Fayette County judge shuts down losing Republican candidate’s recount request
A judge in Fayette County shut down efforts made by the losing Republican candidate for board of commissioners for a countywide recount of primary election results.
During a motions hearing Wednesday, Court of Common Pleas Senior Judge John F. Wagner Jr. declined to rule on the arguments made by Jon Marietta Jr. – who wants a total recount after finishing third out of four candidates in the Republican primary on May 16 – because he was not the judge assigned to the case.
That random assignment was given to Judge Joseph M. George Jr., prompting a tense back and forth between the senior judge and co-plaintiffs Marietta and Delaware County resident Greg Stenstrom, who is not an attorney but considers himself the “designated representative” for Marietta.
“If it works its way back to me, I’ll consider it,” Wagner said of the motions asking for an emergency injunction to decertify the primary election and order a recount.
Marietta finished in third place behind incumbent Commissioners David Lohr and Scott Dunn, with Marietta losing the nomination to Dunn by 121 votes.
Marietta had previously asked for a recount of multiple precincts after concerns were raised about whether “bleed-through” from pen markings on the paper ballots could affect how the Dominion scanning equipment counted the votes. A negotiated agreement between Marietta and elections officials allowed for the recount of six precincts to occur on Aug. 21 and 22, which showed one discrepancy out of nearly 1,500 in-person ballots counted.
However, Marietta and Stenstrom have filed numerous motions over the past two weeks alleging discrepancies with mail-in votes, among other issues. The filings name as defendants county election board members Mark Rowan, Robert Lesnick and John Kopas II, as well as board solicitor Sheryl Heid.
“This is about election integrity. There’s no doubt about it,” Marietta said. “This is not about any candidate.”
“This is about restoring the public’s trust,” Stenstrom added. “The public’s trust has been breached here.”
That led to a strong rebuke from county solicitor Jack Purcell, who said the motions contained “outrageous claims,” while also noting that the court documents were not properly served to the defendants.
“This case is keeping me up at night because these people are making claims … that have no basis in fact. It needs to stop,” Purcell said. “I will not cede to them that they are here for democracy. We are the ones who are trying to hold fair elections.”
Among the claims by Marietta and Stenstrom are that the elections board held an illegal private meeting to certify the election, in violation of the state’s Sunshine Law. The elections board certified the primary results for the commissioners race during the special Aug. 30 meeting, which a newspaper reporter attended, after Wagner’s order stated there was no fraud or errors in the six precincts where the recount was conducted.
A reporter listening to Marietta and Stenstrom address a group of supporters outside the courthouse following Wednesday’s hearing informed them that the proper legal advertisement for the meeting was published in the Herald-Standard newspaper on Aug. 29 in advance of the meeting, along with an announcement posted on the county’s website.
“I’ll take the loss on that,” Stenstrom said, although he added that he planned to view a copy of the newspaper to verify it for himself.
In addition, the co-plaintiffs also claimed that a state government airplane carrying Gov. Josh Shapiro to Connellsville on Aug. 31 for an announcement about the state’s new Office of Outdoor Recreation was actually used to transport the county’s electronic voting equipment out of the area to avoid a recount. They also contend the plane flew from Connellsville to the airport in Latrobe and was met there by a cargo plane, which they claim flew the election equipment to an unknown location.
A newspaper reporter was permitted on Sept. 6 – under the supervision of Fayette County Election Bureau Director MaryBeth Kuznik – to tour the large, secure room where the election equipment for all of the county’s 77 precincts is stored. The ballot scanners, touchscreen machines and printers for each precinct were neatly lined up in three rows in the room. All of the equipment had precinct identification stickers and security tags attached to them, and finger smudges were still visible on the screens from voters using them during the primary.
Marietta and Stenstrom also claim they found 40 total vote discrepancies – mostly through mail-in ballots – that they thought should necessitate a countywide recount. Both said the error rate was higher than what the county claimed occurred with the one additional vote being tabulated during the recount. Marietta, who also serves as county recorder of deeds, argued that all of the primary election results should be nullified because of issues that he claims affected all the races.
“I thought the process is flawed,” Marietta said. “I think there are definite discrepancies.”
Reached for comment after the hearing, Heid denied that there were 40 discrepancies in the vote total and said the plaintiffs have provided no evidence of such errors. She added that Marietta’s original challenge involved only the “bleed-through” markings on in-person voting ballots, and the recount showed no major deviations compared to the original count on election night.
“We answered that question with a resounding, ‘No,'” Heid said of whether the bleed-through could cause counting errors.
Marietta is now representing himself with Stenstrom’s help after his previous attorney, Greg Teufel, moved on following the recount. Teufel said in a brief interview Tuesday that he left the case because the deadline to appeal the election certification to the state Commonwealth Court had expired and that Marietta “kind of ran out of funds to pay lawyers.” Marietta confirmed after the hearing that he was unable to afford to hire an attorney after the recount process was completed.
Wednesday’s motions hearing attracted numerous supporters for Marietta, as they have packed the his side of the gallery during previous court dates.
However, a woman sitting with the crowd a few feet behind Marietta pulled out her cellphone and began audio recording the proceeding, which is illegal in courtrooms in Pennsylvania. Sheriff’s deputies detained the woman, who was not immediately identified, and her phone was confiscated as they referred the case to Uniontown police to investigate whether misdemeanor charges should be filed against her.
After listening to comments on the motions for about 15 minutes, Wagner refused to hear anything more and told his clerk to gavel out of the session. But as the judge got up to leave the bench, Stenstrom continued to make his argument.
“I have a right to speak,” Stenstrom said.
“To me?” Wagner asked. “I’m leaving.”
After the hearing, Stenstrom and Marietta spoke to their supporters for nearly an hour outside the courthouse and promised to continue appealing the rulings, even with the Nov. 7 general election less than two months away.
“Everyone knows Jon. You think he’s going away?” Stenstrom said. “You know me. You think I’m going away?”