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HomeMy WebLinkAbout03-6109 CivilIN RE: BRUNDZO; RECANVASS OF VOTE IN SHIPPENSBURG TOWNSHIP, CUMBERLAND COUNTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-6109 CIVIL TERM IN RE: ELECTION CHALLENGE OPINION AND ORDER OF COURT Bayley, J., December 10, 2003:-- At the election on November 4, 2003, Galen S. Asper was the Democratic/Republican candidate on the ballot for Supervisor of Shippensburg Township, Cumberland County. Mathew Brundzo waged a write-in campaign for that position. The official canvass by the Cumberland County Board of Elections recorded 114 votes for Galen S. Asper, 104 cumulated with various spellings for Mathew J. Brundzo, and 1 vote for Tom Mitros. On November 26, 2003, pursuant to a petition filed by Mathew J. Brundzo and two other qualified electors of Shippensburg Township, this court, under the authority of the Pennsylvania Election Code, 25 P.S. Section 2601 et seq. ordered a recanvass electronically and by hand. The recanvass was conducted by the Board of Elections on December 1, 2003. The Board has filed a report and motion for confirmation. The recanvass by hand recorded the following 234 ballots for the office of Township Supervisor:~ ~ The report sets forth: "The recanvass showed that a total of 240 votes were cast for the office of Township Supervisor." This is an error. We believe that the difference between the 234 hand recorded ballots and 240 is that there were 240 ballots cast in Shippensburg Township but only 234 were marked for the office of Supervisor. 03-6109 CIVIL TERM (1) 115 votes for Galen S. Asper. 2 (2) 104 write-in votes cumulated with various spellings for Mathew J. Brundzo.3 (3) 1 vote for Tom Mitros. (4) 10 write-in ballots were not cumulated with various spellings for Mathew Brundzo because the write-in oval was not blackened. (5) 2 write-in ballots were not cumulated which had a blackened write-in oval; one with "Brunzo" written in, and the other with "Brundzo" written in. (6) One ballot was not counted as an over-vote with the oval for Galen S. Asper blackened and the write-in oval blackened with the name Galen S. Asper written in. (7) One ballot was not counted as an over-vote in which an oval was blackened for Galen S. Asper and the write-in oval was blackened with the name Mathew J. Brundzo written in. At a hearing conducted on December 4, 2003, Mathew Brundzo, challenges the Board's recount, maintaining that he should receive the votes of (1) the two write-ins that contained a blackened oval with the name written in one : The electronic recanvass recorded 114 votes for Galen S. Asper. The Election Board cannot explain the difference. Clearly there were 115 paper ballots with a vote for Galen S. Asper. These votes were recorded by a blackened oval next to his name printed on the ballot. Possibly, the hand count showed that an oval had been blackened but to an extent insufficient to be recorded on the electronic scan. ~ The 104 cumulated votes were comprised of 78 for Mathew J. Brundzo; 5 for Matt Brundzo; 12 for Mathew Brundzo; 1 for Mathew J. Brunzo; 1 for Matthew Brundzo; 4 for Matthew J. Brundzo; 1 for M. Brunzo; 1 for Matthew J. Brunzo; 1 for Mat Brunzo. -2- 03-6109 CIVIL TERM instance of Brunzo, and in the other instance of Brundzo, and (2) the ten write-ins that contained no blackened oval with various spellings of Mathew J. Brundzo. Galen S. Asper challenges the Board's recount, maintaining that he should receive the one ballot vote that showed the oval next to his name blackened, and the write-in oval blackened with the name Galen S. Asper written in. Cumberland County uses an optical scan electronic voting system. Paper ballots of each voter are electronically scanned. If an oval is blackened in for one candidate, the vote for that candidate is electronically counted. If more than one oval is blackened in, then no vote is counted because of the over-vote. If the oval for a write-in candidate is blackened in, the scanner stops, an election official records the name of the write-in, and the electronic scan is then continued. If the oval for a write-in candidate is not blackened in, the counter does not stop and no vote is electronically counted even if a name is written next to the write-in oval. I. THE TWO WRITE-IN VOTES THAT CONTAINED A BLACKENED OVAL WITH THE NAME WRITTEN IN ONE INSTANCE OF BRUNZO, AND IN THE OTHER INSTANCE OF BRUNDZO. These ballots are: O TOWNSHIP SUPERVISOR 6 Year Term Vote for ONE Galen S. Asper Democratic/Republican BRUNZO (For Write-In Candidate Only) -3- 03-6109 CIVIL TERM O TOWNSHIP SUPERVISOR 6 Year Term Vote for ONE Galen S. Asper Democratic/Republican BRUNDZO (For Write-In Candidate Only) In McCracken Appeal, 370 Pa. 562 (1952), Joseph Kratochvil, Jr., conducted a write-in campaign for the office of treasurer of Springdale Township, Allegheny County. Thomas H. McCracken was the candidate on both the Republican and Democratic ticket. On one ballot a voter wrote the name "Joseph Kratochvil." The board of elections counted the ballot which resulted in a tie vote, with Joseph Kratochvil, Jr. winning the election by a cast of lots. McCracken appealed to the Court of Common Pleas of Allegheny County which affirmed. The Supreme Court of Pennsylvania affirmed the trial court, stating: In the computation of the vote, its functions are not limited to those of a humanized adding machine. The Board is not a multiple comptometer, making up as many lists as there are different spellings for what common sense and the obvious facts dictate are the same person. It is because the Board is charged with discretional responsibilities that it has been armed with authority and power to issue subpoenas, summon witnesses and take testimony. The Court concluded that the names Joseph Kratochvil and Joseph Kratochvil, Jr., "identify one and the same individual," and: In any disputed election, nothing can be more vital towards the accomplishment of an honest and just selection than the ascertainment of the intention of the voter. What was the intention of the voter who wrote Joseph Kratochvil, instead of Joseph Kratochvil, Jr? Can anyone doubt that the voter wished to register his vote for Joseph Kratochvil, Jr.? And with that fact established, nothing should be permitted to change the effect of that intention so -4- 03-6109 CIVIL TERM honestly manifested. "...where the voter's intention is found it should not be defeated by the fact that the name of the candidate is misspelled, the wrong initials employed, or some other or slightly different name of like or similar pronunciation has been written instead of that of the candidate actually intended to be voted for .... A ballot may be counted which contains a candidate's surname only, although there are other persons in the county having the same surname, it being shown that there was no other person of such name who was a candidate for the same or any other office; and so also if only the middle name of the candidate is wrong, or if the first name is abbreviated, or if the wrong initials are used." Petitioner, Mathew Brundzo was the only person to wage a write-in campaign for the office of Township Supervisor. He circulated the following sample ballot: TOWNSHIP SUPERVISOR 6 Year Term Vote for ONE O Galen S. Asper Democratic/Republican MATHEW J. BRUNDZO (For Write-In Candidate Only) There were only three registered voters in Shippensburg Township with the surname Brundzo; petitioner, his wife and a daughter who at the time of the election had moved to Franklin County. There were five other Brundzos residing in Shippensburg Township who were not registered voters; petitioner's mother and father; two other daughters and his nephew. Based on the analysis in McCracken Appeal, we conclude that the write-in voters who blackened the ovals with the name written in one instance Brunzo, and in the other instance Brundzo, intended to vote for the only write-in candidate for Township Supervisor, Mathew Brundzo. See Nomination of Lamb, 73 D. & C.2d 142 -5- 03-6109 CIVIL TERM (Chester 1975). Accordingly, these two votes will be added to the 104 write-in votes cumulated for Mathew J. Brundzo. II. THE TEN WRITE-IN VOTES WITH NO BLACKENED OVAL THAT CONTAINED VARIOUS SPELLINGS OF MATHEW J. BRUNDZO. The votes on each of ten ballots, three of which was written the name "Mathew Brundzo," four of which was written the name "Mathew J. Brundzo," one of which was written the name "Matthew Brundzo," one of which was written the name "Mathew T. Brundzo," and one of which was written the name "Matt Brundzo," did not contain a blackened oval. Each ballot set forth in bold type: INSTRUCTIONS TO VOTER 1. TO VOTE YOU MUST BLACKEN THE OVAL O COMPLETELY. An oval O blackened to the left of the name of any candidate indicates a vote for that candidate. 2. To vote for a person whose name is not on the ballot, you must blacken the oval to the left of the line provided, and write, print or paste the name in the blank space provided for that purpose. 3. If you wish to vote Straight Party, completely blacken the oval ~ to the left of the party name of your choice. 4. If you wish to vote for an individual candidate after voting a Straight Party, completely blacken the oval ~ to the left of the candidate's name. 5. If you make a mistake, DO NOT ERASE. Ask for a new ballot. 6. USE ONLY THE MARKER PROVIDED. 7. DO NOT FOLD THE BALLOT UNLESS VOTING BY ABSENTEE. Thus, paragraphs 1, 3 and 4 of the instructions explains how to cast a vote including the showing of a blackened oval, yet in paragraph 2 on how to cast a write-in ballot, while setting forth that the oval must be blackened, unlike paragraphs 1, 3 and 4 it does not show a blackened oval. -6- 03-6109 CIVIL TERM The ballot listed the election for Supervisor of Shippensburg Township as follows: TOWNSHIP SUPERVISOR 6 Year Term Vote for ONE O Galen S. Asper Democratic/Republican O (For Write-In Candidate Only) The Election Code at 25 P.S. Section 3031.12(b)(3) provides: ·.. the voter shall vote for the candidates of his choice for each office to be filled, according to the number of persons to be voted for by him for each office, by making a cross (x) or check ([~) mark or by making a punch or mark sense mark in the square opposite the name of the candidate, or he may so mark the write-in position provided on the ballot for the particular office and, in the space provided therefore on the ballot and/or ballot envelope, write the identification of the office in question and the name of any person not already printed on the ballot for that office, and such mark and written insertion shall count as a vote for that person for such office. (Emphasis added.) On July 1, 2003, the Pennsylvania Department of State adopted standards on what constitutes a vote. These standards are published in Pa. Bulletin, Vol. 33, No. 31 , August 2, 2003. The preamble at page 3935 states: Attached are the standards for what constitutes a vote required pursuant to section 301 (a)(6) of the Help America Vote Act (HAVA) of 2002, at 42 U.S.C. § 15481(a)(6), and section 204 of Act No. 2002-150, at 25 P.S. § 2624. Section 301(a)(6) of HAVA provides: "Each state shall adopt uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system used in the State." (Emphasis added.) The Voting Standards Development Board, as constituted by Act 150, based its standards for what constitutes a vote on those contained in the Pennsylvania Election Code. In doing so, the Board recognizes that while standards may vary from one category of voting system to another, the -7- 03-6109 CIVIL TERM standards within each category are uniform and nondiscriminatory, as required by HAVA and Act 105. (Emphasis added.) The definition of "Mark Sense mark" at page 3935 includes '% properly cast vote on an optical scan voting system which can include blackening the oval. "On page 3971 is the following implementing standard: FOR GOVERNOR (Vote for one) © George Washington © Abraham Lincoln O John Adams 0 Write-In Thomas Jefferson Invalid vote This standard is consistent with Section 3031.12(b)(3) of the Election Code that requires a voter for a write-in to mark the written portion provided on the ballot and write the name of the person to "count as a vote for that person for such office." The Supreme Court of New Jersey in In the Matter of the Municipal Election Held On May 10, 1994, 139 N.J. 553, 656 A.2d 5 (N.J. 1995), considered an issue very similar to the present case. The petitioner was a write-in candidate for one of three positions on a Township council. He challenged the disallowance of fifteen ballots "on which voter's ostensibly wrote his name but failed to punch a corresponding hole in an electronic voting card." The Board of Elections disallowed the ballots and a lower court affirmed. A New Jersey statute N.J.S.A. 19:53A-5(e) provided: In elections in which voters are authorized to vote for persons whose names do not appear on the ballot, at the discretion -8- 03-6109 CIVIL TERM of the county board of elections... (2) provisions shall be made for the voter to write the name of the person or persons for whom he wishes to vote on the ballot card in the location designated and to punch the ballot card in the location provided· (Emphasis added·) The Supreme Court of New Jersey stated: ·.. the ballot card instructed voters to punch out the plus sign opposite the name of the chosen candidate and insert the card into the ballot machine. The instructions further stated that to vote for an unlisted candidate, the voter, before inserting the card, must write the candidate's name in the provided space and punch out the corresponding plus sign to the right of that name. Voters could cast up to three votes. The ballot card instructions provided in relevant part: INSTRUCTIONS TO VOTERS A. To vote for a candidate, punch a hole in the square at the right of your choice. Do not vote for more candidates than are to be elected to any office. B. To vote for any person whose name is not printed on this ballot, write name in blank space and punch hole in square at right of your choice, but not in excess of the total number allowed for each office. In affirming the order of the lower court disallowing the contested ballots, the Supreme Court concluded: The legislative mandate is clear. For a write-in vote to count, writing in the candidate's name will not suffice. A voter must both write in the name of the candidate and punch the ballot card. In analyzing section 19:53A-5e(2), as when construing all statutes, our goal is to ascertain the intent of the Legislature. Because the regulation of elections is exclusively a legislative matter, courts, even when they question the wisdom of legislation, must respect the legislative scheme. Tempering that respect is the canon of statutory construction that courts should construe liberally election laws to avoid depriving voters of the right to vote. Courts construe election laws liberally, however, not to achieve goals of their own but to effectuate the underlying legislative purpose. (Citations omitted.) -9- 03-6109 CIVIL TERM The Court added: Practical considerations support that construction. The requirement that the voter both write the candidate's name and punch a hole in the electronic card necessarily hinders election fraud and protects the integrity of the ballot. Moreover, perhaps in recognition that voters might change their minds, the Legislature included the requirement of punching the ballot to identify an act that unambiguously expresses the voters' final choice. Further, the requirement eliminates the need for visual inspection of every ballot and permits a more efficient tabulation of electronic ballots. In the Appeal of Yerger, 460 Pa. 537 (1975), the issue was whether write-in votes cast on a voting machine for a candidate whose name appears on the face of the machine should be counted. The Election Code at 25 P.S. Section 3056(e) provides that no irregular ballot (write-in ballot) shall be cast on a voting machine for any person for any office whose name appears on the machine for that office. The appellant argued that the exclusion of write-in votes on a voting machine violated the requirement of uniformity under Article VII, Section 6 of the Pennsylvania Constitution because write- in votes on a paper ballot for a candidate whose name also appeared on the paper ballot are to be counted. The Pennsylvania Constitution provides in Article VII, Section 6, that "all laws regulating the holding of elections.., shall be uniform throughout the State .... "The Supreme Court of Pennsylvania, noting that the uniformity clause requires that a law treat all persons in the same circumstances alike, held that the write- ins could not be counted. The Court stated: It is easy to find such a basis for the difference in treatment of write-in votes on paper ballots and machines. Allowing write-in votes for those appearing on the machine would increase the time and effort required to count the votes. In ignoring the speedy and efficient means of voting for such candidates provided by the regular operation of the machine, the voter casting an irregular vote would, to that extent, defeat the very purpose of using voting machines. When dealing with a comprehensive and carefully drawn legislative scheme for the -10- 03-6109 CIVIL TERM conduct of elections, we must take care not to consider the particular elements of the scheme without regard to their place in the entire structure. Otherwise, the legislative plan may be frustrated by deviations, each seemingly reasonable in itself but, destructive of the carefully designed structure .... By forbidding write-in votes for candidates appearing on the machine, the Legislature has erected a considerable safeguard against the failure of the locking mechanism. Double voting for the same candidate is thereby entirely precluded .... Such precautions are unnecessary when dealing with paper ballots, because it is easily determined if any ballot contains more votes for a given office than there are persons to be elected. 'The technicalities of the Election Law (and there are many) are necessary for the preservation of the secrecy and purity of the ballot and must, therefore, be meticulously observed.' (Citation omitted.) (Emphasis added.) once it has been ascertained that a ballot was validly cast, the issue of how to count the ballot is one of the intention of the voter. McCracken Appeal, 370 Pa. 562, 88 A.2d 787 (1952). (Emphasis added.) In the case sub judice, notwithstanding that ballot instruction Number 2 which explained how to cast a write-in vote, but inexplicability did not show the blackened oval as did Numbers 1, 3 and 4, the instruction was unequivocal: 2. To vote for a person whose name is not on the ballot, you must blacken the oval to the left of the line provided, and write, print or paste the name in the blank space provided for that purpose. The instruction conformed with Section 3031.12(b)(3) of the Election Code and the implementing standard of the Department of State. A ballot must conform to the Election Code to constitute a valid ballot. Appeal of Yerger, supra. It is only if there is a valid ballot that an issue of how to count the ballot can be raised. Id. This was the situation regarding the two write-in votes that had a blackened oval with the name written in one instance of Brunzo, and in the -11- 03-6109 CIVIL TERM other instance of Brundzo. The legislative mandate is clear. For a write-in vote to be valid, writing in a name will not alone suffice. The standard is that a voter must both write-in the name of the candidate and blacken the oval next to the candidate's name.4 Having a standard as to what constitutes a valid vote is required by the federal HAVA. Using the same reasoning as the Supreme Court of New Jersey in In the Matter of the Municipal Election Held On May 10, 1994, supra, we cannot set this legislative scheme aside in order to examine improperly cast ballots based on voter intention. Accordingly, as to the ten write- in votes that contained no blackened oval with various spellings of Mathew J. Brundzo, the challenge to have those votes added to the write-in votes cumulated for Mathew J. Brundzo will be denied. III. THE BALLOT THAT SHOWS THE OVAL FOR GALEN S. ASPER BLACKENED AND THE WRITE-IN OVAL BLACKENED WITH THE NAME GALEN S. ASPER WRITTEN IN. This ballot was as follows: TOWNSHIP SUPERVISOR 6 Year Term Vote for ONE O Galen S. Asper Democratic/Republican O Galen S. Asper (For Write-In Candidate Only) 4 We would think that the practical consideration of the speed and efficiency of counting votes with an optical scanner played a significant part in the way Section 3031.12(b)(3) of the Election Law is drafted. There is no doubt, however, that under the Code casting a valid write-in vote requires more attention to detail than casting a vote for a candidate listed on the ballot. -12- 03-6109 CIVIL TERM Section 3031.13(e) of the Election Code provides: If, as a result of an otherwise properly cast write-in vote, the voter has registered more votes for an office than he is entitled to vote for that office, the entire vote cast for that office shall be void and shall not be counted .... The implementing standard in Pa. Bulletin, Vol. 33, No. 31, August 2, 2003 at page 3969 shows: 0 0 FOR GOVERNOR (Vote for one) George Washington Abraham Lincoln John Adams Write-In Franklin Roosevelt Invalid vote The voter in this challenged ballot registered two votes for Galen S. Asper for Township Supervisor. It is an invalid over-vote that is void under the same standards of statutory construction as discussed under Section II of this opinion. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of December, 2003, IT IS ORDERED: (1) The two write-in ballots that contain a blackened write-in oval, one with "Brunzo" written in, and the other with "Brundzo" written in, are cumulated and added to the total of the votes cast for Mathew J. Brundzo for the office of Supervisor of Shippensburg Township, Cumberland County, in the election of November 4, 2003. -13- 03-6109 CIVIL TERM (2) All other challenges to the ballots cast for the office of Supervisor of Shippensburg Township, ARE DISMISSED. (3) The Cumberland County Board of Elections shall forthwith certify the following results for said office: (a) (b) (c) 1 vote for Tom Mitros. 115 votes for Galen S. Asper. 106 votes for Mathew J. Brundzo. By the Court, John H. Broujos, Esquire For Mathew J. Brundzo Victor P. Stabile, Esquire For Galen S. Asper Stephen Tiley, Esquire For the Cumberland County Board of Elections :sal Edgar B. Bayley, J. -14-