Part 2: THE PETITION TO CONTEST THE 2016 PRESIDENTIAL ELECTION IN PENNSYLVANIA IS STATUTORILY DEFECTIVE AND MUST BE DISMISSED WITH PREJUDICE.

[UPDATED with Bensalem case.] 

POINT ONE:  The petition to contest the election is not supported by verifications that strictly conform to the Election Code as interpreted by the Pennsylvania Supreme Court.

POINT TWO: The petition to contest the election contains no facts or specific allegations whatsoever alleging illegal activity on the part of anyone involved with or participating in the 2016 Presidential election in the state of Pennsylvania, and therefore the petition must be dismissed with prejudice.

[This post will be updated with comprehensive arguments to each point above, supported by legal precedents later today, December 2, 2016. Use the links attached to the points above for information related to forthcoming arguments.

Also note that by order of the Commonwealth Court, counsel for Donald Trump's Electors must file their response to the Election Contest by noon today. You can view pdf versions of all documents filed in the case at this official PA Courts link.

I will now offer a preliminary argument as to point one.]

 POINT ONE:  The petition to contest the election is not supported by verifications that strictly conform to the Election Code as interpreted by the Pennsylvania Supreme Court.

In a previous report, I stated that Jill Stein and her team would be subjecting petitioners to perjury charges should they swear to anything they know - or have reason to believe - is false in their verification affidavits. It appears Jill Stein and her counsel are actually afraid - as they should be - of being subjected to felony subornation of perjury charges, as I discussed previously, should petitioners relying upon Stein's persuasions actually swear to incriminating verifications.

Look carefully at the verifications submitted to the Commonwealth Court. Some are notarized and some are not. According to the Pennsylvania Supreme Court's holding in this 2004 case, the verifications that are not notarized are clearly not sufficient to confer jurisdiction upon the court.

Only five properly verified petitions are necessary to confer jurisdiction. The notarizations attached to some verifications are also not sufficient to confer jurisdiction, but Stein's lawyers have attempted to obscure the technical deficiency. The verifications with notarizations attached are also not sworn statements sufficient to subject petitioners to perjury charges, as is required to avoid the case being dismissed with prejudice, since the deadline to file has now passed and they cannot cure the fatal defect, as was confirmed by the Pennsylvania Supreme Court.

Counsel for petitioners has offered the exact same verification signed by all petitioners. Counsel's letter to the court that preceeds the verifications states:

"Kindly substitute and attach the enclosed 122 verifications and Notarized affidavits to the Petition filed in the above captioned matter."

That filing includes 122 verifications, but it does not include 122 notarizations. It only included 44 notarizations. Just as counsel's letter indicates, two separate kinds of documents are being attached - verifications and notarizations.

The trick employed by counsel is that the notarizations do not attest that petitioners swore by oath or affirmation that the facts presented in the verifications and the petition are true. No, the notarizations attached to the verifications only attest to the fact that petitioners swore that their statements were made subject to the penalties regarding unsworn falsifications to authorities. Therefore, the verifications are not sufficient to confer jurisdiction according to the Pennsylvania Supreme Court, the highest court in the Commonwealth.

All of the verifications state:

"I understand that this statement is made subject to the penalties of 18 Pa. C. S. Sec. 4904 relating to unsworn falsification to authorities."

The Pennsylvania Supreme Court specifically held that such a declaration is not sufficient to confer jurisdiction, and in that case petitioners' verifications were held to be fatally flawed as a result of using the exact same form of verification as was used here. Counsel for petitioners has attempted to cure that fatal flaw by including notarizations of the insufficient verifications. But this is nothing more than a parlor trick. And the entire petition should be dismissed with prejudice.

Since the petitioners have only sworn before a notary to a verification that does not expose them to penalties of perjury, Jill Stein and her counsel have protected themselves from being subjected to subornation of perjury charges - a felony - whereas violation of 18 Pa. C.S. Sec 4904, relating to unsworn falsification, is only a misdemeanor. And I do not believe there is a penalty for suborning unsworn falsification. There may be one, and there should be, but I am not aware of such a charge as of writing this post.

This is dirty pool, folks. The poor citizen petitioners are now subject to a misdemeanor charge under 18 Pa. C. S. Sec 4904, but Jill Stein and her counsel are not subject to the same penalties, nor are they subject to felony subornation of perjury. But they can't have it both ways, since the Supreme Court requires verification in Election Code cases to conform to a higher standard than being subject to the penalties for unsworn falsification. Therefore, the Commonwealth Court lacks jurisdiction and the petition must be fatally dismissed. The deadline has passed, and the petitioners will not be allowed to amend the petition.

The reason petitioners would have been subjected to perjury - had they signed sufficient verifications in the form of affidavits that meet the higher standard as required by the Statutory Construction Act (read the PA Supreme Court Case) - is that they are required under the Election Code to swear, "that according to the best of their knowledge and belief, the primary or election was illegal."

Petitioners can't actually swear to that without subjecting themselves to felony charges, or misdemeanor charges for unsworn falsifications, since there is no evidence that anyone involved with conducting, or participating in, the 2016 Presidential Election in Pennsylvania broke the law. Nothing in the petition alleges a single fact indicating illegality in Pennsylvania. The petition only alleges hypothetical situtations were plausible as to the Election in Pennsylvania, whereas, the Election Code requires petitioners swear the Election was actually illegal, and they cannot swear to that without breaking the law. 

Finally, the petitioners' affidavits are fatally deficient for another reason, in that the Election Code requires that the verification by "affidavit shall...set forth that they believe...the primary or election was illegal..."

It's not good enough simply to refer to the petition in alleging the election was illegal. And the petition does state that the election was illegal. But the Election Code requires that the five petitioners who are brave enough to swear to the truth of the statements contained in the petition, must also include in their personal affidavits a statement averring that the election was illegal:

"§3456, requires the petition for contest to specify "wherein it is claimed that the primary or election is illegal"; section 1757, 25 PS §3457, prescribes the content of the affidavit thereto that according to the affiants' knowledge and belief "the primary or election was illegal and the return thereof not correct."

BENSALEM TOWNSHIP SUPERVISOR ELECTION 
CONTEST

26 Pa. D & C. 2d 433 (1961)

None of the verifications - notarized or not -include a statement alleging that the election was illegal. And therefore, for that reason, and all of the others discussed above, the petition to contest the election must be dismissed with prejudice.

Written and researched by Ren Jander, J.D.