Contesting an election is one legal path available to voters, and by extension the losing candidate, to challenge the results. Voters must follow a set process to bring their petition before the state legislature or courts, depending on the type of contest. In all cases they must also attest under oath that they believe the election being challenged was conducted illegally. In most cases, the final determination of the body hearing the contest can be further challenged through the standard appeals process. This may drag on for weeks, or even months, and is something we have seen occur in several states. However, in the vast majority of these cases even largely frivolous claims have not delayed or prevented the certification of elections.
The types of offices that can be contested are divided into five classes. 25 P.S. § 3291. These distinctions of class are important because there are varying statutory requirements for each kind of election contest. 25 P.S. § 3291, et seq.
Class I. Governor and Lieutenant Governor.
Class II. The U.S. President and Vice President, all officers of the Commonwealth (excluding Class I), and U.S. Senators.
Class III. Judges of the several courts.
Class IV. Senators and Representatives in the General Assembly, and Representatives in Congress.
Class V. All other officers, including those at the county, city, borough, township, ward, and school district level.
Contested elections of the Governor and Lieutenant Governor are tried and determined by a Select Committee drawn from both houses of the General Assembly. 25 P.S. § 3312.
To initiate a contest of the gubernatorial election, at least 100 registered Pennsylvania voters must petition their challenge to the presiding officer of the State Senate within 10 days of the organization of the General Assembly. 25 P.S. § 3313. The petition must be accompanied by an affidavit taken and subscribed by at least 20 of them. 25 P.S. § 3313.
The petitioners must also pay a bond. The sum is determined by the presiding officer of the Senate. 25 P.S. § 3459. Failure to pay the bond will result in dismissal of the petition. 25 P.S. § 3459. If the Select Committee decides that the complaint is without probable cause, then the petitioners are liable for all costs. 25 P.S. § 3469. However, if the Select Committee determines that the complaint has probable cause, then the Commonwealth of Pennsylvania is liable for all costs. 25 P.S. § 3470(a).
After the petition is read in both houses, the Senate and House will choose their respective members of the Select Committee. 25 P.S. §§ 3313–3318. The time and place of the Select Committee will be decided by a joint vote of the members of both houses and will occur within 48 hours of the appointment of the Select Committee. 25 P.S. §§ 3313, 3321. The Select Committee will sit from day to day (Sundays excepted).
The Chief Justice of the State Supreme Court will sit as the presiding officer of the Select Committee. 25 P.S. § 3324. The Chief Justice will decide questions regarding the admissibility of evidence, and, upon request of the committee, provide his opinion on other questions of law involved in the contest. 25 P.S. § 3324. However, the Chief Justice will not have a vote on the final determination of the case. 25 P.S. § 3324. The Select Committee has the power to subpoena persons and require the production of papers and records. 25 P.S. § 3325. The Select Committee has the power not only to decide the validity of a contested election, but also may determine which candidate received the most votes. 25 P.S. § 3325. The Select Committee will produce a final report, by majority vote, determining which candidate is entitled to the office or, if the election was invalid, to order a new election 25 P.S. §§ 3328, 3329.
Contested elections of the second, third, fourth, and fifth class are tried and determined by the courts. Note that contests of the second class apply to the presidential race. Contest petitions must be filed within 20 days after the election to the court having jurisdiction. 25 P.S. §§ 3456, 3458.
For contests of the second class, the court with two nearest president judges has jurisdiction. 25 P.S. § 3351. For contests of the third class, the petition is presented to the Governor, who will then direct the appropriate Court of Common Pleas to hear the complaint without delay. 25 P.S. §§ 3376, 3377. Contests of the fourth and fifth class are also tried by the Court of Common Pleas of the county where the person who received the most votes in the election returns resides. 25 P.S. §§ 3401, 3431. The petition must concisely explain the complaint, showing how the election was illegally conducted. 25 P.S. § 3456.
The petitioners must be registered voters who cast ballots in the election being contested. 25 P.S. § 3457. The number of petitioners required varies depending on class. 25 P.S. §§ 3351, 3377. Notably, for contests of the second class, 100 electors are required to petition. 25 P.S. § 3351. Each petition must be verified by affidavits stating that the election was conducted illegally “to the best of their knowledge and belief.” These affidavits are required of at least 10 of the petitioners in the third class, and at least five of the petitioners in the second, fourth, and fifth classes. 25 P.S. § 3457.