Court hearing on Wilkes-Barre council write-in tallying moved to Wednesday

Tuesday’s Luzerne County Court hearing on the tallying of write-in votes in the Wilkes-Barre City Council District B race was continued until 11:30 a.m. Wednesday.

The rescheduling was necessary because city council candidate Mark Shaffer filed an action Monday seeking to intervene in the case initiated by Councilman Tony Brooks.

Mirroring the recent action of City Mayor George C. Brown, Brooks filed an emergency petition May 25 seeking the counting of all write-in votes without shaded ovals in his race.

Based on legal advice, the county election board had taken the position that voters must both shade in the oval and write a name for a write-in to be accepted.

Brown reached an agreement with the county election board and election bureau after his emergency petition was filed last week, with the county saying it would review and tally all write-in votes for Brown. However, that agreement applied only to Brown’s Republican write-in votes and not those in any other races, county attorneys had stressed.

Brown is hopeful he will have enough write-in votes to receive the Republican nomination. He secured the Democratic nomination with 2,396 votes and had no opposition.

On the Republican side, Harry L. Cropp III appeared on the ballot with no Republican opposition and secured 453 votes, according to the unofficial results.

The county reported a total 363 write-in Republican votes in that race, which would only be the ones with ovals shaded. The county has no count on the number of write-in votes without shaded ovals.

Facing a deadline for a similar challenge, Brooks asked the court to order the board to tally his Democratic write-in votes without shaded bubbles.

Brooks ran unopposed on the Republican ballot in that district and received the party’s nomination with 182 votes, according to the unofficial results.

On the Democratic side, Mark Shaffer ran unopposed on the ballot and received 214 votes based on the unofficial count. However, Brooks ran a write-in campaign seeking the Democratic nomination, and at least 279 write-in votes were cast. If most write-ins are for Brooks, he stands to receive the Democratic nomination.

The total of 279 write-in votes is based only on those with the shaded ovals. Again, no reports were compiled on how many more were cast without darkened ovals.

Similar to Brown’s filing, Brooks’ petition filed through Borland & Borland in Wilkes-Barre said the purpose of the shaded oval is “merely to enable the electronic scanner” to print out a report of how many write-in votes were cast.

“While the darkened ovals are used for convenience to tabulate ballots for candidates whose names appear on the ballot, that is not the function of the ovals in the cases of write-ins,” it said.

Prior to March 26, 2020, state law would have required voters to both mark the write-in selection and name of the candidate in jurisdictions with electronic voting systems that use paper ballots to register the votes, the petition said.

However, the law was amended after that date to eliminate the requirement that a voter “mark” a write-in candidate, specifying that voters can “indicate” their intent to select a write-in by inserting the name of the person.

Voters showed this indication when they expressly declined to select a named candidate on the ballot and instead wrote in the name of their choice, it said.

“Even though the plain language of the Election Code reveals that a voter no longer needs to ‘mark’ their intention to vote for a write-in candidate, the election board incorrectly maintains that ‘the guidance provided to the board requires the oval on the ballot to be colored for a write-in vote,’” it said.

Shaffer’s filing through attorneys at Joyce, Carmody & Moran PC in Pittston, argues write-ins should not be counted if the oval is not shaded.

It cites a different interpretation of the same law cited in Brooks’ action.

“The law is clear that a vote for a write-in candidate must be ‘indicated’ and ‘inserted’ which requires an indication by shading the ‘write-in’ oval and inserting the name of the write-in candidate the elector wishes to vote for,” Shaffer’s filing said. “By the plain language of the statute, a perfected write-in vote requires these two actions.”

The proposed order says the election board should be directed to count only those write-in votes that comply with the election code’s “two-step” requirement.

Shaffer said he is in the process of changing attorneys. Attorneys from the Pittston firm are seeking withdrawal from the case.