In the last election to be decided in the entire state, a Washington County judge dismissed a petition in which Democrat Steve Toprani sought to have 29 more votes counted.
Judge Gary Gilman’s order basically allows Republican incumbent state Rep. Bud Cook’s 11-vote lead in the 49th District, which includes communities in Washington and Fayette counties, to stand.
Gilman, in a three-page opinion and order filed shortly before noon Monday, said Toprani’s petition was “fatally defective” because it did not meet statutory requirements regarding the number of electors supporting the Democratic candidate’s claims.
Cook’s attorney, Russell Giancola, presented arguments to that effect in court last Wednesday and claimed Common Pleas Court did not have jurisdiction.
But Gilman allowed Toprani to present testimony about allegations that a voting machine appeared to “flip” a vote from Toprani to Cook. Toprani also questioned elections office procedure about handling this and the counting of both absentee and three provisional ballots.
Gilman, in his order and opinion, addressed only the lack of enough sworn affidavits from electors: five in an election contest, and three when seeking a recount.
Toprani sought a revote in Carroll Township’s fourth precinct, the tossing of three provisional ballots for Cook and the counting of 29 late-arriving absentee ballots. The even later delivery of another absentee ballot brought the total to 30, according to testimony by Melanie Ostrander, Washington County assistant director of elections.
Toprani, via Facebook messenger, said he would be discussing a possible appeal with his lawyers.
As to the decision, he wrote, “I respect Judge Gilman and appreciate that he afforded a full evidentiary hearing to address issues with a voting machine and absentee ballots. My goal was to have every vote enfranchised and counted. He gave us that opportunity.”
Giancola did not immediately respond to a request for comment.
Gilman explained in his opinion filed with the Washington County prothonotary that in an election contest, 20 registered electors must petition the court, and five must verify illegality and swear that they are acting in good faith. Toprani’s petition included more than 20 unsworn signatures of voters within the 49th District, but attached to it was only a single verified affidavit concerning Dennis Butler’s difficulty with a voting machine.
“Since the petition does not strictly comply with the statutory requirements, the claim ... must be dismissed,” the judge wrote.
Butler testified in court last week he was able to correct the machine to cast his vote for Toprani, and a roving election technician, also under oath, said he saw the machine later perform correctly.
If Toprani’s claims could be construed as a recount rather than the contesting of an election, he needed affidavits from at least three electors, according to the court opinion.
In a separate, single-sentence order, Gilman also ordered Toprani to post a $500 bond.
“Bond should have been posted when the appeal was filed,” said Ostrander. “This is kind of like backtracking.”
Three final provisional ballots – all votes for Cook – were counted on Nov. 16, but Toprani claimed his team did not know of them and therefore did not have the opportunity to challenge their validity.
Two-county results of the Nov. 6 election showed Cook with 9,945 votes to Toprani’s 9,934.
The Democrat, a 39-year-old Monongahela resident, is a former Washington County district attorney. Cook, 62, of West Pike Run Township, aims to be sworn in next month to a second two-year term.
Of all 50 states, Pennsylvania has the earliest absentee ballot return date for local civilians, the Friday before a Tuesday election.