Written and Researched by Ren Jander, J.D. Nov. 28, 2016
Everything you've been reading about a possible recount of the 2016 Presidential Election in Pennsylvania is wrong. There will be no "recount" in Pennsylvania. Book that. It is not speculation. It is legal fact. The broad spectrum of analysis from the blogosphere, Facebook and Twitter is pathetic. Seeing non-lawyer journalists mangle complicated election statutes so brazenly is not only sad but dangerous. It's giving an emotionally triggered part of the electorate false hope. And it simultaneously creates conditions for the destabilization of the nation when hyper-emotional election expectations are thwarted, as they most certainly will be.
As for Jill Stein's successful public cry for millions, she claims at her website that "fundraising for Pennsylvania's voter-initiated recount" has already been complete. The statement is fraudulent on it's face, in that she has been raising a ton of money when, in fact, there will be no "voter-initiated recount". According to Pennsylvania law, no "recount" or "recanvassing" is possible. Trump won by more than .5% of the vote. Had he won by less - according to Section 1404(g) of Pennsylvania Election Code - there could have been an automatic recount ordered.
The next possibility was for voters to allege "fraud or error" in the tabulation of votes by a certain deadline that has already passed. The unofficial county-by-county returns were submitted, according to law, by November 15th, and any petition for a recount alleging "fraud or error" in the counting (or canvassing) of ballots had to be inititated by at least three petitioners within five days after November 15th. Pennsylvania Election Code states at Section 1404(f):
"Returns under this subsection shall be considered unofficial for five (5) days. The county board shall submit the unofficial returns to the Secretary of the Commonwealth by five o'clock P. M. on the Tuesday following the election...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 in accordance with the provisions of this act... the county board shall certify the returns so computed in said county in the manner required by this act."
The recount bird has flown in PA. End of story. Further proof is found in the section of PA Code dedicated specifically to "Recounts", Article XVII(a). While the PA Code does allow ballot boxes to be opened within four months of an election, and machines to be examined within twenty days of an election, any petition for a recount must be timely, within those five days after the unofficial returns are submitted to the Commonwealth Secretary. Section 1703 (a)(1) states:
"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."
The process within that five day window was rather simple, but unfortunately for those desperate to recount in PA, the deadline has passed. They needed only three voters to allege "fraud of error" as to the counting of ballots. They didn't even need to allege specific facts or to prove the case. Sections 1701 (re paper ballots) and 1702 (re voting machines) both state that the votes shall be recanvassed:
"[I]f three qualified electors of the election district shall file a petition, duly verified by them, alleging that, upon information which they consider reliable, they believe that fraud or error...was committed in the canvassing of the votes...It shall not be necessary for the petitioners to specify in their petition the particular act of fraud or error they believe to have been committed, nor to offer evidence to substantiate the allegations of their petition."
That simple process is gone. Elvis left the recount building after the five days went by.
Now, you may have been hearing from Jill Stein that the deadline to recount in Pennsylvania is today, November 28, 2016, twenty days after the election. You've been hearing wrong. The November 28, 2016 deadline is not for a recount. It's a deadline to "Contest" the election. And this is where we call Jill Stein out for conspiring to defraud the electorate as well as defrauding folks donating to her efforts.
The Pennsylvania Election Code makes a clear distinction between "Recounts" and "Contests". Article XVII (a) is titled "Recounts", whereas, Article XVII (b) is titled, "Classes of Nomination and Election Contests." These are two vastly different beasts.
The fraud comes with knowledge of the fact that Jill Stein's website has been collecting millions of dollars in funds for a "voter-initiated recount" in Pennsylvania. Triggering a recount was simple under the statute, and had she been timely in her efforts to enlist Pennsylvania voters, she might have been able to truly use the funds raised to make a recount happen in PA. But she's too late, and yet she's still defrauding people by claiming the money will be used for a "voter-initiated recount." That she may try to use the funds to "Contest" the election instead means that the funds were raised via fraudulent representation. There will be no "recount" under Pennsylvania law.
Jill Stein should really stop now and come clean with the electorate in PA before leading voters, who might attempt to follow her down the road to contesting the election, to criminal penalties should they commit perjury or fraud in their petitions. Constesting the election - as opposed to petitioning for a recount - involves a process that requires a much higher standard of proof.
Section 1731 requires that one hundred electors (voters) must petition to contest an election for Electors of President and Vice-President in the Court of Common Pleas in Dauphin County. In the statute, all voters generally are discussed as "electors", but don't confuse them with the specific electors who will attend the electoral college (EC) on December 19th. The general electors of the state are simply voters who, in voting for President and Vice-President, are actually voting for a slate of twenty specific electors to vote in the EC.
Section 1756 requires that the petition to contest the election be brought within twenty days of the election, that is by today, Nov. 28th, 2016. Section 1756 also states:
"The petition shall concisely set forth the cause of complaint, showing wherein it is claimed that the primary or election is illegal..."
So this is quite different than alleging the votes were simply mis-counted. The petitioners must allege that the election was illegal. Section 1757 requires that at least five of the one hundred petitioners must file a sworn Affidavit under penalty of perjury:
"Such affidavits shall be taken and subscribed before some person authorized by law to administer oaths, and shall set forth that they believe the facts stated therein are true, that according to the best of their knowledge and belief, the primary or election was illegal and the return thereof not correct, and that the petition to contest the same is made in good faith."
Considering that there is absolutely no evidence that the election in Pennsylvania was illegal, nobody can legally swear out such an affidavit. Evidence is something tangible indicating illegality. Simply alleging that Democrats did better in certain places in past elections is not evidence of illegality. No damn way. And anyone who follows the election piper named Jill Stein down this path is going to be in serious legal jeopardy.
Article XVIII concerns "Penalties" for violating the Pennsylvania Election Code. Section 1802 deals with "Perjury":
"Any wilful false statement made under oath or affirmation or in writing, stating that it is so made, although such oath or affirmation may not have actually been made, by any person regarding any material matter or thing relating to any subject being investigated, heard, determined or acted upon by any county board of elections, or member thereof, or by any court or judge thereof, judge of election, inspector of election, or overseer, in accordance with the terms of this act, shall be perjury, a misdemeanor of the first degree, and any person, upon conviction thereof, shall be sentenced to pay a fine not exceeding ten thousand ($10,000) dollars, or to undergo an imprisonment of not more than five (5) years, or both, in the discretion of the court."
Five years in prison is waiting for anyone who fails to heed the warning being offered here today regarding the filing of a petition to contest the election in Pennsylvania.
Recall that Jill Stein's website is not saying she will file the necessary petition in Pennsylvania thereby subjecting herself to this perjury. Instead, she has collected funds for a "voter-initiated recount." If she were honest, she would instead be calling it a voter-initiated contest. And if she were truly concerned with the danger such voters would be in, she would be the one publishing the warnings you are reading now.
Section 1758 requires that the petition to contest the election set out a "prima-facie case". This is a legal term that means a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party.
So, in order to petition to contest the election, it will require five PA voters to swear, under penalty of perjury, to facts that, on their face, establish that the election was illegal. If these petitioners have no facts establishing - on their face - that the election was illegal, there will be no contest. The prima facie case must be established before the Court of Common Pleas. Since there are no facts that establish that the election was illegal, anyone making such a petition should fail. And if they play fast and loose with the facts in their petition, they will also be guilty of perjury.
Additionally - wait for it Jill Stein - anyone who is suborning such perjury by fraudulently claiming they are raising funds for a "recount", when in reality they are raising funds for a voter-initiated contest, is guilty of conspiring to commit fraud upon the 2016 election process. Jill Stein knows that there are no facts establishing a prima facie case that the Presidential election in Pennsylvania was illegal.
One of the people most quoted in the run up to this so called recount effort is J. Alex Halderman, a professor of computer science at the University of Michigan, who wrote a recent article at Medium.com concerning alleged irregularities from swing states in the recent election. This paragraph has gone viral:
Were this year’s deviations from pre-election polls the results of a cyberattack? Probably not. I believe the most likely explanation is that the polls were systematically wrong, rather than that the election was hacked. But I don’t believe that either one of these seemingly unlikely explanations is overwhelmingly more likely than the other. The only way to know whether a cyber attack changed the result is to closely examine the available physical evidence — paper ballots and voting equipment in critical states like Wisconsin, Michigan, and Pennsylvania. Unfortunately, nobody is ever going to examine that evidence unless candidates in those states act now, in the next several days, to petition for recounts.
The highlighted portion above is illustrative as to why there should be no "contest" of the election in Pennsylvania. There is no prima facie case, no facts that, by themselves, establish that the election in PA was illegal. To establish a prima facie case, your petition, if taken at face value - before any rebuttal by the opposing side - must set out facts that, if accepted as true, establish that the election was illegal. Simply wanting to be extra positive that there was no hacking, as Prof. Halderman wishes to be informed, does not meet the standard of establishing a prima facie case.
If Mr. Halderman, and Jill Stein were to carefully read the Pennsylvania Election Code, Articles XIV-XVIII specifically, they would note the rigid careful process that must be followed in each county district before the votes can be certified. It is a rigorous process open to the public by law, and if procedures had been violated, or machines hacked, it's more likely than not that something, some evidence - other than just a result people weren't expecting - would have been noted. No such evidence has been forthcoming.
Now let's talk about conspiracy to defraud the 2016 election in Pennsylvania by Jill Stein.
I find it incredibly rich that Jill Stein's call to action at her website fundraising page states, "Integrity Depends on YOU!" Jill Stein knows there will be no "recount" in Pennsylvania, but she took your money for a "voter-initiated recount". As stated above, recounts and contests are not the same thing. She is defrauding people, and she is tampering with the 2016 election results, and the electorate, and she is calling others into her fraudulent conspiracy, and placing them in legal jeopardy.
Jill Stein is aware of Prof. Halderman's analysis, wherein he states that the elections were "probably not" hacked, and she is still calling the PA voters to action, when there is no legal action they can take. Where is the integrity in that?
"Section 1827. Interference with Primaries and Elections; Frauds; Conspiracy" states:
"If any person shall...conspire with others to commit any of the offenses herein mentioned, or in any manner to prevent a free and fair primary or election, he shall be guilty of a felony of the third degree, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding fifteen thousand ($15,000) dollars, or to undergo an imprisonment of not more than seven (7) years, or both, in the discretion of the court."
One of the offenses "herein mentioned" in the Pennsylvania Election Code is perjury. Jill Stein should know that anyone swearing out a petition to contest this election based upon her statements and fund raising literature will be committing perjury. Conspiring to have them do so is a felony punishable by up to seven years in prison.
There will be no recount in Pennsylvania. There should be no election contest in Pennsylvania either. There are no facts that will support a prima facie case of illegality. Jill Stein should end this in a very public manner, return the funds collected for the fraudulent recount effort in Pennsylvania, and she should pray that the Commonwealth of Pennsylvania does not have a prosecutor with the spine to make a proper example of her.