Friday, December 2, 2016

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.


27 comments:

  1. Thx for the hard work and update. I am concerned too over the 22,000 'found' votes to HRC Friday; how can:
    1. these be found so late in cycle and most important:
    2. place PA on cusp of a auto triggered recount (0.5%?)SO late in the game so as to not meet Cert timelines?

    IOW does PA law + practices allow for count to change 3+ weeks from election day; to point of triggering a recount in a timeframe too late to allow for certification?

    If so why have elections? In close races, delay recount requests in a few select states so that both fail-to-certify AND theft can occur 3-4 weeks past election day

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    2. Yes so to overturn an election it's easy. Find 3-4 tight races where you lost. Delay action then file recount till there is 0% chance ECs can be submitted. Why have elections just let counters + dates + lib courts steer the election to the favored result.

      Then again assuming JS DOES flip a state THEN in January her newly found ECs SHOULD count...(but not the DT one's re-re-re certified in her losing state.

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    3. Hello, please link to a PA SOS source to show the 22k found votes for HRC you speak of. This page still shows Trump with a 68k lead. What am I missing? http://www.electionreturns.pa.gov/ENR_NEW

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    4. Can't find the specifics, but many sites are showing the updated counts. Your link is from Nov 9th. The fact they are counting, counting, counting here in December, past all deadlines, recanvassing for a recount effort, is the issue. What is going on right now, is more of an issue of what was going on during the election. Almost looks like a power play that is illegal.

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    5. Actually you are right Candice. I did some digging and found the 'she gained' claim is coming from a Twitter account run by anti-Hillary people from a site called Ace of Spades. It is substantiated here: https://twitter.com/DecisionDeskHQ/status/804479284001681408
      When you go to the specific Philly county results they have been updated with an increase (compared to the PA SOS site) to Hillary of over 20k. I don't know how much cheating has happened but I hope will finally be rooted out and prosecuted.

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    6. And now the question is does this drop place PA in automatic recount territory??

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    7. Apparently the law allows counties to do whatever they want but in a sane world If Philly can't manage to get it's results done on time the entire county's results should just be eliminated from PA's totals, too bad, so sad. Maybe it would motivate Philly voters to elect more competent, above-board people to be in charge of their elections for next time.

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    9. Yes...5 on Friday the 2nd. What about Tuesday the 6th as more Lib districts continue to count new votes? Point being for 1st time Dec 6 an auto recount may be triggered by design way late into the process. And what if in the futre the House is closers or run by Dems? Guess the Founders didn't see the extent of evil in 2016 Libtards.

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    10. Right. but even if the 0.5 was reached at this point, it would be in an unknown territory due to inherent dates. There is a reason, that in many States, they require at least a certification by a certain deadline. Here, seems to be a malady, where you have at least 2 counties without certification. That simple concept could "in theory" disenfranchise the entire state EC. There could be an argument that is the plan, but I am not jumping to conclusions. I just want it to be lawful. Most of what Jander is reporting is the legal repercussions, precedents, etc of what is going on. Aside from that, you do have to ask yourself, "why" did Stein wait so late. "Why" are they recanvassing in PA. From Jander's argument, which looks fairly clear cut, by all means and reason, the rule of law states these deadlines have passed and the cut off date is not this infinite period that Stein/others seem to want to use. They have no evidence, other that what I am thinking a laymans " hear-say " about totally irrelevant issues concerning the DNC emails, etc. None of that seems to be in any way related to their case, just a hypothetical. Trumps filing today exposes that, or is trying to. I am sure Jander can explain it much better than any of us, but I do understand what is at play here. There is more activity going on NOW, than during the election it seems. I am just glad that people have been sent into PA to quell this, while not just allowing the Michigan and Wisconsin sideshow go by, while the rug gets slowly pulled out from under them in PA. I am still at a loss on the legal dates from Trumps filing claims of the 28th, as to what this research is showing, otherwise the two arguments are near identicle. Unless I missed something

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    11. So how many counties are left to be certified in PA?

      And which ones are they?

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    12. According to the Philly commissioner, the final tally included absentee and provisional ballots. That accounts for the 22K.

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    13. As for the counties. I think, but don't quote me... Philadelphia, Alleghany are two that I know of as of yesterday. That is also part of the issue, according to Philly, they were to start a recount today. Not sure what Alleghany county is doing, or has done. The issue is more or less the lawfulness of the deadlines, the rules of recount. What/Why/How do you deal with what is basically an infinte ability to recount.... which stemmed from what the Sec of State put out to the Districts yesterday. It is giving the impression that all counties can decide upon petition status to recount it seems, yet mysteriously, the code of Election laws that was listed in part one of this seems to have been missed. Or at least that is my interpretation of what is going on. Michigan, for example, counted. was within the 0.5%, so they did a mandatory recount. They certified that count not long ago. That doesn't mean a judge cannot order another, but at least there is a certification in, in case a judge throws things into a turmoil. The Sec of State might very well use those certified results in the event a recount is not finished in time. Which I feel is why many common sense would suggest certification before a recount starts that may not finish in time. ( Trump, could have up to a week to contest it, and Stein wanting hand recounts of millions is fishy due to the time table ) So far in some cases I think judges have denied that. I suspect many of these cases in PA are soon to be denied, but the counties not certified is a nightmare to even begin to think what will happen. BTW, none of what I am commenting has any legal authority whatsoever, and is just an opinion.

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    14. The source says that both counties you mention updated their results, presumably meaning that both have been finalized (although Alleghany delayed certification to handle the recount requests).

      https://twitter.com/DecisionDeskHQ/status/804769567364890626



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    15. Indeed, Alleghany county's final computation was on Nov 23, as mentioned in the article below. So we shouldn't expect anymore significant gains by Hillary in the vote margin.

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    16. Here's the final computation for Alleghany county.

      http://www.county.allegheny.pa.us/elections/results/2016-general-results.aspx

      They were about to certify on Nov 28 all that was needed was a few signatures), then Jill challenged it. It's highly doubtful that a few precinct recounts on Dec 5th will change much.

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    2. This is so so not good. How did we get to this point like wow!!!!

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    3. PA will reach the .05% this weekend with lawless judges ignoring election law + manuf votes in other counties. THEN come Monday the screaming will start;see, under .05% we need the full recount. Can 't beleive PA allows for votes to come in over 4 weeks that puts them over-n-under the recount number. And too late to recount and certify. Guess they are fine with disenfranchising 50% of its citizens, as longs as it's those 'wrong' citizens.

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    4. But the two liberal strongholds have already finalized.

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  5. Don't know if it matters but I called Philly County earlier and was told they had 20 days to certify and requested an extension from the SOS. It was granted.

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    1. They requested an extension to deal with the few recount requests, but the final results have already been posted (as of Nov 29th).

      http://www.philadelphiavotes.com/en/home/item/498-unofficial-complete-results-announced-at-the-computation

      A handful of recount requests in Philly county and Alleghany couny are unlikely to bring Hillary within the 0.5% margin.

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