affect the certification of the November 8, 2022 General
Election, and any conclusion would be unnecessary given its overall disposition of the case. Id. at
11-13. Common Pleas nonetheless advised that future petitioners should promptly serve their
petitions as a fundamental procedural due process requirement. Id. at 13-14.
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Petitioners timely appealed. Common Pleas directed Petitioners, by order
dated March 8, 2023, to file a concise statement of errors complained of on appeal
within 21 days. Subsequently, by order dated March 15, 2023, this Court directed
Common Pleas to submit an opinion in support of its decision no later than March
20, 2023, and explained certification of the original record would not be delayed by
proceeding under Pa.R.A.P. 1925(b), governing the filing and service of concise
statements. Common Pleas issued a brief opinion, which relied on its prior opinion
of March 3, 2023, as explanation for its decision.
II. Mootness
Preliminarily, we must address whether Petitioners’ appeal is moot due to the
certification of the November 8, 2022 General Election. This Court has explained
an actual case or controversy must exist at all stages of the judicial or administrative
process. Kupershmidt v. Wild Acres Lakes Prop. Owners’ Ass’n, 143 A.3d 1057,
1061 (Pa. Cmwlth. 2016) (quoting Consol Pa. Coal Co., LLC v. Dep’t of Env’t Prot.,
129 A.3d 28, 38 (Pa. Cmwlth. 2015)). “An issue before the court is moot if, in ruling
upon the issue, the court cannot enter an order that has any legal force or effect.”
Burns v. Dep’t of Hum. Servs., 190 A.3d 758, 761 (Pa. Cmwlth. 2018) (citing
Luzerne Cnty. Child. & Youth Servs. v. Dep’t of Pub. Welfare, 826 A.2d 84, 86 (Pa.
Cmwlth. 2003)).
This appeal is arguably moot as, even if we were to reverse Common Pleas’
order, Petitioners consented to the certification of Buck County’s election results.
Petitioners have conceded a recount would not confirm or refute their concerns, nor
would it overturn those results. An exception exists that allows this Court to address
moot questions, however, when they are of great public importance. Pilchesky v.
Lackawanna Cnty., 88 A.3d 954, 964 (Pa. 2014) (citing Rendell v. Pa. State Ethics
11
Comm’n, 983 A.2d 708, 719 (Pa. 2009)). Resolving confusion regarding the correct
interpretation of Sections 1701 and 1703 falls under this exception. This is at least
the third appeal involving Sections 1701 and 1703 the Court has decided in 2023 so
far. Similar petitions to open ballot boxes have been filed across the
Commonwealth. Because these petitions may continue to arise, it is essential to
clarify the necessary requirements, so everyone involved can resolve allegations of
election fraud or error quickly and correctly. The need is particularly pressing now,
with the 2023 Primary Election fast approaching. Therefore, we conclude mootness
does not prevent us from reaching the merits of Petitioners’ issues.
III. Issues on appeal
On appeal, Petitioners contend (1) the Board did not have standing to file
preliminary objections to their petitions, (2) Common Pleas erroneously interpreted
Sections 1701 and 1703,7 and (3) they have established the facts and circumstances
of this case warrant the requested recount be conducted by hand. See Petitioners’
Br. at 4.
IV. Standing
We begin by addressing whether the Board had standing to file preliminary
objections to the recount petitions. Issues of standing are questions of law for which
our standard of review is de novo and scope of review is plenary. C.G. v. J.H., 193
A.3d 891, 898 (Pa. 2018) (citing K.W. v. S.L., 157 A.3d 498, 504 (Pa. Super. 2017)).
This means we do not defer to Common Pleas when reaching a decision and review
the entire record on appeal. Mercury Trucking, Inc. v. Pa. Pub. Util. Comm’n, 55
7
Petitioners do not challenge Common Pleas’ conclusion that the concerns they sought to raise in
their motion to amend are not allegations of fraud or error appropriate to a recount proceeding, as
a recount would not be able to confirm or refute those concerns. Accordingly, we focus our review
on the correct requirements of the Election Code and not on whether Petitioners’ concerns satisfied
those requirements.
12
A.3d 1056, 1082 (Pa. 2012) (citing Heath v. Workers’ Comp. Appeal Bd. (Pa. Bd. of
Prob. & Parole), 860 A.2d 25, 29 n.2 (Pa. 2004)).
A prospective party obtains standing either by statute or by having an interest
deserving of legal protection. Unified Sportsmen of Pa. v. Pa. Game Comm’n, 903
A.2d 117, 122 (Pa. Cmwlth. 2006) (citing Pa. Game Comm’n, 555 A.2d 812). To
obtain standing under the latter method, a prospective party’s interest in the outcome
of an action must generally be substantial, direct, and immediate. See id. at 123;
Lawless v. Jubelirer, 789 A.2d 820, 826 (Pa. Cmwlth. 2002) (en banc) (citing Wm.
Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975)
(plurality)). “An interest is substantial if there is a discernable adverse effect to an
interest other than that of the general citizenry. It is direct if the petitioner can show
a harm to his interest. It is immediate if it is not a remote consequence of the
judgment.” Lawless, 789 A.2d at 826 (citations omitted).
In arguing the Board lacked standing in this matter, Petitioners do not address
the substantial, direct, and immediate interest requirements listed above. Instead,
they reiterate their contention below that the Election Code “does not contemplate
. . . an opposing party” to a proceeding to open ballot boxes. Petitioners’ Br. at 17.
Petitioners contend the Board “is not a defendant in a civil action in these [p]etitions
but is the governmental body [that] must carry out the election laws of Pennsylvania
in Bucks County.” Id.Contrary to Petitioners’ contention, the Board’s status as the entity carrying
out election laws is exactly what confers standing under these circumstances. As
observed above, it was the Board’s duty to certify the results of the November 8,
2022 General Election “no later than the third Monday” thereafter, which would
have been November 28, 2022. See 25 P.S. § 2642(k). Because of the petitions to
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open ballot boxes, the Board was unable to comply with this statutory duty until
Common Pleas entered its order dated December 14, 2022. See 25 P.S. § 3154(f).
Furthermore, the Election Code requires the Board to conduct any recount resulting
from the petitions. See 25 P.S. § 3154(e)(3)(i) (“The county board shall recount all
ballots using manual, mechanical or electronic devices of a different type used for
the specific election.”). The Board’s interests in this litigation are distinct from the
general citizenry. See Lawless, 789 A.2d at 826. This litigation has also “harmed”
the Board’s interests and may continue to cause harm if it requires the Board to
conduct a recount contrary to the mandates of the Election Code. Id. The harm has
not been, and would not be, a remote consequence of the proceedings. Id. Thus, the
Board possessed standing to challenge the petitions.
V. Sections 1701 and 1703 of the Election Code
In their next issue, Petitioners contend Common Pleas erroneously interpreted
Sections 1701 and 1703. This is an issue of statutory construction, for which, once
again, our standard of review is de novo, and our scope of review is plenary. In re
Benkoski, 943 A.2d 212, 215 n.2 (Pa. 2007) (citing In re Carroll, 896 A.2d 566, 573
(Pa. 2006)). “The object of statutory construction is to ascertain and effectuate the
General Assembly’s intent. The plain language of a statute is, as a general rule, the
best indicator of such legislative intent.” Id. at 1067-68 (citing Bd. of Revision of
Taxes, City of Phila. v. City of Phila., 4 A.3d 610, 622 (Pa. 2010)).
Petitioners contend it was not necessary to file their petitions to open ballot
boxes as to each election district in which ballots were cast for the offices in question
or to plead and offer prima facie evidence that a particular act of fraud or error
occurred. They rely on Section 1701(a), which provides as follows:
(a) . . . [T]he court of common pleas, or a judge thereof, of the county
in which any election district is located in which ballots were used, shall
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open the ballot box of such election district used at any general,
municipal, special or primary election held therein, and cause the entire
vote thereof to be correctly counted by persons designated by such court
or judge, if three qualified electors of the election district shall file, as
hereinafter provided, a petition duly verified by them, alleging that
upon information which they consider reliable they believe that fraud
or error, although not manifest on the general return of votes made
therefrom, was committed in the computation of the votes cast for all
offices or for any particular office or offices in such election district, or
in the marking of the ballots, or otherwise in connection with such
ballots. It 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.
25 P.S. § 3261(a).8
Petitioners acknowledge Section 1703 also deals with petitions to open ballot
boxes and contains additional limitations, but they argue the limitations apply only
to subsequent petitions filed after an initial petition uncovers fraud or error. Section
1703(a)(1) provides as follows:
(a)(1) Any petition to open a ballot box or to recanvass the votes on a
voting machine or an electronic voting system pursuant to sections
1701 and 1702 shall be filed no later than five (5) days after the
completion of the computational canvassing of all returns of the county
by the county board. If any error or fraud is found the court shall grant
the interested parties an additional five (5) days to file petitions
requesting additional ballot boxes to be opened or voting machines or
electronic voting systems to be recanvassed.
(i) Except as set forth in subclause (ii):
8
Section 1702 of the Election Code, 25 P.S. § 3262, contains language similar to Section 1701,
except it governs the recanvassing of voting machines following an allegation of fraud or error,
rather than the opening of ballot boxes. According to Section 1118-A of the Election Code, added
by Section 4 of the Act of July 11, 1980, P.L. 600, 25 P.S. § 3031.18, Section 1701 applies when
an “election district uses an electronic voting system utilizing paper ballots,” while Section 1702
applies when an “election district uses any other type of electronic voting system.”
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(A) a recount or recanvass shall include all election districts in which
ballots were cast for the office in question; and
(B) petitions, accompanied by the appropriate money or bond, must be
filed in each election district in accordance with this act.
(ii) Subclause (i) shall not apply if a petitioner under section 1701 or
1702 pleads that a particular act of fraud or error occurred and offers
prima facie evidence supporting the allegation.
25 P.S. § 3263(a)(1).
Petitioners’ argument depends on distinguishing the two sentences of Section
1703(a)(1). According to Petitioners, the limitations found in Section 1703(a)(1)(i)-
(ii) do not apply to the first sentence of Section 1703(a)(1), which deals with “[a]ny
petition to open a ballot box . . . pursuant to sections 1701 and 1702,” but only to the
second sentence, which provides “interested parties” with an additional five days to
file petitions “[i]f any error or fraud is found.” Id. Petitioners maintain interpreting
the Election Code in any other way would “render Section 1701(a) a logical nullity.”
Petitioners’ Br. at 13. They emphasize arranging for three electors to file petitions
within five days of completion of the computational canvassing as to every election
district in the Commonwealth would be functionally impossible. Id. at 11-14.
A. Plain language
Section 1703’s plain language belies Petitioners’ contentions. The structure
of Section 1703(a)(1) demonstrates the limitations found in Section 1703(a)(1)(i)-
(ii) are applicable to both sentences of Section 1703(a)(1) and to petitions to open
ballot boxes generally. Section 1703(a)(1)(i)-(ii) appears immediately under Section
1703(a)(1), which consists of two sentences in a single, continuous paragraph. If the
General Assembly had intended Section 1703(a)(1)(i)-(ii) to modify only part of
Section 1703(a)(1), it could have split Section 1703(a)(1) into separate subsections
16
and placed the language found in Section 1703(a)(1)(i)-(ii) under only one of those
subsections.
Further, Section 1703(a)(1)(ii) expressly states Section 1703(a)(1)(i) applies
to petitions to open ballot boxes under Section 1701. Section 1703(a)(1)(ii) provides
the limitations found in Section 1703(a)(1)(i) “shall not apply if a petitioner under
section 1701 or 1702 pleads that a particular act of fraud or error occurred and offers
prima facie evidence supporting the allegation.” 25 P.S. § 3263(a)(1)(ii) (emphasis
added). Petitioners do not explain why our General Assembly would have included
conditions where Section 1703(a)(1)(i) does not apply to “a petitioner under section
1701” if Section 1703(a)(1)(i) was never meant to apply to petitioners under Section
1701, as they suggest.
“Where statutory language is clear and unambiguous, this Court must give
effect to the words of the statute. When interpreting a statute, courts may not look
beyond the plain meaning of a statute under the guise of pursuing its spirit.” City of
Johnstown v. Workers’ Comp. Appeal Bd. (Sevanick), 255 A.3d 214, 220 (Pa. 2021)
(citations omitted). Even when the language of a statute is clear, however, we must
presume our General Assembly intended the entire statute to be effective and certain,
and sought to avoid results that are absurd, impossible of execution, or unreasonable.
Commonwealth v. Shiffler, 879 A.2d 185, 189-90 (Pa. 2005) (citing 1 Pa.C.S. §
1922(1), (2)).
Here, arguments arose, both in Petitioners’ brief and during argument before
this Court, that applying the plain language of Section 1703(a)(1)(i)-(ii) as we have
interpreted it would result in an unreasonable or absurd construction of the statute.
These arguments generally relate to concerns that (1) applying the limitations found
in Section 1703(a)(1)(i)-(ii) to petitions to open ballot boxes under Section 1701(a)
17
would harm public confidence in election integrity, (2) it would be impossible for
petitioners to proceed under Section 1701(a) with respect to statewide races because
of the expense and number of electors necessary to file as to every election district,
and (3) it would be difficult to obtain evidence of fraud or error without first opening
a ballot box. For the reasons discussed below, the Court disagrees and concludes
the plain language of Section 1703(a)(1)(i)-(ii) does not result in an unreasonable or
absurd construction.
B. Election integrity
Although the language of Section 1701(a) has remained virtually unchanged
since our General Assembly passed the Election Code in 1937, the limitations found
in Section 1703(a)(1)(i)-(ii) are the result of a 2004 amendment. See Act of October
8, 2004, P.L. 807.9 Significantly, the amendment also added an automatic recount
procedure, found in Section 1404(g).10 The Court’s review of the legislative journals
9
The concurring and dissenting opinion repeatedly quotes language from our Supreme Court’s
decision In re 2003 Gen. Election for the Off. of Prothonotary, 849 A.2d 230 (Pa. 2004), regarding
the relative ease of opening ballot boxes. The Court decided 2003 Gen. Election in May 2004,
before our General Assembly amended the Election Code to add Section 1703(a)(1)(i)-(ii) on
October 8, 2004. Accordingly, the language the concurring and dissenting opinion relies on does
not control, and has little if any relevance to, our decision today.
10
The automatic recount procedure is as follows, in relevant part:
(g) This subsection relates to recounts and recanvasses ordered by the secretary.
(1) Except as set forth in subsection (h), the secretary shall order a recount and
recanvass to all county boards if the unofficial returns prepared in accordance with
subsection (f) reflect any of the following:
(i) A candidate for a public office which appears on the ballot in every election
district in this Commonwealth was defeated by one-half of a percent or less of the
votes cast for the office. This subclause includes a candidate for retention to a
Statewide judicial office.
18
associated with the 2004 amendment has not uncovered any discussion of Section
1703(a)(1)(i)-(ii). The clearest description of the amendment’s intent comes from
then-Governor Edward Rendell, who issued an explanatory message when signing
the amendment into law. Our Supreme Court has considered similar messages when
discerning the General Assembly’s intent. See Commonwealth v. Taylor, 104 A.3d
479, 491 (Pa. 2014) (citing the governor’s message when interpreting Section 3814
of the Vehicle Code, 75 Pa.C.S. § 3814); Powell v. Unemployment Comp. Bd. of
Rev., 157 A.3d 884, 897 (Pa. 2017) (Todd, J., dissenting) (citing the governor’s
message when interpreting Section 214 of the Unemployment Compensation Law,
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added
by Section 3 of the Act of June 15, 2005, P.L. 8, 43 P.S. § 774). Regarding the
statutory language at issue in this matter, Governor Rendell offered the following:
The bill, approved with overwhelming bipartisan support by the state’s
General Assembly, authorizes the Secretary of the Commonwealth to
order each county election board to recount all ballots cast in a specific
race in the event that results are within 0.5 percent between the winning
and losing candidate.
....
In addition to the automatic recount, candidates in statewide offices can
seek a recount on their own when they have lost by more than 0.5
percent and candidates in non-statewide races may still file for recounts
as before. However, 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. In instances where a specific allegation
(ii) A ballot question appearing on the ballot in every election district in this
Commonwealth was approved or rejected by one-half of a percent or less of the
votes cast on the question.
25 P.S. § 3154(g)(1)(i)-(ii).
19
can be made, a total recount is not necessary, and a recount may be
sought only where the irregularity allegedly took place.
Governor’s Message, Oct. 31, 2004 (emphasis added).
Thus, our interpretation of Section 1703(a)(1) is consistent not only with the
plain language of the Election Code but with Governor Rendell’s explanation of the
2004 amendment at the time of its passage. This explanation indicates the purpose
of imposing the limitations found in Section 1703(a)(1)(i)-(ii) was, at least in part,
to promote the fairness of recount procedures when the automatic recount in Section
1404(g) does not apply. Requiring an automatic recount of each election district or
requiring petitioners to seek a recount of each district ensures “all people have their
vote counted equally” when no evidence of fraud or error is present. See id. If
petitioners can offer evidence of a particular act of fraud or error, in contrast, only a
recount of votes the fraud or error affected is necessary. This is logical because there
is no reason to believe people did not “have their vote counted equally” in election
districts unrelated to the fraud or error identified. See id.
By way of example, the Commonwealth faced a remarkably close statewide
election a year before our General Assembly passed the 2004 amendment and added
the automatic recount and Section 1703(a)(1)(i)-(ii) to the Election Code. In 2003,
Republican Susan Gantman (Gantman) narrowly defeated Democrat John Driscoll
(Driscoll) for a seat on the Pennsylvania Superior Court. In an opinion addressing
the election, our Supreme Court noted Gantman defeated Driscoll by only 28 votes
out of over 2,250,000 votes cast. In re Canvass of Absentee Ballots of Nov. 4, 2003
Gen. Election, 843 A.2d 1223, 1225 (Pa. 2004). Hypothetically, if Driscoll had
found a single election district with a 29-vote discrepancy in his favor, he could have
changed the outcome of the election, even without evidence of fraud or error. This
would have been a patently unjust result, however, if discrepancies existed in favor
20
of Gantman in other election districts and Driscoll did not seek a recount in every
district in which ballots were cast. Gantman’s only recourse would be to search for
the proverbial needle in a haystack, with no guarantee of deducing where, out of the
thousands of possible election districts, she should file her own petitions. Requiring
recounts in every district works to eliminate this problem by facilitating discovery
of all possible discrepancies. It therefore promotes, rather than hinders, election
integrity because it helps to ensure elections are decided by the will of the voters and
not luck or successful lawyering.
C. Impossibility
Regarding Petitioners’ other concerns, the Court cannot accept the argument
that applying the plain language of Section 1703(a)(1) “render[s] Section 1701(a) a
logical nullity,” or is otherwise absurd, impossible of execution, or unreasonable.
See Petitioners’ Br. at 13. In practical terms, it is highly unlikely anyone would be
able to arrange for three petitioners to timely file petitions to open ballot boxes in
every election district in the Commonwealth.11 This argument nonetheless ignores
11
The argument that there would be an unreasonable monetary barrier to filing petitions to open
ballot boxes in every election district in the Commonwealth lacks merit. Section 1701(b) requires
petitioners to submit a cash deposit or bond for each election district where they request a recount.
It provides:
(b) Every petition for the opening of a ballot box under the provisions of this section
shall be filed in the office of the prothonotary of the proper county, accompanied
by a deposit of cash in the amount of fifty ($50.00) dollars, or by a bond signed by
the petitioners as principals and by a corporate surety to be approved by the court,
in the amount of one hundred ($100.00) dollars, conditioned upon the payment to
the county treasurer for the use of the county of the sum of fifty ($50.00) dollars,
in the event that, upon the opening of the ballot box, it shall not appear that fraud
or substantial error was committed in the computation of the votes cast on the
ballots contained therein, or fraud in the marking of the ballots contained therein,
or otherwise in connection with such ballots.
21
the ongoing viability of Section 1701(a) with respect to local races. Numerous races,
such as township supervisor, tax collector, and constable, may occur in only a small
number of election districts or even one election district. Races for local election-
related offices, including judge of elections and inspector of elections, always occur
in one election district. Indeed, the significant number of coordinated electors filing
recount petitions in this case, as well as the Berks County and Chester County cases,
confirms it would remain practical to employ Section 1701(a) in one of these smaller
contests.12
Petitioners’ argument also fails to recognize the automatic recount procedure
at Section 1404(g), which our General Assembly implemented at the same time as
Section 1703(a)(1)(i)-(ii). As quoted above, the procedure applies to statewide races
and ballot questions and is available when a candidate is defeated, or when a ballot
question is approved or rejected, by “one-half of a percent or less of the votes cast.”
25 P.S. § 3154(g)(1)(i)-(ii). The presence of this procedure reveals our General
Assembly exercised its policymaking authority by deciding recounts are essential in
close, statewide races but imposing reasonable limitations if races are not statewide
or candidates lose by a wider margin.
D. Ease of obtaining evidence
Before concluding our review, it is important to stress the public nature of the
Commonwealth’s election procedures, including the computation and canvassing of
25 P.S. § 3261(b); see also 25 P.S. § 3263(a)(1)(i)(B). The cost to file a petition to open a ballot
box is as little as a $50 cash deposit per election district spread across three petitioners, which
amounts to about $16.67 per petitioner. The cost would not change no matter how many petitioners
were involved. In theory, even if petitions were filed as to all 9,178 election districts in the
Commonwealth, the cost per petitioner would remain the same—$16.67.
12
Based on the above, we disagree with the concurring and dissenting opinion’s characterization
of our holding. We do not conclude Section 1703(a)(1)(i)-(ii) negates or impliedly repeals Section
1701(a). In reality, we conclude the exact opposite.
22
ballots. See, e.g., 25 P.S. § 3154(a) (“The county board shall . . . publicly commence
the computation and canvassing of the returns . . . .”). These procedures provide the
opportunity to obtain evidence of fraud or error “in the computation of the votes cast
. . . or in the marking of the ballots, or otherwise in connection with such ballots”
when it exists. See 25 P.S. § 3261(a).
Perhaps the most compelling example is Section 417(a) of the Election Code,
25 P.S. § 2687(a), which permits the appointment of watchers to observe the election
process. Watchers may be present at polling places “from the time that the election
officers meet prior to the opening of the polls . . . until the time that the counting of
votes is complete.” 25 P.S. § 2687(b). Additionally, watchers may be present when
the envelopes containing absentee and mail-in ballots are opened and counted, and
during the computation and canvassing of ballots generally. See Section 1308(b) of
the Election Code, added by Section 11 of the Act of March 6, 1951, P.L. 3, 25 P.S.
§ 3146.8(b); Section 1403(a) of the Election Code, 25 P.S. § 3153(a). Given these
election procedures, the Court finds no merit to the argument that we must not apply
the plain language of Section 1703 because of difficulty obtaining evidence of fraud
or error.
VI. Conclusion
For the foregoing reasons, the Court concludes the Board had standing to
challenge the petitions to open ballot boxes, and Petitioners did not comply with the
requirements of Section 1703(a)(1)(i)-(ii) when filing their petitions. Applying the
plain language of Section 1703(a)(1)(i)-(ii), Petitioners needed to (1) file their
petitions to open ballot boxes 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. Petitioners filed their petitions to open ballot boxes
23
in only 36 election districts while challenging countywide and statewide elections.
They did not initially attempt to plead or produce prima facie evidence of fraud, and
they did not challenge Common Pleas’ conclusion that the concerns they sought to
raise in their motion to amend do not constitute fraud or error appropriate to a recount
proceeding. We do not discern any infirmities in this plain language interpretation.
Rather, we conclude the General Assembly reasonably imposed limits on the ability
of electors to file petitions to open ballot boxes, and we must defer to its judgment.
We therefore affirm Common Pleas’ order dated March 3, 2023.13
STACY WALLACE, Judge
13
Because we conclude Petitioners are not entitled to a recount, we need not address their request
for a recount conducted by hand. Nonetheless, we observe this Court concluded in two recent
decisions, including Chester County, that petitioners who sought to open ballot boxes were not
entitled to hand recounts. See Chester County, slip op. at 19-21; In re: Petition to Open Ballot
Box Pursuant to 25 P.S. § 3261(a) (Pa. Cmwlth., No. 553 C.D. 2022, filed June 7, 2022).
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Petitions to Open Ballot Box :
Pursuant to 25 P.S. §3261(A) and :
for a Correct Count of the General : No. 237 C.D. 2023
Election :
:
Appeal of: Steven C. Dawson, Larry :
Aitken, Daniel G. Berrien, Candace :
Chrystel Biafore, Jessica D. Briggs, :
Carole Browne, Patrice Bumba, :
Christine Callaghan, Barbara Canete, :
Sharon Clancy, James J. Del Rio, Jr., :
Elizabeth Diehl, Lorraine Doan, :
Lindsay Emigh, William Patrick Everett, :
Joseph Favoroso, Rosalie Flemke, :
Debra Frei, Frances Grous, Warren H. :
Harner, Jr., Christine I. Heitman, :
Timothy Hellings, Stephanie Inselberg, :
Laura M. Mack, Martha McDonald, :
Joe Mitchener, Erika Montero, Patricia :
H. Murray, Mary Josephine O'Connor, :
Karin Lee Rohrer, Robert Ruidiger, :
Melissa Smith, Natalie Smith, Khristi L. :
Stoll, Marla R. Stoll, Audrey Strein, :
Todd Walbridge, Peter David Yodis, :
Lori Zaro, Christina Cook, Maria Bates, :
Joseph Farrell, Nicholas Grauber, Max :
Lihui Jin, Sharon Walbridge, Roland A. :
Flemke, Michelle Pezzeca, Klaus :
Heitman, Joseph McGinty, Kevin Hirst, :
Mary Ann Hirst, Sharon Brooks, :
Therese Marshall, Brian Land, Avery :
Strein, William A. Capaldi, Glenn T. :
Garwood, Beth Roth, John Smith, :
Rebecca J. Belmont, Carolyn :
Dominski Everett, Joseph Montero, :
Noah Montero, Shane L. Fogleman, :
Sara I. Hunt, Laurie Katz, Leeann :
Levin, Fred Allen Miller, Marilyn L. :
Miller, Allison M. Beard, Nancy :
Kathleen Cuozzo, Andrea Carr, :
Rosemary B. Carr, Christopher :
Domanico, Keun Su Lee, John P. :
Brown, Robert J. Secor, Linda Ann :
Haywood, Kim D. Starkey, Shannon :
Okane Harris, Michael Leigh Moffs :
Walson, Joseph M. Priest, Margo K. :
Priest, Harry Payne Martin, Nancy :
Tegano, Susan W. Oliver, Leslie Mae :
Yodis, Tracy W. Bailey, James Lowell :
Mack, Laura Kate Tressler, Timothy M. :
Tressler, John A. Lang, Allison E. :
Zimmer, Barbara Vees, Anthony :
Wilwert, Steen Matusz, Christopher :
Zaro, Brad Frapwell, Brooke Frapwell, :
Robert Rosarto, Deborah Tyrrell, :
Richard Kuzman, Mary Walchonski, :
Brendan Gorman, Mary Elizabeth :
Gorman, Patricia Nolan, Charles :
Russo, Linda Ziff, Robert Ziff, Vickie :
Lupisella, and Ellen Messing :
ORDER
AND NOW, this 9th day of May 2023, the order of the Court of Common
Pleas of Bucks County, dated March 3, 2023, is hereby AFFIRMED.
STACY WALLACE, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Petitions to Open Ballot Box :
Pursuant to 25 P.S. §3261(A) and :
for a Correct Count of the General : No. 237 C.D. 2023
Election : Argued: April 5, 2023
:
Appeal of: Steven C. Dawson, Larry :
Aitken, Daniel G. Berrien, Candace :
Chrystel Biafore, Jessica D. Briggs, :
Carole Browne, Patrice Bumba, :
Christine Callaghan, Barbara Canete, :
Sharon Clancy, James J. Del Rio, Jr., :
Elizabeth Diehl, Lorraine Doan, :
Lindsay Emigh, William Patrick Everett, :
Joseph Favoroso, Rosalie Flemke, :
Debra Frei, Frances Grous, Warren H. :
Harner, Jr., Christine I. Heitman, :
Timothy Hellings, Stephanie Inselberg, :
Laura M. Mack, Martha McDonald, :
Joe Mitchener, Erika Montero, Patricia :
H. Murray, Mary Josephine O’Connor, :
Karin Lee Rohrer, Robert Ruidiger, :
Melissa Smith, Natalie Smith, Khristi L. :
Stoll, Marla R. Stoll, Audrey Strein, :
Todd Walbridge, Peter David Yodis, :
Lori Zaro, Christina Cook, Maria Bates, :
Joseph Farrell, Nicholas Grauber, Max :
Lihui Jin, Sharon Walbridge, Roland A. :
Flemke, Michelle Pezzeca, Klaus :
Heitman, Joseph McGinty, Kevin Hirst, :
Mary Ann Hirst, Sharon Brooks, :
Therese Marshall, Brian Land, Avery :
Strein, William A. Capaldi, Glenn T. :
Garwood, Beth Roth, John Smith, :
Rebecca J. Belmont, Carolyn :
Dominski Everett, Joseph Montero, :
Noah Montero, Shane L. Fogleman, :
Sara I. Hunt, Laurie Katz, Leeann :
Levin, Fred Allen Miller, Marilyn L. :
Miller, Allison M. Beard, Nancy :
Kathleen Cuozzo, Andrea Carr, :
Rosemary B. Carr, Christopher :
Domanico, Keun Su Lee, John P. :
Brown, Robert J. Secor, Linda Ann :
Haywood, Kim D. Starkey, Shannon :
Okane Harris, Michael Leigh Moffs :
Walson, Joseph M. Priest, Margo K. :
Priest, Harry Payne Martin, Nancy :
Tegano, Susan W. Oliver, Leslie Mae :
Yodis, Tracy W. Bailey, James Lowell :
Mack, Laura Kate Tressler, Timothy M. :
Tressler, John A. Lang, Allison E. :
Zimmer, Barbara Vees, Anthony :
Wilwert, Steen Matusz, Christopher :
Zaro, Brad Frapwell, Brooke Frapwell, :
Robert Rosarto, Deborah Tyrrell, :
Richard Kuzman, Mary Walchonski, :
Brendan Gorman, Mary Elizabeth :
Gorman, Patricia Nolan, Charles :
Russo, Linda Ziff, Robert Ziff, Vickie :
Lupisella, and Ellen Messing :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING OPINION
BY JUDGE FIZZANO CANNON FILED: May 9, 2023
The Majority holds that three qualified electors cannot bring a petition
to open a ballot box under Section 1701(a) of the Pennsylvania Election Code
(Election Code),1 25 P.S. § 3261(a), unless such petition is either filed and
appropriate fees paid in every election district in which the election was contested,
or sets forth specific allegations of fraud or error. As this interpretation is in direct
1
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 3261(a).
CFC - 2
contravention of the language of the Election Code, I cannot agree with the Majority
and must dissent.2
Initially, I note that Pennsylvania’s Statutory Construction Act of 1972
(Statutory Construction Act)3 provides certain basic presumptions to be employed
in conducting an exercise of statutory interpretation, to wit:
(1) That the General Assembly does not intend a result that
is absurd, impossible of execution or unreasonable.
(2) That the General Assembly intends the entire statute to
be effective and certain.
(3) That the General Assembly does not intend to violate
the Constitution of the United States or of this
Commonwealth.
(4) That when a court of last resort has construed the
language used in a statute, the General Assembly in
subsequent statutes on the same subject matter intends the
same construction to be placed upon such language.
(5) That the General Assembly intends to favor the public
interest as against any private interest.
1 Pa.C.S. § 1922. From these statutory presumptions, our Supreme Court has
recognized that,
[i]n matters involving statutory interpretation, the
Statutory Construction Act directs courts to ascertain and
effectuate the intent of the General Assembly. A statute’s
2
I concur with the Majority that the instant matter is not moot and that the Bucks County
Board of Elections has standing to contest the petitions filed pursuant to Section 1701(a) of the
Election Code.2 See Majority Opinion at 11-14. I further concur with the Majority that the
petitioners herein are not entitled to a hand recount. See Majority Opinion at 23 n.10.
3
1 Pa.C.S. §§ 1501-1991.
CFC - 3
plain language generally provides the best indication of
legislative intent. In construing the language, however,
and giving it effect, we should not interpret statutory
words in isolation, but must read them with reference to
the context in which they appear.
Commonwealth v. Giulian, 141 A.3d 1262, 1267 (Pa. 2016) (internal citations and
quotation marks omitted). Additionally, the Statutory Construction Act provides
that “[e]very statute shall be construed, if possible, to give effect to all its
provisions.” 1 Pa.C.S. § 1921(a).
Regarding petitions to open a ballot box, Section 1701(a) of the
Election Code, 25 P.S. § 3261(a), provides that
the court of common pleas, or a judge thereof, of the
county in which any election district is located in which
ballots were used, shall open the ballot box of such
election district used at any general, municipal, special or
primary election held therein, and cause the entire vote
thereof to be correctly counted by persons designated by
such court or judge, if three qualified electors[4] of the
election district shall file, as hereinafter provided, a
petition duly verified by them, alleging that upon
information which they consider reliable they believe
that fraud or error, although not manifest on the general
return of votes made therefrom, was committed in the
computation of the votes cast for all offices or for any
particular office or offices in such election district, or in
the marking of the ballots, or otherwise in connection with
such ballots. It 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
4
Section 102 of the Election Code defines a “qualified elector” as “any person who shall
possess all of the qualifications for voting now or hereafter prescribed by the Constitution of this
Commonwealth, or who, being otherwise qualified by continued residence in his election district,
shall obtain such qualifications before the next ensuing election.” 25 P.S. § 2602.
CFC - 4
offer evidence to substantiate the allegations of their
petition.
25 P.S. § 3261(a) (emphasis added). Under this language, therefore, a court of
common pleas “shall open the ballot box” without specification of particular fraud
or error, and upon a general allegation of a belief of fraud or error pertaining to any
or all elections in the Commonwealth, without regard to the number of election
districts involved in that election. See id.
Section 1701(a) further expressly and plainly states that petitioners
need not specify a particular act of fraud or error or offer evidence to substantiate
the allegations of their petition. See 25 P.S. § 3261(a). With regard to this portion
of the statute, our Supreme Court has quoted this Court in observing that
the General Assembly [has] made the procedure to open
ballot boxes relatively easy, but . . . [has] also included the
verification requirement, no doubt because it felt it
necessary to require some basis for the opening of boxes
to prevent the filing of Petitions for the sole purpose of
indulging in a “fishing expedition.”
In re 2003 Gen. Election for Off. of Prothonotary, 849 A.2d 230, 239 (Pa. 2004)
(quoting Giacobello v. Bd. of Elections of Borough of Mount Union, Cnty. of
Huntingdon, 322 A.2d 429, 431 (Pa. Cmwlth. 1974)) (internal citation and some
quotation marks omitted).
Section 1703(a)(1) of the Election Code, 25 P.S. § 3263(a)(1), does not
negate the language of Section 1701(a), as the Majority concludes, but rather
operates in tandem with this section. Importantly, Section 1703(a) is not implicated
CFC - 5
unless and until a petition is filed under Section 1701 or 1702.5 Section 1703(a)(2)
provides:
Any petition to open a ballot box or to recanvass the votes
on a voting machine or an electronic voting system
pursuant to section[] 1701 . . . shall be filed no later than
five (5) days after the completion of the computational
canvassing of all returns of the county by the county
board. If any error or fraud is found the court shall grant
the interested parties an additional five (5) days to file
petitions requesting additional ballot boxes to be opened
or voting machines or electronic voting systems to be
recanvassed.
(i) Except as set forth in subclause (ii):
(A) a recount or recanvass shall include all election
districts in which ballots were cast for the office in
question; and
(B) petitions, accompanied by the appropriate
money or bond, must be filed in each election
district in accordance with this act.
(ii) Subclause (i) shall not apply if a petitioner under
section 1701 . . . pleads that a particular act of fraud or
error occurred and offers prima facie evidence supporting
the allegation.
25 P.S. § 3263(a)(1) (internal footnote omitted) (emphasis added).
5
Section 1702(a)(1) of the Election Code provides a procedure parallel to Section 1701 to
be used for the recanvassing of voting machines in election districts where such machines are
employed. See 25 P.S. § 3262(a)(1). As with Section 1701 petitions, Section 1702 petitions do
not require petitioners to plead or prove particular acts of fraud or error. See id. Although the
language of Section 1703(a)(1) pertains to initial and secondary petitions filed under both Section
1701 and 1702, for the sake of clarity, I will henceforth refer only to Section 1701 petitions, which
are the relevant petitions in this matter.
CFC - 6
The first sentence of Section 1703(a)(1) sets forth the additional
requirement for petitions to open a ballot box pursuant to Section 1701(a) that such
petitions must be filed “no later than five (5) days after the completion of the
computational canvassing of all returns of the county by the county board.” 25 P.S.
§ 3263(a)(1). This first sentence merely provides a five-day time limit for the filing
of an initial Section 1701 petition. 25 P.S. § 3263(a)(1). Thus, reading this first
sentence of Section 1703(a)(1) together with Section 1701(a), where three qualified
electors file, within five days of the completion of the computational canvassing of
the election returns by the county board of elections, a petition to open a ballot box
that includes an unspecified allegation of fraud or error verified by the electors to be
based upon information they consider reliable evidence of fraud or error, the court
in which the petition is filed shall open the ballot box and cause the entire vote of
that ballot box to be correctly counted by persons designated by such court or
judge. See 25 P.S. § 3261(a); 25 P.S. § 3263(a)(1). If no fraud or error is
discovered, then the process of opening ballot boxes initiated by the Section 1701
petitioner comes to an end.
“If any error or fraud is found[,]” however, through the opening of the
ballot box resulting from the initial Section 1701 petition, then the Section 1701
petitioner, or other interested parties, may proceed to file additional petitions
pursuant to the procedures outlined in the second sentence of Section 1703(a)(1) and
thereafter. 25 P.S. § 3263(a)(1). The second sentence of Section 1703(a)(1)
provides that, “[i]f any error or fraud is found[,] the court shall grant the interested
parties an additional five (5) days to file petitions requesting additional ballot boxes
to be opened or voting machines or electronic voting systems to be recanvassed.”
25 P.S. § 3263(a)(1). This provision allows for additional 1701 petitions to be filed
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where the initial petition(s) revealed fraud or error. The subsequent procedures
contained in subclauses 1703(a)(1)(i) and 1703(a)(1)(ii) apply only to subsequent
Section 1701 petitions filed after the discovery of fraud or error as a result of the
opening of a ballot box scheduled in response to an initial Section 1701 petition
(secondary Section 1701 petition). See 25 P.S. §§ 3263(a)(1)(i) & (a)(1)(ii). To
interpret Section 1703 otherwise would negate the provision of Section 1701 that
particular fraud or error need not be pleaded. Therefore, an initial Section 1701
petition, filed within the first five days following the election, need neither be filed
in every election district for a particular election nor allege specific fraud or error.
These requirements instead pertain to secondary Section 1701 petitions filed upon
the discovery or confirmation of error or fraud resulting from the opening of a ballot
box in response to an initial petition filed pursuant to Section 1701.6 The secondary
Section 1701 petition request occurs after the initial Section 1701 petition is granted
and the ballot box opened, within the additional five-day period provided for in
Section 1703(a)(1). This secondary Section 1701 request to open additional ballot
boxes (made pursuant to Section 1703(a)(1)) must include all election districts for a
particular race and payment for each ballot box opening requested unless the
secondary Section 1701 petition alleges fraud or error with particularity.
This view comports with our Supreme Court and this Court’s
observation that the General Assembly has made the procedure to open ballot boxes
relatively easy. See 2003 Gen. Election for Off. of Prothonotary. While I appreciate
6
I appreciate the Majority’s observation that the General Assembly, in enacting the Act of
October 8, 2004, P.L. 807 (2004 Amendment), could have split Section 1703(a)(1) into two
separate subsections to clarify to which portion of 1703(a)(1) the subsections that follow –
1703(a)(1)(i)-(ii) – applied. See Majority Opinion at 16. However, while such a division of
Section 1703(a)(1) would have certainly served to clarify the operation of the Section, that the
General Assembly did not so divide the Section does not change or otherwise counteract the
meaning of or interaction between the two sentences of Section 1703(a)(1), as discussed supra.
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that our Supreme Court’s decision in 2003 General Election for Office of
Prothonotary predated the Act of October 8, 2004, P.L. 807 (2004 Amendment),7 I
note that, in enacting the 2004 Amendment, the General Assembly could have
removed this ease of procedure language from the language of Section 1701(a), but
did not. Instead, the Section 1701 ease of procedure language that allows for a
petition to open a ballot box to be brought without the specification of a particular
act of fraud or error remained unchanged in Section 1701(a) following the 2004
Amendment. See 1 Pa.C.S. § 1922(4) (“when a court of last resort has construed the
language used in a statute, the General Assembly in subsequent statutes on the same
subject matter intends the same construction to be placed upon such language”).
Moreover, instead of removing this language, the General Assembly doubled down
and reinserted exactly the same ease of procedure language again in the new Section
1701(a.1),8 which provides:
(a.1) In cases resulting from a recount or recanvass order
by the Secretary of the Commonwealth under section
1404(g), all of the following apply:
(1) Upon petition under clause (2), Commonwealth
Court shall:
(i) open the ballot box of each election district
in which ballots were used at a general,
municipal, special or primary election; and
(ii) cause the entire vote of the election district
to be correctly counted by persons designated
by the court.
7
See Majority Opinion at 18 n.9.
8
Section 1701(a.1) concerns initial petitions to open a ballot box resulting from a recount
or recanvass order by the Secretary of the Commonwealth. See 25 P.S. § 3261(a.1).
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(2) To obtain relief under clause (1):
(i) Three (3) qualified electors of a county must
file a verified petition alleging that, upon
information which they consider reliable, they
believe that fraud or error, although not
manifest on the general return of votes, was
committed:
(A) in the computation of votes cast;
(B) in the marking of the ballots; or
(C) otherwise in connection with the
ballots.
(ii) It is not 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.
25 P.S. § 3261(a.1) (internal footnote omitted) (emphasis provided). Just as “we
may not add statutory language where we find the extant language somehow
lacking[,]” this Court may not infer that the General Assembly intended to remove
language or requirements from the text of a statute where that text remains after
amendment. Sivick v. State Ethics Comm’n, 238 A.3d 1250, 1264 (Pa. 2020).
Further, as our Supreme Court has observed, “as a general rule, a later statute shall
not be construed to supply or repeal an earlier statute unless the two statutes are
irreconcilable.” HSP Gaming, L.P. v. City of Philadelphia, 954 A.2d 1156, 1175-
76 (Pa. 2008); see also 1 Pa.C.S. § 1971. An implied repeal of a statute, therefore,
“can arise only where the language used in the later statute necessarily discloses an
irreconcilable repugnancy between its provisions and those of the earlier statute so
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inconsistent as to not admit of any fair consonant construction of the two.” Id. at
1176. The 2004 Amendment in no way presents inconsistencies rising to the level
of an implied repeal of the requirements of Sections 1701 or 1703.
This interpretation also reconciles the language of Section 1701(a) that
allows the ballot box opening upon the assertion of a general belief of fraud or error
regarding “votes cast for all offices or any particular office or offices in such election
district,” with the language of Section 1703(a)(1)(i)(A), which applies to a recount
or recanvass regarding a specific office. Compare 25 P.S. § 3261(a), with 25 P.S. §
3263(a)(1)(i)(A). Unlike Section 1701(a), Section 1703(a)(1)(i)(A) assumes an
initial investigation has already revealed error or fraud in relation to the election for
a specific “office in question.” Were this not the case, the language of Section
1703(a)(1)(i)(A) would have repeated the expansive language of Section 1701(a).
In the Majority’s view, “Section 1703(a)(1)(ii) expressly states that
Section 1703(a)(1)(i) applies to petitions to open ballot boxes under Section 1701.”
Majority Opinion at 16. However, the statute does not say this. The statute says:
“Subclause (i) shall not apply if a petitioner under [S]ection 1701 . . . pleads that a
particular act of fraud or error occurred and offers prima facie evidence supporting
the allegation.” 25 P.S. § 3263(a)(1)(ii) (emphasis added). By its language, Section
1703(a)(1)(ii) applies to Section 1701 petitioners who are then filing secondary
Section 1701 petitions after the initial petitions have revealed fraud or error. Such
petitioners must file their secondary Section 1701 petition either in all districts
pursuant to Section 1703(a)(1)(i) or plead fraud or error with particularity, which
pleading would render such petitioners exempt from the requirements of Section
1703(a)(1)(i).
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Further, to the extent the Majority relies on the statement of then-
Governor Edward Rendell when he signed the 2004 Amendment into law and a
hypothetical example about the 2003 election of the Honorable Susan Gantman to
support its interpretation of Sections 1701(a) and 1703(a)(1) of the Election Code, I
do not agree that either is relevant or has merit. See Majority Opinion at 18-19.
While I agree that, where the words of a statute are ambiguous, the purpose of
statutory interpretation is to ascertain legislative intent, the Majority cites no
evidence of what the General Assembly intended. Governor Rendell’s statements
do not represent a statement of legislative intent, but instead an interpretation by the
Executive branch of the Commonwealth’s government as to the meaning of a statute
enacted by the General Assembly.9 Additionally, I agree that the language of Section
1703(a)(1)(i)-(ii) added by the 2004 Amendment and described by Governor
Rendell10 requires that a secondary Section 1701 petition either (1) be filed in all
districts where the election occurred, or (2) contain particular allegations of fraud or
error. However, the language of Section 1703 indicates that these requirements
come into play only after the initial ballot box opening finds fraud or error. See 25
P.S. § 3263(a)(1) (noting procedures for subsequent Section 1701 petitions after
“error or fraud is found . . .”). Further, Governor Rendell’s statement does not
account for Section 1701(a)’s statement that petitioners initially filing under that
9
Our Supreme Court has observed that “what is said on the floor of the House or the Senate
should not be relied upon in formulating legislative intent.” Commonwealth v. Alcoa Properties,
Inc., 269 A.2d 748, 749 n.1 (Pa. 1970); see also Nemacolin, Inc. v. Dep’t of Env’t Res., 541 A.2d
811, 815 (Pa. Cmwlth. 1988) (quoting Alcoa and further observing that “this [C]ourt has
recognized that floor debates do not constitute legislative history for purposes of statutory
interpretation”). Clearly, if we cannot not rely on the words of members of the General Assembly
themselves to deduce legislative intent for the purpose of statutory interpretation, then, a fortiori,
a governor’s words of interpretation carry no weight whatsoever in deducing the same.
10
See Majority Opinion at 19.
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section need not allege or prove specific acts of fraud or error, which remained
unchanged after the 2004 Amendment as discussed supra, nor does it account for
the General Assembly’s endorsement of this language when it added the same
language for a second time, verbatim, into the requirements of Section 1701(a.1) as
part of the 2004 Amendment.
Likewise, a close-vote scenario like the one contemplated by the
Majority’s reference to the election of Judge Gantman, while theoretically possible,
does not invalidate the necessary interplay of language contained in the Election
Code. See Majority Opinion at 19-20. Initially, I note that the results of a close-
vote scenario as occurred in the Gantman election would be subject to the automatic
recount process introduced by the 2004 Amendment. Further, the Majority’s
suggestion that the hypothetical discovery by Candidate Driscoll of a single election
district with a 29-vote discrepancy would sway the election in his favor without
recourse for then-Candidate Gantman is incorrect. In such a scenario, the second
sentence of Section 1703(a)(1) would allow “interested parties” – Candidate
Gantman, for example, or Candidate Driscoll, if discrepancies discovered as a result
of an initial Section 1701 petition indicated fraud or error – to continue with the
subsequent procedures authorized by the second sentence of Section 1703(a)(1).
Thereunder, an interested party would be able to request the opening of further ballot
boxes, subject to the additional requirements of Section 1703(a)(1)(i)-(ii) (regarding
either the pleading of specific fraud or error or the opening of all remaining pertinent
ballot boxes), which requirements were not previously imposed upon the initial
Section 1701. This language therefore allows for the continuation of the process of
opening ballot boxes as required to determine the accurate results of the election in
question, regardless of whether the contested outcome results from fraud or from
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error, provided that the fraud or error is pleaded with particularity in the secondary
Section 1701 petition.
Further, in addition to directly contravening Section 1701(a)’s express
statement that petitioners need not allege specific acts of fraud or error, requiring
petitioners to file and pay fees in all districts where an election is contested upon an
initial ballot box opening request would mean that, at least in statewide elections,
only qualified electors with access to considerable organizational and financial
resources would be able to file petitions pursuant to Section 1701(a). Such a result
would render Section 1701(a) meaningless to all but a very few petitioners. In fact,
despite adopting such an interpretation, the Majority appears to concede that, for
statewide elections at least, a requirement that three qualified electors timely file
petitions in every election district within the Commonwealth renders a Section
1701(a) petition to open a ballot box virtually impossible without the pleading of
particular fraud or error. See Majority Opinion at 20 (stating that, “[i]n practical
terms, it is highly unlikely anyone would be able to arrange for three petitioners to
timely file petitions to open ballot boxes in every election district in the
Commonwealth”). Further, the Majority’s suggestion that the cost of such an
endeavor would not present barriers to employing this procedure is dubious. See
Majority Opinion at 20 n.9. Even accepting the Majority’s utopian suggestion that
the cost of filing of petitions to open ballot boxes would be shared equally among
the qualified electors required to file such petitions in the Commonwealth’s 9,178
election districts, such optimism still does not resolve the Majority’s own
acknowledgment that the timely organization of the required 27,534 individual
qualified electors necessary to file such petitions would be all but impossible. See
Majority Opinion at 20 & n.9.
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The Majority’s interpretation also ignores the fact that Section 1701(a)
is not limited to small or local elections. See Majority Opinion at 20-21. While the
Majority notes that Section 1701(a) is applicable and would work well in small
elections, the Majority offers no textual support for the assertion that Section 1701(a)
does not apply to larger races. See id. Accordingly, under the Majority’s reading,
the same language from Section 1701(a) would provide protections only in certain
elections while simultaneously not applying those protections in others. This Court
may not interpret the Election Code to require such an unreasonable and/or absurd
result. See Summit Sch., Inc. v. Dep’t of Educ., 108 A.3d 192, 197 (Pa. Cmwlth.
2015) (“It is presumed that the legislature does not intend a result that is absurd,
impossible of execution or unreasonable. [] 1 Pa.C.S. § 1922(1). Thus, statutes
should receive a sensible construction and should be construed, if possible, so that
absurdity and mischief may be avoided.” (internal citations, quotation marks, and
brackets omitted)). Further, such a reading ignores the fact that the General
Assembly added Section 1701(a.1) to Section 1701 as part of the 2004 Amendment.
Section 1701(a.1) pertains to recount/recanvass orders of the Secretary of the
Commonwealth, whose jurisdiction extends to statewide elections.
The 2004 addition to the Election Code of the automatic
recount/recanvas procedure for statewide elections where the final ballot count
results in one candidate losing by 0.5% or less of the vote cast for the office does not
remedy the impossibility of the application of the Section 1701 procedures to
statewide elections. See 2004 Amendment; 25 P.S. § 3154(g)(1)(i)-(ii). This recount
provision is triggered automatically based on vote tabulation. Sections 1701(a) and
(a.1), on the other hand, provide procedures to request the opening of individual
ballot boxes to investigate the quite different scenario of suspected fraud or error.
CFC - 15
Of course, the General Assembly was free to remove or refine the Section 1701(a)
procedures for petitions to open ballot boxes when amending the Election Code in
2004, but did not. Instead, it added the same language a second time in Section
1701(a.1).
Likewise, the Majority’s observations regarding the public nature of
the Commonwealth’s election procedures and the fact that Section 417(a) of the
Election Code, 25 P.S. § 2687(a),11 provides for the appointment of poll watchers
by candidates or political parties/bodies to observe the election process do not nullify
the additional election integrity protection afforded by allowing unattached qualified
electors to file petitions to open ballot boxes pursuant to Section 1701(a). See
Majority Opinion at 21-22. Section 1701(a) is not limited to appointed poll
watchers, but instead, by its language, allows for any three qualified electors to
engage in such a process. The General Assembly chose to include in the Election
Code both the Section 1701(a) and Section 1703(a)(1) procedures discussed herein
in addition to the protections provided by the public nature of the Commonwealth’s
election procedures and the appointment of poll watchers via Section 417(a) of the
Election Code.
11
Section 417(a) of the Election Code provides:
Each candidate for nomination or election at any election shall be
entitled to appoint two watchers for each election district in which
such candidate is voted for. Each political party and each political
body which has nominated candidates in accordance with the
provisions of this act, shall be entitled to appoint three watchers at
any general, municipal or special election for each election district
in which the candidates of such party or political body are to be
voted for. Such watchers shall serve without expense to the county.
25 P.S. § 2687(a). A poll watcher must be a qualified registered elector of the county in which
he/she is appointed. See 25 P.S. § 2687(b).
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I appreciate the Majority’s concern that a petitioner may seek to use
Section 1701(a) as an avenue to confirm for themselves the accuracy of the elections
in question. However, if such a petitioner articulates a general belief that fraud or
error occurred, and meets the other requirements of Sections 1701(a) and 1703(a)(1),
the Election Code allows for such confirmation. I reiterate our Supreme Court’s
statement that the General Assembly purposely made the procedure to open ballot
boxes relatively easy to accomplish (requiring only a verified belief that “fraud or
error, although not manifest on the general return of votes made therefrom, was
committed in the computation of the votes . . . ”). See 2003 Gen. Election for Off.
of Prothonotary, 849 A.2d at 239; 25 P.S. § 3162(a). Additional protections against
abusive use of the Section 1701 petition are found in Section 1703, which requires
particular fraud or error to be pleaded in secondary Section 1701 petitions (in the
absence of filing the subsequent petitions in all election districts where the election
was conducted). Where fraud or error is not found upon the initial opening of a
ballot box pursuant to Section 1701(a), then the inquiry is complete and ends without
triggering the additional petition procedures provided in Section 1703(a)(1).
While I agree with the Majority that the Election Code does not allow
for the hand recount requested by petitioners, I conclude that Section 1701(a) and
Section 1703(a)(1), as currently drafted, do require a court of common pleas to grant
a verified petition to open a ballot box without specification of particular fraud or
error brought within five days after the completion of the computational canvassing
of all returns. Accordingly, I respectfully dissent.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
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