*1 Here, although Montgomery was moved
from DAYHOFF, SCI-Waynesburg to the L. Bucks Coun- Samuel Andrew ty jail for a non-jury trial on new criminal Waybright J. James W. charges, Montgomery at all times was Waybright, Appellants serving his TPV backtime juris- within the v. diction of the Department. county was not holding Montgomery pending dis- WEAVER, Harry Thomas J. Stokes trial; indeed, position non-jury of his and Thomas L. Collins. county returned Montgomery to SCI- Pennsylvania. Commonwealth Court of Waynesburg county after the trial. The had no reason to Montgomery confíne until 10, Argued April pleas court of common imposed 17, Decided Oct. county 14, sentence May 2001. Even then, sentence towas be served
consecutive with Montgomery’s TPV back- Thus,
time. the court of pleas common
issued a detainer with the Department, so
that, backtime, upon completion of his
Montgomery would be detained to serve
his county sentence. Inasmuch as Mont-
gomery was not juris- confined outside the
diction of the Department, the exception 71.4(l)(i)
37 Pa.Code apply does not here.
Applying general rule set forth 71.4(1),
Pa.Code the Board received offi- 14,
cial verification of Montgomery’s May conviction on December 2001. Be- Montgomery’s
cause January revo-
cation hearing days was within 120 of De-
cember timely hearing. it was a
Accordingly, we affirm.
ORDER NOW, October,
AND 17th day the order of the Board Parole,
of Probation and dated March
2002, hereby affirmed.
(trial court) upholding the determination of the Adams Board of Elections (Board) L. Dayhoff (Dayhoff) that Samuel (Kirschner) and Harold J. Kirschner tied *3 Joy Township the election for Mount Supervisor (Supervisor) requiring thus by lottery choice of winner as set forth the Election Code.1We affirm. 6, 2001, On November elections were held for numerous statewide and local of- fices, including Supervisor. the office of No Supervisor appeared candidates for ballot, printed Dayhoff but and Kir- campaigned schner each for the write-in 9, Supervisor. vote for On November 2001, the Board completed computa- and, canvassing and of votes2 on No- White, R. Gettysburg, appel- John 14, 2001, vember the Board certified3 lants. Dayhoff received 308 votes and Kirschner votes, received 308 a tie vote. Hartzell, Gettysburg,
John M. for appel- lees. result, 20, 2001, Day- As on November hoff filed a Petition Recount of the SMITH-RIBNER, Judge, BEFORE: response, cast. the trial court LEAVITT, FLAHERTY, Judge, and ordered the Board to recount the votes Judge. Senior 30, manually, which it did on November BY Judge OPINION LEAVITT. 2001. recount, Kir- appeal During Dayhoff
This is an
from the order
and
of
Adams
of
lodged objections, asserting
Common Pleas
schner each
(Election
Pennsylvania
county
provided by
Election Code
in the manner
sec-
3, 1937,
1333,
Code), Act of June
P.L.
as
Upon
completion
compu-
of
tion.
such
amended,
§
§
2601—25 P.S.
canvassing,
tation and
the board shall tabu-
figures
county
late the
for the entire
and
1404(a)
2. Section
of the Election
same,
sign, announce and attest the
as re-
3154(a), provides
computation
P.S.
quired by this section.
follows,
canvassing
and
of votes as
shall,
(a)
county
The
board
at nine o’clock
1404(f)
3.Section
of
day following
primary
A.M. on the third
3154(f),
alia,
inter
election,
at
office
at
its
some other
(f)
expiration
days
At the
after the
of five
seat,
public place
county
at the
convenient
votes,
completion
computation
of the
given
of which due notice shall have been
petition
case no
for a recount or recanvass
provided by
publicly
section
com-
provi-
has been filed in accordance with the
computation
canvassing
mence the
and
act,
upon
completion
sions оf this
returns,
and continue the same from
petition
there-
recount
recanvass if
day
day
completed,
until
in the manner
days
been
after the
has
filed within five
provided.
purpose any
hereinafter
For this
votes,
completion
computation
county
may organize
board
itself into sec-
tions,
county
certify
board shall
the returns so
may simultaneously
each of which
proceed
computed
computation
with the
and
in said
in the manner
canvass-
ing
required by
of returns
from various districts of
this act.
lots,
held a
drawing
excluded
the Board
that some
should have been
tally
others,
the final
which were
won.
from
Kirschner
excluded, should have
counted. Kir-
been
filed a
December
On
objected to
at the
schnеr
fifteen ballots
Su-
Appeal
Notice of
recount,
twenty-
objected
meantime, Dayhoff
In the
preme Court.
objections
concerned
four ballots.
stay its De-
the trial court to
requested
improper spelling
items as:
such
the Su-
2001 order pending
cember
name;
candidate’s
failure to include
adjudication
appeal.
Court’s
preme
nicknames;
name;
candidate’s first
use of
granted
stay
on Decem-
The trial court
the line for
failure to blacken ovals next to
January
2001. On
ber
name;
writing in the
candidate’s
*4
Prothonotary transferred
Supreme Court
the
placement of
write-in candidate’s name
to this Court for a determination.
the case
on the ballot.
appeal,4
contеnds
Dayhoff
In his
After the recount
on De-
proceedings,
(1)
counting
by
the trial court
that
erred:
cember
Board filed Certifica-
that had
five ballots as votes for Kirschner
of Recount
found
Proceedings,
tion
which
“Harold Kir-
a sticker with
name
Dayhoff
that
votes and Kir-
received 308
in the District
“block”
Magistrate
schner”
votes, again
schner received 308
a tie vote.
(2)
“block”;
by
rather than the
6, 2001,
filed an
Dayhoff
On December
eleven
votes for
failing to count
ballots as
with the trial
review the
appeal
court to
him where the voters did not blacken
twenty-four
Board’s decision
Dayhoff
the line
s name
oval next to
7, 2001,
that he contested. On December
(3)
written;
failing
to count
the trial court
to sus-
ordered the Board
аs votes
him where
five ballots
pend
pend-
the official certification of votes
misspelled “Dayhoff’ or
had either
adjudication
ing
appeal.
name.
omitted his first
court then
on all
hearing
trial
conducted a
recount, and,
objections lodged
addressing
Prior to
these substan
during
we address
Dayhoff,
on December
affirmed
tive issues raised
jurisdiction
contention
Board’s determination. The trial court
belongs
Supreme
that the
candi-
concluded
vote for the two
over this case
argues
appeal
tied and
to
that an
dates was
ordered the Board
The Board
Court.5
by the
proceed in
the Election
this
is not authorized
accordance with
Court
the Election
Consequently,
is true that
Cоde.
on December
Election Code.6
initially appealed
Supreme
scope
to the
4. Our
in election contest
review
Court,
cases is limited to examination of the record
to our
which transferred the case
determine whether
commit-
the trial court
Court.
ted errors of law
whether the court’s
supported
findings
by adequate
were
evi-
cites the Election Code
6.The Board
Primary
dence.
In re Petition
to Contest
post-
provides for three different methods of
(Pa.
May
The be the central act that the Election Code has been satisfied. government. our democratic form оf To elections, goal advance the of free and fair At issue here was legislature enacted the Election ambiguities with certain caused the fact it is often said that in the interest of many that there were so candidates and fraud,
preventing
the terms of the Election
*5
reproduce
races on the ballot.
We
strictly
E.g.,
Code must be
enforced.
In
record,
Return,
explanation
por
re
clearer
Luzerne
447 Pa.
(1972).
time,
relating
oval space provided.” “in the date However, contends that five not have counted should Board Kir- a “Harold a voter affixed votes where just above the the line sticker on sсhner” that, in He contends “Supervisor.” word above, vote the Kirschner example The Board Magistrate.10 for District fact, the Board counted agree. that was candidate every for either “Supervisor.” the word close to written the line Recognizing was too candidate’s name writing-in a voters,11 Board was many small for of the instruction application in its flexible agree space provided.” to “use the approach. above demon- reproduction As the strates, into candi- separated ballot is floating fines. by a series of date “blocks” “block” from to discern one It is difficult Nevertheless, con- each “block” another. *6 office, the name the title of the tained and, а line for writ- finally, each candidate Voters were name. ing-in a candidate’s next to the “blacken the oval” instructed to to write the candi- name and candidate’s there- space provided “in the date’s name identify instructions did for.” These or a as a “block” space provided” “the Further, the instructions “box.” (R.R.-.) Record is Reproduced 55a was the provided” “space that the specify to east a vote that the voter intended clear next the oval. fine to Supervisor for Harold Kirschner The voter Magistrate. not for District supports The Election Code to blacken the followed the instructions9 1112-A,12 by added decision. Section forth, reproduced ballot Supervisor block. in relevant are set 9. The instructions sticker, printed smaller even the shows part, in footnote infra. handwriting, large to fit on was too than most write-in line. printed candidate's was a 10. Because there oval, Magistrate District it name in the 12. It states: Dayhoff’s logic electronically. If counted followed, (b) uses district which require In an election it would also to be were pa- utilizes voting system which the District electronic nullifying votes cast for electronic register the cards to per or ballot ballots Magistrate. ap- votes, following procedures will be election at of the plicable the conduct people wrote in records shows 11. The * * * district: filling the election diagonal, practically names on 1112-A(b)(3) Code, Election P.L. is the rele- July act of 3031.12(b)(3). applies paper it to conclude that the provision vant machine, voting objec- an electronic correctly overruled the trial court 1112- our situation.13 Section which is respect to the five tions of A(b)(3)14 directs the voter to “use on the fine above the placed sticker votes the ballot” to space provided therefor on “Supervisor.” word name. write the candidate’s that the tri Dayhoff next contends objected to
All five of the stickers count by refusing erred eleven al court just above placed were on the line him the voters write-in votes for where logi- “Supervisor.”15 the word The line is step of failed to tаke the additional had “space provided as the cally construed the ball blackening the oval on placement therefor on the ballot” for the 1112- Again, we turn to Section Sec- ot.16 supervisor sticker. This satisfies provision to include the don's has edited this Section 1112-A of the Here, 3031.12(b). "7”). missing Director of Elections (Dut- Registration, Dutko and Voter Monica Indeed, ko), counted all votes where the Board the Adams Board of testified that writing appeared close to the optical system com- or sticker uses an scan Elections pute Specifically, that it is "Supervisor” votes. she stated word or was located within tabulating equipment exam- automatic Certain write-in votes block. cоmputes registered ines and they appeared could be location ballots, tabulate the votes. R.R. 157a. Supervisor were with the office of associated counted, On con- but for other reasons. voting systems au- 13. There are a number of the vote ballot # the Board counted tested elections, thorized used though was writ- even his name for Kirschner (where are ranging paper ballots from provided for the write-in ten in below the line box) pencil placed into a shoe marked in supervisor block on vote but within voting system. Each pure to a However, R.R. 40a. on Kirschner’s ballot. statutory voting system subject different #19, #20, #25, #26 contested ballots voting system awas standards. these votes the Board did not cоunt # pencil marked in paper ballot that had to be the oval the voter failed to blacken in because gov- counting by electronic means. It is name, Supervisor's not because next the Election Article XI-A of erned *7 below in the candidate's name the voter wrote §§ 3031.1-3031.22. P.S. provided the write-in vote. R.R. the line for It states: 47, 48, 53, and 59. elections, the voter shall At all other for each candidates of his choice for the instruction Dayhoff also contends that the according number filled office to be may the oval have the ballot to blacken on by each persons voted for him for of to be the Elec- the Election Code because violated () office, () by making or check a cross does not refer to ovals. tion Code making punch by a or mark sense mark or provided: the ballot instruction on square opposite the name of mark in the BLACKEN THE VOTE YOU MUST 1. TO candidate, may so mark the write- or he A oval blackened OVAL COMPLETELY. position provided on the ballot in completely of the name of the to left and, provided space in the particular office a vote that candi- candidate indicates for envelope, ballot on the ballot and/or therefor date. ques- in of the office write the identification name, you must blacken a 2. To write-in any person al- of tion and the name provided, line office, to the left of the the oval ready printed the ballot for that space write the name in and written insertion shall and such mark purpose. person for such count as a vote for However, the Court in Oncken R.R. 29a-67a. office. Ewing, A.2d 404 1112-A(b)(3) 336 Pa. v. the Election of Section stated, added) (Pur- (1939) 3031.12(b)(3) (emphasis § A(b)(3) to a write- device is not able detect of the Code to resolve tronic Election vote, and cannot counted. in the vote be issue. to possible In this case it was count A(b)(3) specifically directs Section 1112— it a rela- involved manually because to a “mark.” It lists a the voter make of ballots that were tively few number variety possible marks a voter can make in If we single township. a generated choice: identify to the candidate 1112-A(b)(3) require- thе Section waive by making “... a cross or check mark or mark” for a write-in ment to make “a square mark punch or mark sense in the candidate, would then a Board of Elections candidate, or he opposite name of by every to hand required inspect be ballot may position provided mark write-in so looking possible in a write- cast office and particular on the ballot for the not the intended in votes.18 This is result ... write the identification the office it by legislature, and would create any person already name and the be sought for mischief to opportunity ... mark printed on ballot and suck uyritten voting. by avoided We cannot a vote insertion shall count as in the legislative waive this clеar directive 3031.12(b)(3) (emphasis ...” 25 P.S. added). Election Code. The trial court held that this stat- utory language required the voter provision directs us to another writing blacken oval addition to authority as for his of the Code agree. the candidate’s name. We 1223(a) ie., Elec- position, Section 1112-A(b)(3) provision tion Code.19 This states requires both a indicating the name of a candidate mark and written insertion a write-in ballot or “shall counted by writing candidate are elec- sticker be because votes () mark, tronically. ... Without the elec- a vote whether as generally Any indicating any person throughout It is established Amer- a vote for ballot, jurisdictions ican one printed who does not name whose is not on the sticker, opportunity utilize the writing, afforded statute stamping or shall be count- object irregularities before in the ballot person, placed a vote in the ed as for such if may objections the election not raise there- space spaces provided proper for that unjustifiable, to. () () would be and indeed purpose, or not an check whether intolerable, clearly after the electorate has person: Pro- placed the name such after will, expressed for a declare an its court to vided, stamp- writing, That if such however. merely election null and void because of ing placed over of a or sticker is the name inconsequential defect some in the form ballot, printed ren- candidate on the it shall the ballot. void. der the entire vote in said office block nullify The court should an election based on 1223(a) of the Election only lacking it the form the ballot if is so amended, 3063(a) (emphasis add- *8 conformity confusing with the law and so ed). intelligently express the voters cannot their Although provision does not refer this the intention. Id. ovals that voting system, used in an electronic ballots confusing are mentions not so that this the had to Dutko testified that write-in votes nullify election. should manually or hand the coun- be counted Thus, provision ty this officers. R.R. 158a. supra 17. See note 14. Further, is applies present to the case. there limiting provision its language this no within only exсeption would for ballots 18. The be manually; even application ballots straight straight Repub- or with a Democratic provision, wouldn’t a it if there such vote. lican purposes office because for the matter 1223(a) manu- Supervisor ballots were counted provides, in Specifically, Section part, ally. pertinent () placed provides check after the name of provisions such one of its where 3063(a). However, § person.” provision conflicts with another in the P.S. 1223(a) Code, Election Article XI-A apply provision type Section does not 1112-A(b)(3), controls.25 Section which of ballot at issue in this case. Section 1223(a), 1223(a) conflicts Section is the con- is found in Article XII of the Elec- case, trolling provision this and it re- Code, 3041-3070, §§ tion P.S. which quires both and a a mark written name in was enacted in 1937 when voters used order for a to be vote counted. paper either a or a voting ballot20 ma- 1223(a) chine21 to vote. Section directs In the eleven votes that count- were not counted, paper how be ballots will includ- Dayhoff, ed for failed to blacken defective ing require ballots. does not a Supervisor. they the oval for Although 1223(a) “mark” ap- because Section has no near) (or Dayhoffs wrote in name on ballots, plication which must provided ballot, line on the 1112- Section a have mark in order for the machine to A(b)(3) provides that a mark and a written
recognize a vote.
insertion
must be made.
In the absence
blackened,
the oval being
could
Code,
Article XI-A
Election
not
for Dayhoff.
be counted
affirm
3031.1-3031.22,
§§
P.S.
enacted in
the trial
decision on
objection
court’s
1980,22governs voting by electronic voting
by Dayhoff.
at
systems.23 The ballot
issue here was
is,
designed for electronic votes24 and
Finally,
contends that
thus, governed by Article XI-A of the
trial court
in declining
erred
to count five
article specifically
Code. This
ballots for him
either
voters had
as,
A
equip-
ballot
tabulating
is defined
"ballot cards or
and tabulated
automatic
upon
registers
§
a
system
which voter
or
ment.” 25
3031.1. The
must
apparatus by
provide
records his vote
permanent physical
or the
recоrd
registers
electronically
voter
each vote cast. Id.
envelope, paper
include
shall
other material on which a vote is recorded for
program
24. The Board
automatic
persons
appear
whose
do
names
on the
tabulating
register
equipment to
for the
ballot labels."
1101-A of
the Elec-
Supervisor
Township pre-
Joy
race in Mount
tion
25 P.S. 3031.1.
print-
sumably because there were no names
ed on the ballot. This was error.
record
The
"voting
21. The
machine” referenced is a me-
pro-
shows that
Board could
have
device,
chanical
electronic device.
grammed
equipment
by using
voting
statute
The
race,
have
and it should
done so. R.R. 159a.
machine,
by operating
will vote
voter
controlling provision;
Article XI-A is not the
handle,
knob,
key,
pointer
upon
adja-
statutory
there is no
authorization
revert-
cent to which the name of such candidate is
ing
to Article XII
these circumstances.
placed.
appear
aIf candidate does not
on the
ballot,
by irregular
may,
the voter
ballot con-
provides:
25. Section 1122 A
taining
person, deposit
the name
such
provisions of
this article shall consti-
affix
ballot in or on machine
voting
tute an
method
and all
additional
purpose.
1216 of the
Elec-
provisions
act
of this
shall be construed to
25 P.S. 3056.
be in
and effect
full force
unless inconsis-
*9
provisions
tent
with the
article.
July
Act of
P.L. 600.
22.
of
added).
(emphasis
25
This is
3031.22
logicаl
specific
XI-A
elec-
system
because Article
is
voting
sys-
An electronic
means "a
23.
(enacted
voting
voting
tronic
and later in time
in
in
tem which one or more
devices are
1986)
permit
registering
recording
than the rest of the
used to
of
in
computed
votes are
which was enacted
1937.
in which such
hand,
voters
there are five
first
On
other
his name or omitted his
misspelled
county
name
in the
with the
registered
does not ad
name. The Election Code
D-E-H-O-F-F,
have the
but none
spelled
how exact a write-in candidate’s
dress
that he
Dayhoff testified
appear
must
in order to be counte
first name “Sam.”
name
D-
spelled
his name
as
precedent pro
However
law
received mail with
d.26
case
McCraсken,
pro-
E-H-O-F-F
and that
often
people
In Appeal
vides direction.
(1952),
Fur-
with this spelling.
nounce his name
370 Pa.
88 A.2d
ther,
held,
Dayhoff
grandfather
testified that his
Supreme Court
our
uncle,
“Dehoff’
did his
spelled his name
found,
where
intent is
the voter’s
[T]hat
in
spelled his name
though
even
he never
not be
the fact that
it should
defeated
a
such manner.27
name of the candidate is misspelled,
wrong
employed or some oth-
initials
persons
The
that there were other
fact
slightly
name of like or
er or
different
“Dayhoff’
“Dehoff’
name
with
last
pronunciation has been written
similar
in-
finding
does not
a
of voter
undermine
actually
of that
candidate
instead
by our
explained
Supreme
tent. As
McCracken,
intended to be voted for.
Appeal
in
may
...
be
which
[A]
supports
The record
this case
factu-
only al-
a candidate’s surname
contains
that the
finding
al
voters intended to vote
in the
though
are other persons
there
Dayhoff.
L.
for Samuel
name, it
borough having the same last
Dutko,
Monica
the Director
Elections
there
no other
being shown
was
Registration
County
for Adams
and Voter
name
a candi-
person of such
who was
(Director),
Day-
that Samuel L.
testified
other office.
any
date for the same
only
Dayhoff running
hoff was
A.2d
370 Pa. at
at 789.
Supervisor,
office of
and he had been the
wife
Dayhoff
there
evidence that
s
was no
years prior
for six
elec-
in Adams
any
the five “Dehoffs”
addition,
Dayhoff
tion.
had
no other
It
any
office.
wеre candidates
politics.
local
in local
assumed
office or ran
the five votes at issue
apparent
also
The Director
testified
there are
Dayhoff.
were intended for
only
registered
township
two
it re-
explain why
did not
Dayhoff spelled
with the last name
D-A-
Board
Y-H-O-F-F,
votes for
L.
and his
fused to count
Samuel
wife,
was
Dayhoff.
misspelled
T.
name
or his first name
Ellen
incumbent;
requires
ning
and Lamb
simply
person
for office as an
"the name
already printed
on the ballot for that
aggressive campaign for
conducted an
1112-A(b)(3)
office....”
of the Elec-
many potential voters.
he met
office where
Code. See
note
Petition,
Also,
infra
D. & C.
Harer’s
(1944),
the court counted
missing. if objected We do not the Board ceeding. know Kirschner to: two misapprehended Dayhoff could for the vot- the not dis- votes counted where law cern, matter, Dayhoffs as factual intent. ers name in the wrote District voter trial Magistrate Supervi- The court declined to this issue block rather than the decide 2) block; if it to Day- because even were decided sor the Board’s failure count favor, it for eight hoffs would not affect the out- Kirschner votes where However, come the vote. not to count blacken the did not oval in addition to name; 3) gives weight writing these too much to a in his “technicality” against which result our count Su- failure to five votes Kirschner for preme Court warned in Appeal James. where the voters had in different written hold, therefore, We Board should versions “Harold Kirschner.” Dayhoff counted the have five ballots The trial court two correctly counted Dayhoffs where the voter first omitted ballots for when wrote the voters misspelled name or name. his last Such in Dayhoffs Magis- name in the District appear satisfy a form to sufficient trate “block” rather than the 1112-A(b)(3) Section Election Code. Like “block.” the stickers Kirschner’s on ballots, the contested write-in votes were Dayhoff contends that we should written, logically, on the line above review the trial decision on court’s “Supervisor.” word Because the voters objections Kirschner’s fifteen Kir- because Dayhоffs “in space wrote name appeal.28 disagree. schner we provided,” they complied conclude that appeal Kirschner did not he because 1112-A(b)(3) terms of aggrieved; he won election once 3031.12(b)(3). the Election 25 P.S. Further, casting of lots occurred. Sec tion 1407 of the Election Code trial court also correctly The refused that “The court on have appeal shall count eight ballots Kirschner where full power and authority to hear and deter oval but voters failed to blacken the any all pertaining above, mine matters fraud or explained wrote in name. As 1112-A(b)(3) error committed in district to election of the Election Code relates, which such appeal and to make requires a mark and a insertion. written right justice may oval; such decree as re the voters failed to blacken the ” .... quire Section 1407 of these count- accordingly, ballots cannot be 3157(b). Fairness re ed as votes for Kirschner. quires that we also trial review the court’s The trial court should have on objections. decisions Kirschner’s five for Kirschner his name objected
Kirschner deci- only to the Board’s was written “Geo Kirschner” or on pro- sion fifteen ballots at recount “Kirschner.” The Director testified McIntyre, Appeal appeal person raised relies on matters (1941). McIntyre, 22 A.2d two aggrieved inquiry and cannot broaden its towns, Burgess, Borough Dunmore held investigate generally. frаud in the election primary detecting voting a fraud, election. After Thus, by adjudicating trial erred court Burgess primary a candidate in the present in Dunmore. case returns The appealed. The trial court threw out the elec- McIntyre Dayhoff con- differs from because Borough returns in both Dunmore prop- tends that ballots were not counted Burgess though even from no candidates erly supervisor position; all of the appealed. Supreme Court Dunmore po- supervisor contested ballots related to the overturned the trial court's order and rea- subject to sition are review. soned that the trial court limit itself to must
1013 paper the eleven in the to disallow only registered two vоters sion there are Kirschner, ballots for eight paper and the the last name township with for wife, the voters failed simply Linda J. because Kirschner and his Kirschner Harold J. oval on the ballot Because Harold J. Kirschner Kirschner. to blacken only running Super- for line the candidates’ was the Kirschner next visor, supports the record the conclusion written. were names for five ballots intended that these were no that the Adams dispute There is McCracken, Thus, Appeal him. under manually count- County Board of Elections should have been counted. these votes Likewise, there is ed the write-in ballots. from the Di- testimony dispute no A in determi change Registra- Elections and rector of Voter candidate natiоn on five votes for each Dutko, tions, Monica established and in votes for 313 results made no difference blackening of oval Kirschner, vote. The for still a tie votes for a registering in terms of legal declined to consider the trial court failure and a write-in slot voter’s in arguments by candidates raised both affect on the oval had no adverse blacken proceeding question recount on the ability of process election or the elec- whether these ten were valid. count, accurately compute tion officials question to rule declined because return the election results. change outcome of the agree. The trial court cor race. We 1112-A(b) of the in affirming rect the Board because Act P.L. of June change ten of the votes do the outcome amended, by added vote; a tie it remains vote. July P.L. Act of we affirm court. Accordingly, the trial 3031.12(b), part: in relevant uses an In an election district which ORDER voting system which utilizes October, NOW, this day AND 17th register cards to paper ballots ballot of the the order Common votes, will following procedures County, Pleas of Adams dated December for conduct of the elec- applicable be 10, 2001, in the matter is above-captioned tion at the election district: hereby affirmed. (2) elections, the voter primary At SMITH-RIBNER, J., opinion files candidates his vote shall in
concurring part dissenting part. nomination, accоrding to the choice for by Concurring dissenting opinion persons to be voted number of Judge SMITH-RIBNER. him, making a cross for each office (X) making (/) a or check mark Majority’s I with the decision concur mark mark [sic] Harold J. sense paper punch the five ballots for allow his the name of candi- square opposite Kirschner contained sticker date, ... write the identification Magistrate” in the name inserted “District name of question and the block the office “Supervisor” block instead already printed L. any person the five ballots for Samuel office, mark and for that and such misspelled Dayhoff where count as I dis- insertion shall omitted his first name. written surname or office. however, person deci- for thаt such Majority’s with the agree, *12 Dutko testified that Adams uses teen write-in ballots on a mere tech- tabulating equipment automated nicality to tabu- and to disenfranchise those nine- late paper votes and that the automated teen voters who sought participate system was not programmed to read or the democratic process. The Majority’s register any by reading recogniz- fundamentally decision is at odds with the ing a blackened oval with regard to a standard that the Supreme Court enunci- position that did not contain a ballot in Appeal ated McCracken. my Thus candidate. The trial court acknowledged dissent. much, and because the challenged write-in votes for and Kirsеhner registered,
were not tabulated or recorded means, I conclude that Sec- 1112-A(b)
tion Pennsylvania Elec- clearly Code applies to this case. Once the voters wrote the names of ROHRER, H.E. Bailey INC. t/a Kirsehner, their votes should Coach, Inc., Appellant, have been irrespective counted of the vot-
ers’ failure to blacken the oval beside the
v.
candidates’
names. The
Su-
ZONING HEARING BOARD OF
preme
McCracken,
Court in Appeal
JACKSON
AND
TOWNSHIP
(1952),
be more vital toward accomplishing an just
honest and selection than ascertaining
the intention of the voter.
Here, the intention of the nineteen vot-
ers cannot be clearer: eleven of in- them
tended Dayhoff by to vote for writing his
name on the eight ballot and of them
intended to vote for by writing Kirsehner
his name on the ballot. These ballots were
then manually, and the Director of
Elections confirmed that the voters’ failure
to blacken the oval beside the candidates’
names made no difference in registering
their This votes. evidence demonstrates intent,
the voters’ and it also demonstrates
that the election difficulty officials had no
in ascertaining that intent. despite Yet evidence,
this clear and unequivocal
Majority has chosen to disallow the nine-