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ANTOINETTA SMITH, TRACY LANDIS, AND JOANNE BORDERS, Plaintiffs v. YORK COUNTY DEPARTMENT OF ELECTIONS, Defendant
By cpugh on January 3rd, 2012
ANTOINETTA SMITH, TRACY LANDIS, AND JOANNE BORDERS, Plaintiffs v. YORK COUNTY DEPARTMENT OF ELECTIONS, Defendant
Election – Write-in Votes – Recount
 
No. 2011-MI-000174-55
 

1. Michael Helfrich, a successful “write in” candidate in the election, won the position on the York City Council by 6 votes; Mr. Helfrich received 1,003 votes and Ms. Smith received 997 votes.  A recount of the election was held on December 12, 2011; the same results were reported.  Mr. Helfrich filed a Petition to Intervene in this case on December 14, 2011, which this Court granted by Order dated December 16, 2011.

1. Petitioners Antoinetta (Toni) Smith, a candidate in the election at issue, Tracy Landis and Joanne Borders filed a Petition to Recanvass, Recount and Redress York City Council Elections on December 1, 2011.  The Department of Elections and Voter Registration and York County Board of Elections filed an Answer on December 5, 2011.

1. Petitioner Smith sought to have certain write-in votes disregarded while Mr. Helfrich sought to have certain write-in votes that were not counted included.

1. On December 16, 2011, after hearing testimony on the issue of whether certain write-in votes should or should not have been counted in the totals for Mr. Helfrich , the Court held that it would not discard any of the votes counted for Mr. Helfrich and would add one vote to the Mr. Helfrich’s total.

 
 
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In the Court of Common Pleas of York County, Pennsylvania, Civil Division; ANTOINETTA SMITH, TRACY LANDIS, AND JOANNE BORDERS, Plaintiffs v.YORK COUNTY DEPARTMENT OF ELECTIONS, Defendant;
Election – Write-in Votes – Recount.
 
APPEARANCES:

MARISA G. BUTTON, Esquire
For Petitioners
 
MICHAEL W. FLANNELLY, Esquire
For Defendant York County Department of Elections
 
CHARLES J. HOBBS, Esquire
For Michael Helfrich, Intervener
 
 
OPINION IN SUPPORT OF ORDER CERTIFYING
YORK CITY COUNCIL ELECTION RESULTS

 
Facts and Procedural History
Petitioners Antoinetta (Toni) Smith, a candidate in the election at issue, Tracy Landis and Joanne Borders filed a Petition to Recanvass, Recount and Redress York City Council Elections on December 1, 2011.  The Department of Elections and Voter Registration and York County Board of Elections filed an Answer on December 5, 2011.
 
Michael Helfrich, a successful “write in” candidate in the election, won the position on the City Council by 6 votes; Mr. Helfrich received 1,003 votes and Ms. Smith received 997 votes.  A recount of the election was held on December 12, 2011; the same results were reported.  Mr. Helfrich filed a Petition to Intervene in this case on December 14, 2011, which this Court granted by Order dated December 16, 2011.
 
This Court heard testimony on the issue of whether certain write-in votes should or should not have been counted in the totals for Mr. Helfrich on December 16, 2011.  Petitioner Smith seeks to have certain write-in votes disregarded while Mr. Helfrich seeks to have certain write-in votes that were not counted included.  The Court will not discard any of the votes counted for Mr. Helfrich and will add one vote to the Mr. Helfrich’s total.
 
Issue Presented
Whether Certain Write-In Votes Counted or Discarded by the Board of Elections Should be Discarded or Counted in the Tallying of the Number of Votes for Candidate Michael Helfrich.
Discussion
In determining whether the write-in votes counted or discarded by the Board of Elections were properly tallied, this Court must consider above all the intent of the voter.  At issue in this case are the write-in ballots for write-in candidate Michael Helfrich.  It should be noted at the outset that this case is unique among the case law discussed below as the write-in votes were accomplished by electronic means.  Essentially, a voter “typed-in” their write-in vote on a computer voting machine using a touchscreen “QWERTY” keyboard.  There are no Pennsylvania cases dealing with computerized electronic voting machines.  All of the existing case law in Pennsylvania deals exclusively with handwritten write-in votes.
The Court notes that there are specific issues that arise when one types in a vote: typographical errors, failing to make a space between first and last names,[1] misspelling of names, using only the last name,[2] missing letters, accidently hitting the key adjacent to the intended letter,[3] and citizens (especially older citizens) lacking familiarity with computer typing.[4]
At the hearing before this Court on December 16, 2011, each vote counted for Michael Helfrich which Petitioners believe should not have been counted were meticulously reviewed.  Upon questioning, the York City Bureau of Elections and Voter Registration Acting Director testified that in deciding to include or not include a vote, the “standard” used was whether the intent of the voter was clear.  This Court is tasked with the same inquiry and must determine whether the names contained in the ballots counted as votes for Mr. Helfrich did actually reflect the intent of the voter to vote for Mr. Helfrich.
While 25 P.S. §3031.12(b)(3) allows a voter to write-in a candidate on a ballot, the statute does not provide a standard for determining whether the name written incorrectly or incompletely serves as a vote for a specific candidate.  Whether an incorrect or incomplete name is counted for a candidate is governed by case law.
 
In Appeal of McCracken, 370 Pa. 562, 566 (1952), the Supreme Court stated that:
where the voter’s intent is found, it should not be defeated by the fact that the name of the candidate is misspelled, the wrong initials employed or some other or slightly different name of like or similar pronunciation has been written instead of that of the candidate actualy [sic.] intended to be voted for…A ballot may be counted which contains a candidate’s surname only although there are other persons in the borough having the same surname, it being shown that there was no other person of such name who was a candidate for the same or any other office; and so also if only the middle name of the candidate is wrong or if the first name is abbreviated or if the wrong initials are used.
 
Id. at 567 (citing 9 Ruling Cas Law, page 1144).  The Supreme Court has further stated in numerous cases that the policy of the Commonwealth is “to protect the elective franchise,” Petition of Cioppa, 533 Pa. 564, 568, 626 A.2d 146, 148 (1993), that election laws “‘will be construed liberally in favor of the right to vote,’” Appeal of James, 377 Pa. 405, 408 (1954) (quoting 29 C.J.S., Elections, § 7, p. 27), and that “‘[m]arking a ballot in voting is not a matter of precision engineering but of an unmistakable registration of the voter’s will in substantial conformity to the statutory requirements.’” Shambach v. Bickhart, 845 A.2d 793, 798-99 (2004) (citing Appeal of Gallagher, 41 A.2d 630, 632 (1945)).  The Supreme Court stated in Appeal of James that the power to discard a ballot for an irregularity “’must be exercised very sparingly and with the idea in mind that either an individual voter or a group of voters are not to be disfranchised at an election except for compelling reasons.’” 377 Pa. at 409-410 (citing Case of Bauman Election Contest, 351 Pa. 451, 454-455).  The manifest intention of the voter determines to whom the vote is attributed, not the number of mistakes made by a voter in transcribing the name of the candidate.
In reviewing this case law the Court recognizes the imperative that no standard should be enforced that would result in the disenfranchisement of the citizens of Pennsylvania.  For reasons further discussed below, the Court finds that the intent of the voters responsible for the ballots questioned by Petitioners was to vote for Michael Helfrich and to discard those votes for spelling errors or other mistakes and omissions would serve to disenfranchise those voters.
 
The Court also finds that a vote[5] not counted by the Board of Elections clearly evinces the intent of the voter to cast a vote for Michael Helfrich and the Court will thereby order that the vote be counted for Mr. Helfrich in the final certified election totals.
In reaching the above findings the Court considered various facts presented by this case.  First, there was no other candidate for city council with the name Michael Helfrich, or even with the last name Helfrich or some near variant.[6] Second, only seven registered voters in York have the last name of “Helfrich,” there are no other “Michael Helfrichs,” and no “Helfricks” are registered to vote.  Third, Mr. Helfrich actively campaigned, sending out thousands of mailers, personally handing out flyers, making robo-calls, and campaigning door-to-door.
 
Petitioners argue that, despite these facts, the mistakes, omissions, and flaws in the names typed in by some voters were egregious enough to warrant the discarding of those votes.  Among the mistakes commonly pointed to by Petitioners was the inversion of letters or the first and last name, the absence of a space between the first and last name, misspellings of “Michael” and/or “Helfrich,” and misspellings that, when spoken aloud, did not phonetically sound identical to “Michael Helfrich.”
In Dayhoff v. Weaver, 808 A.2d 1002 (2002), the Commonwealth Court found that the trial court had erred in declining to count write-in ballots for Candidate Dayhoff where voters had either misspelled his name or omitted his first name.  The Commonwealth Court found that the facts of the case supported the factual finding that the voters had intended to vote for Dayhoff. Id. at 1011.  In the case, only two registered voters had a last name of “Dayhoff,” the candidate and his wife.  And, as to the misspelled “Dehoff,” only 5 registered voters had that name.  Candidate Dayhoff testified that people commonly believe that Dehoff is the proper spelling of his name based on pronunciation.  In this case, Mr. Helfrich similarly testified about his oft misspelled first and last names, often the phonetically identical “Micheal” and “Helfrick.”  The Commonwealth Court also addressed the misspelling of the candidate’s name or the use of only his last name.  Citing Appeal of McCracken, the Commonwealth Court stated that “[t]he fact that there were other persons with the last name ‘Dayhoff’ or ‘Dehoff’ does not undermine a finding of voter intent.” Id.  Since there was no evidence that Mrs. Dayhoff or any Dehoff was also running for the same elected position, the Court determined that the voters evinced the intent to vote for Candidate Dayhoff and that those misspelled or last name only votes should be counted.  The Commonwealth Court further counseled that “not to count these votes gives too much weight to a ‘technicality’ against which result our Supreme Court warned in Appeal of James.” Id. at 1012.
The Court would also like to note that the Elections Board did closely and manually review the write-in votes for Mr. Helfrich.  This review resulted in the rejection of several write-in votes that, had they been counted, would almost certainly been attributed to Mr. Helfrich.  For example, votes for CHAEHHELFRICH,[7] HELFRIGHT,[8] and MATT HELFRICH[9] were discarded.
Based on a review of the relevant case law, taking into consideration the unique concerns posed by write-in ballots that are typed into electronic voting machines, this Court finds that all the write-in votes counted for Mr. Helfrich were appropriately attributed to him and that one additional vote not counted clearly evinces that voters intent to vote for Mr. Helfrich and will therefore be counted in order to avoid disenfranchising those votes.
Conclusion
In conclusion, the Court will Order the Certification of the Results of the York County City Council Elections as counted during the December 12, 2011 recount with the addition of the vote for ”MCHEL HELFRICK” (45535 MRHMH
York city 11-0 331) to the total votes for Michael Helfrich.  An Order consistent
with this Opinion will be entered.
BY THE COURT,
 
 
 
__________________________________
Stephen P. Linebaugh, President Judge
 
Dated: __________________
 
 
 
 
 
 
 
 
ORDER CERTIFYING ELECTION RESULTS
AND NOW, this 19th day of December 2011, in accordance with the attached Opinion, IT IS ORDERED that:
The results for the York City Council election shall be CERTIFIED by the York County Board of Elections in accordance with the Opinion filed of even date with and as counted during the December 12, 2011 recount with the addition of the vote for ”MCHEL HELFRICK” (45535 MRHMH York city 11-0 331) be added to the total votes for Michael Helfrich.  .
Copies of this Order and Opinion shall be forwarded to counsel of record.
BY THE COURT,
__________________________________
Stephen P. Linebaugh, President Judge
 
 
 
 
 
 
 
 
 
 
 

[1] For example, “MICHAELHELFRICH” (45515 JZFJZ York City 5-0 65). Note that the parenthetical provides the location of the name in the Exhibit A of the Parties Joint Stipulation, filed December 15, 2011.

[2] For example, “HELFRICK” (45531 JHXHM York City 11-0 302).

[3] For example, was “MICAEL HELFRIVH” (45521 CCRTJ York City 8-0 197).  The “c” key is directly next to the “v” key on a computer keyboard, such as those used for the write-in votes.

[4] The Court received testimony about the difficulty faced by older voters using the new machines.

[5] “MCHEL HELFRICK” (45535 MRHMH York city 11-0 331).

[6] Indeed, the only other write-in candidate was named “Robert Brunner,” a name not similar at all to “Michael Helfrich.”

[7] (45559 XHRHJ York City 14-3 782).

[8] (4613 XMHZX York City 14-2 1004).

[9] (45515 JXHTH York City 5-0 64).

Pennsylvanias new law improves state's access reputation
MARK SCOLFORO The Associated Press
12/26/2008

HARRISBURG - It was a dubious distinction that may have done more than any other factor to produce a new Right-to-Know Law: Pennsylvania's long-standing reputation as one of the worst states when it comes to letting people know what their government is doing.

The quality of public access does not lend itself to a comprehensive state-by-state analysis, but there is broad consensus that Pennsylvania's new law, which takes effect next month, represents a major step forward.

Evaluating a state's access can involve an array of factors, including a state's laws, court rulings, government culture and real-life experiences.

"It's tough to make subjective calls, like 'This law is better than that law,'" said Charles Davis, executive director of the National Freedom of Information Coalition at the Missouri School of Journalism. "But there are certainly things that you can point to in the new law and say this is a hell of a lot better than the old law."

Those pushing for changes in recent years have often cited a 2002 study of certain aspects of public access by the Chicago-based Better Government Association that ranked Pennsylvania an abysmal 47th.

Pennsylvania moved up to 22nd place later that year when a revision of the Right-to-Know Law imposed new timelines for agencies to fulfill information requests and made other reforms. The
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most recent changes to the Pennsylvania Right-to-Know Law do not alter drastically the types of things the association measures, but that does not mean it's not a big improvement.

"Pennsylvania's score, in our study, isn't going to change," said Jay E. Stewart, the association's executive director. "That doesn't take away from the fact that it strikes me as a nice piece of legislation."

Mark Caramanica, interim director of the Citizen Access Project at the University of Florida, which also compares state laws, said Pennsylvania's new requirement for systematic training of government workers stands out.

"What we find in a lot of audits in the country is that the law may be good, but the agency officials - the custodians on the front lines that people deal with - aren't too knowledgeable about the law," he said.

Pennsylvania will finally shift the burden of proving whether a record should be produced from the requester to government agencies, Davis said, an aspect of the old statute that was a big reason why he took to calling the old statute "the Right-Not-to-Know Law."

By setting up an independent office to help resolve access disputes, Pennsylvania put itself within the vanguard of a national trend, Davis said. He also praised the selection of Terry Mutchler, formerly Illinois' open-records counselor, as executive director of Pennsylvania's new Office of Open Records.

"The way Pennsylvania went about it is, I think, one of the best ways to go about it," he said.

In February, after a key House vote on the open records bill, state Rep. Josh Shapiro, D-Montgomery, called the new law "one of the best, if not the best" in the nation.

Davis isn't willing to go that far. He believes Florida's law, which defines public records very broadly, probably still holds that title. But Pennsylvania has undoubtedly made strides.

"Right after Florida you have a host of states which, I think, have fine public records laws, and Pennsylvania is among them as of Jan. 1," Davis said. "Pennsylvania joins the front of the pack, I think I'll say that much."

There are critics of the new law, particularly the provision that allows access to only a list of specific legislative records, generally those having to do with finances or the official proceedings of committee meetings and floor sessions.

"There's still no really good justification for putting all the exclusions in for the Legislature," said Barry Kauffman, executive director of Common Cause of Pennsylvania.

He said some of the penalties for violating the law are weak and timelines for fulfilling requests can be improved. Common Cause would have preferred to establish the Office of Open Records outside the executive branch, rather than within the Department of Community and Economic Development.

"I feel confident we're probably in the top half of the states, but we still have work to do," Kauffman said. Tim Potts, with the government reform advocacy group Democracy Rising PA, also sees the penalties as inadequate.

"The penalty provisions are puny when they should be punitive," he said. "You have to have penalty provisions that are sufficient to alter behavior, and these penalties are laughable."

Potts said allowing the legislative and judicial branches to establish their own open records processes represents "a conspicuous conflict of interest. And we have plenty of experience in how the Legislature protects itself at the expense of its citizens."

Any complete analysis of how far the state has progressed will have to wait until Pennsylvania's new law has been in effect for some time, tested by the public and interpreted by the courts.

"I think this new law is a significant step toward greater access in Pennsylvania," said Pennsylvania Newspaper Association general counsel Teri Henning. "It's hard to quantify at this point, but it's certainly an improvement and a significant one."