In re Pennsylvania General Election for Snyder County Commissioner

DISSENTING OPINION BY

Judge LEAVITT.

I respectfully dissent. “The technicalities of the [Pennsylvania] Election [Code1] ... are necessary for the preservation of the secrecy and purity of the ballot and must, therefore, be meticulously observed.” In re Primary Election of April 28, 1964, 415 Pa. 327, 336, 203 A.2d 212, 217 (1964). While it is true that the deci-sional law of this Commonwealth generally frowns upon discounting a vote where voter intent can be discerned, see, e.g., Appeal of James, 377 Pa. 405, 410, 105 A.2d 64, 66 (1954), “violations of substantive provisions of the [Election] Code cannot be overlooked on the pretext of pursuing a liberal construction.” In re April 10, 1984 Election of East Whiteland Township, Chester County, 85 Pa.Cmwlth. 594, 483 A.2d 1033, 1036 (1984). Adhering to the foregoing principles, our Supreme Court has indicated that the validity of a ballot must first be ascertained before any factual inquiry into the intention of the voter. Appeal of Yerger, 460 Pa. 537, 547, 333 A.2d 902, 907 (1975).2 See also James, 377 Pa. at 410, *598105 A.2d at 66 (stating that resolution of election controversies must begin with the inquiry “Was any specific provision of the Election Code violated?”).

The Election Code sets forth specific requirements for election day procedures and the process of voting. Relative to the instant case, involving an electronic voting system which utilizes paper ballots or ballot cards to register the votes, Section 1112-A(b)(3) of the Election Code provides as follows:

(3) At all other elections, 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 therefor 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.

25 P.S. § 3031.12(b)(3) (emphasis added).3

As the Election Code makes clear, a write-in vote may only be counted if the name written in is “not already printed on the ballot for that office.” It follows that a write-in vote for a person whose name already appears on the ballot shall not count as a vote for that person. This is the exact situation presented by the ten write-in votes at issue in this case. Because those votes were clearly invalid under the express provisions of the Election Code, I would affirm the trial court’s decision to discount those votes, albeit on different grounds.4

. Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.

. The Court stressed that "once it has been ascertained that a ballot was validly cast, the issue of how to count the ballot is one of the *598intention of the voter.” Yerger, 460 Pa. at 546, 333 A.2d at 907 (citing McCracken Appeal, 370 Pa. 562, 88 A.2d 787 (1952)).

. Section 1112-A(b)(3), as part of Article XI-A of the Election Code, was added by the Act of July 11, 1980, P.L. 600. This 1980 enactment post-dates by nearly thirty years the James decision which the majority asserts is controlling in this case. It is enough to say in this respect that James naturally bows to the superseding statutory authority. In any event, James is distinguishable from the present case because, as the majority acknowledges, it involved a different provision of the Election Code, Section 1003(e), 25 P.S. § 2963(e). More importantly, the dispute in James involved paper ballots which necessarily had to be visually examined by the tabulators. In the case sub judice, the paper ballots were scanned electronically and therefore subject to entirely different, and more recent, Election Code provisions.

. The trial court relied upon "Standards for What Constitutes a Vote” promulgated by the Voting Standards Development Board, specifically Standard Optical Scan 14 (“A properly cast write-in vote shall contain a mark in the target area and, in the space provided, the written name of a candidate whose name does not otherwise appear on the ballot for that office."). I agree with the majority that these "standards” are advisory and do not have the force and effect of law. However, since Standard Optical Scan 14 comports with Section 1112-A(b)(3) of the Election Code, the trial court's analysis is consistent with the law. I would simply rely upon the statute itself, which is free from ambiguity and controlling on the ultimate issue in this case regarding the validity of the challenged ballots.