Judge orders Fayette elections bureau to turn over ballots, vote records
A judge ordered the Fayette County Elections Bureau to turn over its digital “cast vote record” tabulation and copies of paper ballots in several precincts from the primary election that are being challenged as petitioners are aiming to review those votes and possibly request a countywide recount.
Senior Judge John F. Wagner Jr.’s ruling followed an hour-long motions hearing Wednesday in Fayette County Court of Common Pleas. The county still has election challenges pending ahead of an Aug. 22 hearing in which Wagner must determine whether there should be a recount in the Republican race for county commissioner in six precincts.
The petitioners have raised concerns over whether “bleed-through” pen markings on the paper ballots cast by voters at the polls could alter the correct count. But elections officials said such bleed-through on ballots does not affect the counting process and are adamant that the May 16 primary election results are accurate.
“In the end, I believe you’re correct and nothing wrong was done,” Wagner said about the elections office’s work during the primary. “But until somebody can look at the stuff, you’ll have a percentage of people who don’t believe you.”
The challenges are being spearheaded by Fayette County Recorder of Deeds Jon Marietta Jr., who ran for county commissioner as a Republican, but finished in third place in the primary behind incumbents David Lohr and Scott Dunn. Marietta lost the GOP nomination to Dunn by 121 votes, and he is hoping a recount of specific precincts will show irregularities that could force the recount of the entire GOP race for commissioner.
Marietta sat just behind his Mt. Lebanon-based attorney Greg Teufel during the hearing and had a crowd of supporters in the gallery, who Wagner had to silence at one point when they broke out in applause in the courtroom.
In addition to the “cast vote record” and ballots that had bleed-through markings on them, Wagner also ordered the elections office to provide within three days copies of all documents used in adjudication of the ballots along with copies of the outer envelopes for mail-in and absentee ballots in the six precincts.
The disagreement between the two sides centers around whether the challengers should have physical access to the cast vote record and copies of the ballots. The state elections code states that “the contents of ballot boxes and voting machines and records of assisted voters” are not open for public inspection.
The cast vote record, or CVR, is essentially the electronic contents of the ballot box in which a voter’s decisions could theoretically be matched with the person when he or she signs in to vote. The access to copies of ballots also could identify a voter by his or her handwriting with write-in candidates, while the outer envelopes for mail-in and absentee ballots raises concerns about voter privacy involving signatures.
Elections Board solicitor Sheryl Heid questioned the need for copies of ballots showing bleed-through because they are only a sample of the total votes and would not be comparable to the final tally. She also noted that the elections bureau already conducted a 2% audit of the vote as required by law, which showed no irregularities during the primary. Heid added that petitioners challenging two of the six precincts did not allege any problems at their own polling place, but offered “hearsay” evidence when they talked to voters elsewhere.
“Why do you need them? These machines have been tested for bleed-through,” Heid asked about the CVR records and copies of the ballots. “What they’re attempting to do is their own recount. But they don’t have every ballot.”
“Here’s what we think occurred and here’s what actually occurred,” Teufel said of why they want time to review the ballots.
Wagner wondered aloud how the petitioners would be able to mount a reasonable case without evidence. However, in typical election challengers, petitioners testify to what they observed at their polling place that could be construed as fraud, with a low bar of prima facie evidence taken at “face value” in an attempt to persuade a judge to order a recount. But Wagner seemed to take the motions hearing even further, agreeing that the petitioners should have access to elections materials – including copies of ballots – to use as evidence before he rules.
“We’re back to where we were before,” Wagner said. “Let’s just recount the ballots.”
“I don’t think it’s right to ask the elections board to do anything but follow the statute,” Heid said.
Heid declined to say whether the county will appeal Wagner’s order or request clarification from the state Department of State regarding the cast vote record and ballots. A spokesperson for the department declined to comment on whether its office might get involved in the legal matters of the case.
Teufel said he is expected to depose Elections Bureau Director MaryBeth Kuznik on Friday as part of his case. He indicated after the hearing that depending on how Wagner rules Aug. 22, the challengers may attempt to force a countywide recount of the commissioners race.
“It’s ridiculous to say that a petitioner can only use their own personal observation as evidence,” Teufel said about the challenge process and the need for physical evidence.
This is not the first time Teufel has been involved in an election challenge. Following the 2020 presidential election, Teufel filed a motion with the state Supreme Court, and later an application for injunction with the U.S. Supreme Court, over the handling of mail-in ballots in an attempt to block the certification of the elections results in Pennsylvania.
The clock is now ticking on Fayette County’s ballot preparations with less than three months until the Nov. 7 general election. The elections board last month certified all races in Fayette County except for Republican county commissioners results. But, with possible appeals following Wagner’s impending ruling, court decisions will need to be made quickly in order to prepare for the upcoming election.
The six precincts involved in the challenge are Connellsville Township, Dunbar Borough, South Connellsville Borough, the third precinct in George Township and precincts one and three in Bullskin Township. The number of votes in the six precincts account for fewer than 2,000 votes out of the 11,883 voters who cast their ballots in the Republican Party primary.