Luzerne County Court ruling pending on tallying of write-ins without shaded ovals

A panel of Luzerne County judges will issue a ruling soon on the tallying of write-in votes without accompanying shaded ovals in the Wilkes-Barre City Council District B race, Judge Tina Polachek Gartley said following a Wednesday hearing on the matter.

County Judges Tarah Toohil and Stefanie Salavantis also are on the panel adjudicating Wilkes-Barre Councilman Tony Brooks’ emergency petition attempting to force the county to process all write-in votes in his race.

The county had planned to resolve the matter and avoid a hearing by agreeing to count the write-ins with non-shaded ovals in that particular race, as it did in a prior settlement with City Mayor George C. Brown over his write-ins, officials said during today’s hearing.

However, city council candidate Mark Shaffer filed an action intervening in Brooks’ case before that stipulation was fully executed, forcing the matter to proceed to a hearing Wednesday.

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.

Similar to Brown’s filing, Brooks’ petition filed through Borland & Borland in Wilkes-Barre said state law prior to March 26, 2020 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, it said. 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.

Shaffer’s filing through attorneys at Joyce, Carmody & Moran PC in Pittston, argued 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.”

Shaffer represented himself during Wednesday’s hearing, saying he was unable to secure other legal counsel. Attorneys from the Pittston firm were granted court approval to withdraw from the case following a county law office legal opinion that the firm had a conflict of interest related to its handling of prior cases for the county.

Each side reinforced their conflicting interpretations of the law during Wednesday’s hearing, with attorney Sarah Borland representing Brooks.

When questioned by Polachek Gartley, county Assistant Solicitor Paula Radick told the judges the county was not taking a position on the matter.

The judge pressed for the reason, saying Wednesday’s hearing was a direct result of the county’s legal position that those without shaded ovals should not be counted.

Despite this original decision, the county then proceeded with an action “contrary” to that position by agreeing to stipulations to tally those for Brown and Brooks, although the latter was never executed due to Shaffer’s filing, Polachek Gartley said.

Radick said the law, as it stands, is still not clear, and the county decided to count Brown’s votes in the interest of completing the election tally.

Polachek Gartley also pointed out contradictory information about the write-in procedures has been provided by the county, according to information presented in court filings and at Wednesday’s hearing.

The actual ballots instruct voters to both shade in the oval and write the name. However, an election digest the election bureau included in materials for Election Day poll workers said voters only have to write the name.

Radick said the instructions on the ballot are what should be followed and added that poll workers don’t process write-in votes. However, Polachek Gartley said the contradictory information the county supplied to poll workers must be considered because these workers help voters when they have questions about how to proceed.

Polachek Gartley also noted write-in voting was different with the county’s decision to use paper ballots instead of the electronic ballot marking devices because the voter’s intent to cast a write-in was automatic with the devices. Voters also merely type out write-in selections on the devices, as opposed to fitting the first and last name into a finite space on the paper ballots, she said.

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

On the Democratic side, Shaffer ran unopposed on the ballot and received 214 votes. 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. No reports were compiled on how many more were cast without darkened ovals.

Following the hearing, Brooks provided this statement about Shaffer: “It’s astonishing that a so-called progressive would disenfranchise the intent of a voter.”

Shaffer said he contested the tallying based on what he believes is a clear legal requirement but was driven by his belief that it is “incredibly undemocratic to not have choices” in the general election. He said he passionately opposes the state’s closed primaries.

“There are more than 700 voters in our district (B) that are not Democrats or Republicans, and the idea of all those voters not getting to make a choice is very disturbing to me,” he said.

Tally update

The county’s five-citizen, volunteer election board continued its processing of primary write-in votes Wednesday but must return Thursday due to the number awaiting review.

When the board wrapped up shortly before 5 p.m. Wednesday, it had painstakingly processed write-in votes on nearly 38,000 ballots to date, with many ballots containing multiple write-in selections.

The election bureau will publicly post a list of all write-in results when the tallying is completed.

The board has scheduled its certification of election results at 1 p.m. Monday at the county courthouse on River Street in Wilkes-Barre.