Stein v. Cortés

• Decision Date: 12 December 2016
• Docket Number: Civ. No. 16–6287
• Citation: 223 F.Supp.3d 423
• Parties: Jill STEIN, et al., Plaintiffs, v. Pedro A. CORTÉS, in his official capacity as Secretary of the Commonwealth of Pennsylvania, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

223 F.Supp.3d 423

Jill STEIN, et al., Plaintiffs,

v.Pedro A. CORTÉS, in his official capacity as Secretary of the Commonwealth of Pennsylvania, et al., Defendants.

Civ. No. 16–6287

United States District Court, E.D. Pennsylvania.

Signed December 12, 2016

Alison Frick, Andrew G. Celli, Jr., Douglas E. Lieb, Ilann M. Maazel, Emery

Celli Brinckerholf & Abady LLP, New York, NY, Gregory M. Harvey, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, for Plaintiffs.

Kenneth L. Joel, Office of the Attorney General, Civil Litigation, Timothy E. Gates, PA Department of State, Harrisburg, PA, Sue Ann Unger, Office of Attorney General, Litigation Section, Philadelphia, PA, for Defendants.

MEMORANDUM

Diamond, District Judge

Unsuccessful Green Party Candidate Jill Stein and Pennsylvania voter Randall Reitz allege that because Pennsylvania's voting machines might have been "hacked" during last month's election, I must order the Commonwealth to conduct a recount of the votes cast for President. There are at least six separate grounds requiring me to deny Plaintiffs' Motion. Most importantly, there is no credible evidence that any "hack" occurred, and compelling evidence that Pennsylvania's voting system was not in any way compromised. Moreover, Plaintiffs' lack of standing, the likely absence of federal jurisdiction, and Plaintiffs' unexplained, highly prejudicial delay in seeking a recount are all fatal to their claims for immediate relief. Further, Plaintiffs have not met any of the requirements for the issuance of a mandatory emergency injunction. Finally, granting the relief Plaintiffs seek would make it impossible for the Commonwealth to certify its Presidential Electors by December 13 (as required by federal law), thus inexcusably disenfranchising some six million Pennsylvania voters. For all these reasons, I am compelled to refuse Plaintiffs' request for injunctive relief.

I. Background

On November 8, 2016, the United States conducted its Presidential Election. The reported vote shows that Republican Candidate Donald J. Trump was elected President. See Donald Trump Elected President of the United States , Associated Press (Nov. 9, 2016, 2:29 a.m.), http://elections.ap.org/content/donald-trump-elected-president-united-states-0. Although Pennsylvania has not yet certified its results, the reported popular vote indicates the following: Mr. Trump (2,970,764 votes); Secretary Hillary Clinton (2,926,457 votes); Governor Gary Johnson (146,709 votes); Dr. Stein (49,947 votes); and Mr. Darrell Castle (21,569 votes). See Unofficial Returns , Pa. Dep't of State, http://www.electionreturns.pa.gov (last visited Dec. 12, 2016). Pennsylvania has not yet certified its election results. (See Hr'g Tr. 90:1–9, 121:20–22.)

Pennsylvania has opted into the federal "safe harbor" that allows it to determine conclusively its Presidential Electors through state procedures. See 3 U.S.C. § 5 ; 25 P.S. § 3192. The safe harbor requires Pennsylvania to make a final determination of its Electors at least six days before the Electoral College meets. See 3 U.S.C. § 5. The Electoral College will meet on Monday, December 19, 2016. See id. § 7. Pennsylvania thus must certify its election results tomorrow to retain its right to make the final determination of its Electors. See Bush v. Gore , 531 U.S. 98, 111, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) (per curiam).

Some three weeks after Election Day, Dr. Stein initiated efforts to seek a recount of votes cast for President in Pennsylvania, Michigan, and Wisconsin, the three states in which Mr. Trump prevailed by the narrowest margins. E.g. , Stein v. Thomas , No. 16–14233, 222 F.Supp.3d 539, 2016 WL 7046022 (E.D. Mich. 2016) ; Great Am. PAC v. Wis. Election Comm'n , No. 16–795 (W.D. Wis. 2016); In re The Matter of the 2016 Presidential Election , No. 569 MD 2016 (Pa. Commw. Ct. 2016); Stein v. Phila. Cty. Bd. of Elections , No. 161103335 (Pa. C.P. Phila. Cty. 2016); see Recount2016 , Jill2016, https://jillstein.nationbuilder.com/recount (last visited Dec. 12, 2016); see also Pennsylvania Recount , Jill2016 (last visited Dec. 12, 2016), http://www.jill2016.com/recountpainfo (In Pennsylvania, "[t]he campaign has mobilized over 2,000 concerned voters in more than 300 election districts in some 20 counties to request recounts").

Only 0.82% of Pennsylvania voters cast their ballots for Dr. Stein, who does not allege that a recount might change the election results. See Unofficial Returns , supra . Indeed, she reportedly has denied that she seeks to change the results. Rather, she reportedly has said that her efforts are intended to ensure that every vote counts. See Jill Stein, Why the Recount Matters: Jill Stein , USA TODAY (Dec. 1, 2016, 3:56 p.m.), http://www.usatoday.com/story/opinion/2016/12/01/election-recount-voter-registration-hacking-jill-stein/94631360.

Dr. Stein has challenged the integrity of the Pennsylvania election results. As alleged, during the November 8 election, the Commonwealth allowed its citizens to cast votes on Direct Recording Electronic (DRE) machines, and used optical-scan machines to tabulate paper ballots. Fifty-four Pennsylvania Counties used one of six DRE machine models. (See Defs.' Resp. Ex. D–1, Doc No. 42–1.) Seventeen Counties used paper ballots that were then counted using optical-scan machines. (See id. ) Four Counties used both DRE and optical-scan machines. (See id. ) Plaintiffs—both here and in a multitude of Pennsylvania State Courts and Election Boards—have alleged that because these machines might be vulnerable to hacking and cyberattacks, Plaintiffs must be permitted to conduct a forensic analysis of the machines. (See, e.g. , Compl. ¶¶ 1–5, Doc. No. 1 ("A majority of machines voted for Donald Trump in Pennsylvania. But who did the people vote for? Absent this Court's intervention, Pennsylvanians will never know that truth.").) With Dr. Stein's financial, legal, and organizational support, Pennsylvania voters have pursued these claims in judicial and administrative proceedings across the Commonwealth. (See Maazel Decl. Exs. 1–13, 16, 21–22, 24–37, Doc. Nos. 9–1 to 9–13, 9–16, 9–21 to 9–22, 9–24 to 9–40.)

A. Pennsylvania's Election Code

State law sets out the procedures by which voters may contest an election. See 25 P.S. §§ 3291, 3351, 3456 ; 42 Pa. C.S. § 764. To initiate an election contest, one hundred or more voters must file a petition in the Pennsylvania Commonwealth Court within twenty days after Election Day and supplement that petition with at least five affidavits that the "election was illegal and the return thereof not correct." 25 P.S. §§ 3456 –3457. The petitioners must also post a bond "conditioned for the payment of all costs which may accrue in said contested nomination or election proceeding." Id. § 3459.

Pennsylvania law provides two additional methods by which voters may seek a recount and recanvass. First, voters may petition their County Board of Elections. See id. § 3154(e). County Board petitions must be supported by affidavits from three voters in an individual precinct that fraud or error not apparent on the face of the returns has occurred. See id. The petition must be filed "prior to the completion of the computation of all of the returns for the county." Id. If the Board rejects the request for recount or recanvass, the aggrieved petitioners may appeal the Board's decision to the Common Pleas Court. Seeid. § 3157(a); Rinaldi v. Ferrett , 941 A.2d 73, 76–77 (Pa. Commw. Ct. 2007).

Second, voters may petition the Common Pleas Court for a recount or recanvass. See 25 P.S. §§ 3261 –3262. Three voters in the same precinct must verify that fraud or error not apparent from the returns was committed in the vote tabulation. See id. § 3261(a). These petitioners must remit a $50 cash payment or a $100 bond. See id. § 3262(b.2). Unless the petitioners plead fraud or error with particularity and offer prima facie evidence supporting that allegation, they must also file qualified petitions in every single precinct in which ballots were cast for the office in question. See id. § 3263(a)(1)(i)-(ii). To contest a statewide election in the Common Pleas Court without evidence of fraud, three petitioners must file affidavits from voters in over nine thousand precincts. (See Pls.' Br. 12–13, Doc. No. 5.) These petitions must be filed within five days after completion of the County Board's computation of the vote. See 25 P.S. § 3263(a)(1) ; Rinaldi , 941 A.2d at 77.

B. Commonwealth Court Election Contest

On Monday, November 28, 2016—the last possible day under Pennsylvania law to bring a contest proceeding—Pennsylvania voters organized by Dr. Stein and represented by her counsel in the instant case filed in Commonwealth Court an election contest, alleging that they had "grave concerns about the integrity of electronic voting machines used in their districts" because of the possibility that the machines could have been hacked. (Maazel Decl. Ex. 37, Doc. No. 9–40 (Nov. 28, 2016 Petition).) The petition was without any of the five required affidavits, was some two pages in length, and did not include any allegation that hacking had actually occurred. (See id. ) In light of the rapidly approaching federal safe harbor date, the Commonwealth Court set a hearing for Monday, December 5, 2016 at 10:00 a.m, and ordered the petitioners to post a $1,000,000 bond no later than December 5 at 5:00 p.m. (after the hearing). (See Intervenors' Resp. Ex. 3, Doc. No. 38–2 (Nov. 29, 2016 Order).) The Court stated that it would modify the amount of the bond for good cause. (See id. )

The petitioners never asked the Commonwealth Court to reduce the size of the bond. Instead, on December 3, 2016, they voluntarily withdrew their action, explaining that they could not "afford to post the $1,000,000 bond required by the Court." (Maazel Decl. Ex. 40, Doc. No. 9–43 (Praecipe to Discontinue and Withdraw).) Plaintiffs' Counsel did not dispute before me that the $1,000,000 bond "was effectively a decision...