Feb 9, 2024 By Mike Jones 5 min read

More than a month after Fayette County’s commissioners were sworn in to office, the losing candidate from last year’s primary is continuing to challenge the election results and demanding mail-in ballots be recounted.

Jon Marietta, who serves as the county’s recorder of deeds and lost the race for commissioner in the Republican primary last May, appeared in Fayette County Court of Common Pleas once again Thursday to argue his motion asking for the recount.

“We’ve come this far, we’ve done all this,” Marietta said. “I’d like to know where this is going.”

While President Judge Steve Leskinen appeared sympathetic to Marietta’s cause and offered his own personal concerns about mail-in ballots, he noted that he’s bound by election code and did not seem interested in trying to set a statewide precedent with the process by ruling outside the statute.

“If it could be looked at the way you want it to be looked at, it would’ve been ruled (that way) in one of the other 66 counties,” Leskinen said. “I’m always suspicious if I’m the first judge to rule on something.”

Marietta challenged the primary election and filed numerous court challenges to have all mail-in ballots be recounted following his loss by 121 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. Marietta and two of his allies witnessed the count, but he apparently was unhappy with how it was conducted and continued to claim there were errors.

The primary election was eventually certified by the county’s elections board and affirmed by the courts.

Following the general election, Marietta once again challenged the results, but the validity of the petition and timeliness of its filing were questioned by elections board solicitor Sheryl Heid during Thursday’s motions hearing.

“The election has already happened and people have already taken office,” Heid told Leskinen. “(The petitioners) asked to take possession of all the ballots so they could virtually take their own recount.”

Heid said Marietta and the six other petitioners, which included Fayette County GOP Chairwoman Michelle Mowry, whose name was misspelled in the court documents, did not follow election code statutes in their filings, which should automatically nullify their motion for a recount. Heid said there are specific rules in filing challenges so voters understand the process and timeline, and so elections can be certified and candidates can take office.

“Jon Marietta and the other petitioners have wasted tens of thousands of taxpayer dollars on these challenges,” Heid said.

Leskinen acknowledged there are “hard and fast provisions” in the election code to ensure challenges are legitimate and don’t drag out.

At issue was Marietta and the other petitioners attempting to file a single challenge asking for mail-in ballots in the Nov. 7 off-year election from all 77 precincts in the county be recounted in one grouping. However, to attempt to make a successful challenge, three registered voters from each precinct would have to file 77 separate challenges to initiate what would essentially be a countywide recount.

Prothonotary Nina Capuzzi Frankhouser said the cost was $110.50 per filing in her office last year, along with a $50 bond that will be refunded if the challenge is considered legitimate. Marietta’s new attorney, Renee Mazer, argued that makes it cost prohibitive to file 77 separate challenges for people trying to secure a countywide recount.

In his filing, Marietta apparently accused Heid of working with Capuzzi Frankhouser in blocking their attempts to accept the petition, drawing a strong rebuke from the solicitor who pointed to election law that requires each challenge to be filed per precinct.

“That’s a lie,” Heid said.

“She’s correct,” Marietta admitted, saying the accusation in his court filing was unfounded.

Heid said Capuzzi Frankhouser asked for a legal opinion and spoke to her own prothonotary office’s solicitor, never mentioning the situation to Heid.

“I’m not her attorney,” Heid said.

“That’s correct,” Marietta responded.

In addition, the filings were not considered timely since they did not come within five days of the elections board certifying the results in late November. The fact that Thursday’s motions hearing comes nearly six weeks after Commissioners Scott Dunn, Dave Lohr and Vince Vicites were sworn-in on Dec. 29 makes the situation even more problematic.

“It’s simple. We want to count the mail-in ballots of the primary and (general) election,” Marietta said despite witnessing ballots in six precincts being counted following the primary. “We can argue statute, and if there’s nothing to hide then let’s count them.”

“You want to count them?” Heid asked.

“You can help me,” Marietta said.

Leskinen admitted his own suspicions about mail-in and absentee ballots, but did not appear inclined to grant Marietta’s request. However, he did not indicate when he would make his decision on the motion asking for a recount.

“The election code is very clear on what I can and can’t do,” Leskinen said. “Personally, I’d love to see it, but the election code is to keep (challenges) in the boundaries of the law.”