Luzerne County Election Board discusses shading of ovals on ballots

The subject of shading ovals on Luzerne County ballots is under discussion again.

In last year’s primary, the focus was on write-in votes that did not have the adjacent oval filled in.

Now the county election board is discussing what happens when voters circle candidate names or the words yes or no for ballot questions instead of filling in the oval as instructed.

Election board members said during last week’s meeting they regularly encounter this issue and contemplated establishing a policy so it’s clear how they will proceed when such ballots are presented to them during post-election adjudication.

However, a policy was not approved because Assistant Solicitor Gene Molino cautioned against declaring a position in advance, particularly if it would send a message to voters that they don’t have to follow instructions for their selection to count.

Decisions on ballots that don’t comply with instructions should be made during adjudication, he said.

County Assistant Solicitor Paula Radick said the focus at this point should be educating the public about the shading requirement.

But if such noncompliant ballots do end up before the board, Radick said the board now has last year’s county Court of Common Pleas ruling related to write-in vote oval-shading to provide guidance.

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

However, a panel of county judges granted Wilkes-Barre Councilman Tony Brooks’ emergency petition, which argued the county should process all write-in votes in his race, regardless of whether the ovals are shaded.

Brooks’ petition argued a March 2020 state law amendment made it clear voters indicate their intent when they write in the name of a candidate, even if they don’t mark the oval next to that name.

The panel of judges — Tina Polachek Gartley, Tarah Toohil and Stefanie Salavantis — agreed with the interpretation presented by Brooks.

In response, the election board unanimously voted last July to count future write-in votes when voters fail to shade in the oval adjacent to the handwritten name.

Oval shading pertains to paper mail and provisional ballots because electronic ballot marking devices used at polling places have touchscreen prompts for typing in write-in selections. More paper ballots were involved when the matter came up last May because the county had temporarily experimented with using paper ballots at polling places instead of the electronic devices.

On the present subject of circling candidate names and referendum choices, the law office has contemplated last year’s county court ruling and would recommend the board accept these selections without shaded ovals if the board believes voter intent is clear, Radick said.

Election Board Chairwoman Denise Williams questioned the applicability of the write-in court ruling, saying she believes write-ins are treated differently in state law. The law says the insertion of a write-in name shall count as a vote without marking a box, but it states a mark is required in the square opposite the name for candidates whose names appear on the ballot, she said.

Radick said last year’s ruling shows the court would likely consider circling of the selection as evidence of voter intent.

“The court looks to voter intent and wants to enfranchise every voter,” Radick said.

Molino said he concurred with Radick’s legal opinion and believes there are other state cases that err on the side of counting such votes.

Board Vice Chairwoman Alyssa Fusaro noted the board may encounter the issue with a referendum asking April 23 primary election voters if they want to convene a government study commission.

The board did not count circled yes/no selections for superior court judges in the November 2023 general election if the oval was not shaded, Fusaro said.

Board member Rick Morelli said he can’t speak to the past because he only recently joined the board, but he wants to be consistent in adhering to rules.

Williams maintained the only definitive way to know voter intent is through shaded ovals as instructed.

Republican committee

In another procedural matter, the board reaffirmed it will be following its existing policy on which write-in votes are itemized by name.

When the total number of write-ins in a race is not high enough for anyone to secure a nomination, the board does not list each name with tallies. Instead, the write-in total is reported in a general “scattered” category.

For the upcoming primary, many write-ins are expected for county Republican committee seats.

The party has two committee seats in each of the 186 voting precincts, or a total of 372, officials have said. Approximately 115 precincts have only one candidate or no committee candidates on the ballot.

Committee candidates had to secure at least 10 signatures to appear on the primary ballot. That means the board will only itemize individual names if 10 or more total write-in votes are cast.

Parties may want to use lists of those receiving fewer than 10 write-in votes for leads on citizens who may be appointed to committee seats left vacant, but board members said they must apply the policy uniformly for all races.

Williams noted scattering was used two years ago when county Democratic committee seats were on the ballot, and it would not be “fair and equal” to deviate from the practice in the upcoming primary.

Fusaro said she fully supports scattering.

Molino said state election law indicates election boards should not certify write-in votes for a candidate unless the votes cast are equal to or greater than the number of signatures required on the nomination petition for those appearing on the ballot, which in this case is 10.