Shambach v. Bickhart

• Decision Date: 26 March 2004
• Citation: 845 A.2d 793,577 Pa. 384
• Parties: Gregory L. SHAMBACH, Petitioner/Appellant, v. Richard W. BICKHART, Respondent/Appellee. In re Pennsylvania General Election for Snyder County Commissioner, November 4, 2003. Appeal of Gregory L. Shambach of Recount and Certification of Election Returns.
• Court: Pennsylvania Supreme Court

845 A.2d 793

577 Pa. 384

Gregory L. SHAMBACH, Petitioner/Appellant, v. Richard W. BICKHART, Respondent/Appellee.

In re Pennsylvania General Election for Snyder County Commissioner, November 4, 2003.

Appeal of Gregory L. Shambach of Recount and Certification of Election Returns.

Supreme Court of Pennsylvania.

Submitted February 17, 2004.

Decided March 26, 2004.

Michael V. Brown, for Gregory L. Shambach.

Monna Accurti, for Bureau of Elections.

Thomas C. Clark, Middleburg, for Richard W. Bickhart.

Before CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.

OPINION OF THE COURT

Justice NIGRO.

Appellant Gregory L. Shambach appeals from the Commonwealth Court's order declaring Appellee Richard W. Bickhart the winner of the third County Commissioner seat on the Snyder County Board of Commissioners based on its inclusion of ten write-in votes cast on Bickhart's behalf in the final tally. For the reasons that follow, we affirm.

Shambach and Bickhart along with two other persons, Rick Bailey and Steven Bilger, were formally listed on the ballot as candidates for three Snyder County Commissioner positions in the November 4, 2003 general election.¹ After the election returns were counted and tallied, the Snyder County Return Board ("Board") determined that Bailey and Bilger had won two of the County Commissioner positions, but that the winner of the third position remained undecided as Shambach and Bickhart had both come in third in the election, receiving 2,484 votes each. As a result of the tie, the Board ordered a recount. Following the recount, on November 18, 2003, the Board determined that Shambach had received 2,493 votes, and Bickhart had received 2,500 votes, and accordingly, certified Bickhart as the winner of the third position.²

The next day, Shambach appealed from the Board's decision to the trial court pursuant to Section 1407 of the Election Code, 25 P.S. §§ 2600—3591.³ Among other complaints, Shambach objected to the Board's inclusion of ten ballots containing write-in votes for Bickhart in the final tally. Shambach argued that these ten votes were invalid because a voter may not write in the name of a person who is already listed as a candidate on a ballot pursuant to Section 1112 A(b)(3) of the Election Code, which provides as follows:

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 [other] 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).⁴ Shambach also argued that write-in ballots for listed candidates were invalid under Optical Scan Standard 14, which was part of a general "Notice" published by the Pennsylvania Department of State in the August 2, 2003 Pennsylvania Bulletin (the "Notice").⁵ Following a hearing, the trial court entered an order on November 24, 2003, striking the ten write-in votes for Bickhart.⁶ After deciding additional objections raised by Bickhart, the trial court determined that the final tally was 2,491 votes for Shambach and 2,490 votes for Bickhart, and thus declared Shambach the winner of the third County Commissioner position. On December 15, 2003, the trial court issued an opinion, explaining initially that it found that the ten write-in votes had been clearly cast for Bickhart.⁷ Nevertheless, the trial court determined that the ten votes were invalid based on Optical Scan Standard 14, which was a binding administrative rule.⁸ The trial court found that it was obliged to abide by Optical Scan Standard 14 even though, in its view, "the Standard is contrary to the case law of this Commonwealth by having the possible effect of not counting a ballot from which the voter's intent could clearly be discerned." Slip op. at 5; see also N.T., 11/24/03, at 17-18.

Bickhart appealed from the trial court's order to the Commonwealth Court, which issued a per curiam order on December 18, 2003, reversing the trial court's decision to the extent that it struck the ten write-in votes for Bickhart and stating that "the final count for the vote for commissioner as it relates to Greg L. Shambach and Richard W. Bickhart is 2,491 for Mr. Shambach and 2,500 for Mr. Bickhart." On December 24, 2003, the Commonwealth Court filed an opinion explaining its order. The Commonwealth Court initially held that the trial court improperly found that Optical Scan Standard 14 was binding upon it when the standard was merely published as a statement of policy, rather than as a regulation with the force and effect of law.⁹See In re: Pennsylvania General Election for Snyder County Commissioner, 841 A.2d 593, 595 (Pa. Commw.2004). Nevertheless, the Commonwealth Court found that Section 1112-A(b)(3) of the Election Code, which tracked the language of Optical Scan Standard 14, was binding law and thus, the write-in votes could be invalid if Section 1112-A(b)(3) required that result. See id.

In deciding this question, the Commonwealth Court looked to this Court's decision in Appeal of James, 377 Pa. 405, 105 A.2d 64 (1954), where we found that a section of the Election Code containing language very similar to that at issue in Section 1112-A(b)(3) must be liberally construed in favor of a voter's right to vote. See In re: Pennsylvania General Election for Snyder County Commissioner, 841 A.2d at 595. The Commonwealth Court noted that this liberal construction led the Court in James to conclude that the section at issue permitted write-in votes to be cast for candidates already listed on the ballot if: (1) the voter had not attempted to fraudulently cast the vote; and (2) the voter's intent was clear. See id. Citing to the principle of statutory construction that where this Court has interpreted a statute in one way, the General Assembly is presumed to intend the same construction to be placed upon such language in other statutory provisions, see 1 Pa.C.S. § 1922(4), the Commonwealth Court then found that Section 1112 A(b)(3), like the statute at issue in Appeal of James, must be construed to mean that "a voter may not cast a write-in vote for persons whose names are printed on the ballot, except where there is no indication of fraud, i.e., double voting, and the intent of the voter is clear." In re: Pennsylvania General Election for Snyder County Commissioner, 841 A.2d at 597. The Commonwealth Court therefore applied this test in the instant case and found both that the voters who wrote in Bickhart's name on the ballot clearly intended to vote for him and that there was no sign of fraud involved with those ballots. See id.¹⁰ Thus, the court ultimately held that the ten write-in votes cast for Bickhart must be counted in his favor. See id.

Judge Leavitt dissented from the Commonwealth Court majority's decision, reasoning that a court must find that a ballot was validly cast before attempting to ascertain a voter's intent. See id. Thus, finding that the ten write-in votes were not validly cast pursuant to Section 1112-A(b)(3), Judge Leavitt held that the majority erred in counting the ballots merely because the voters' intentions were clear. See id. at 598.

Thereafter, Shambach filed a petition for allowance of appeal as well as a request for a stay of the Commonwealth Court's order with this Court.¹¹ We granted Shambach's request for a stay on December 31, 2003, and subsequently entered an order granting allocatur on February 17, 2004.

Echoing Judge Leavitt's dissent, Shambach initially argues that our case law requires that a court first ascertain whether a ballot was validly cast before attempting to discern the voter's intent. Shambach therefore contends that because the ten write-in ballots were improperly cast pursuant to Section 1112 A(b)(3) of the Election Code, they were invalid regardless of whether the voters' intentions were clear and the ballots were free from fraud. Shambach further argues that the Commonwealth Court erred in finding that Section 1112-A(b)(3) was similar to the statute at issue in Appeal of James because that statute involved paper ballots and Section 1112-A(b)(3) concerns voting systems that use automatic tabulating equipment, such as the optical scanning system used here. According to Shambach, Section 1112-A(b)(3) is more akin to Section 1216(e), which bars the inclusion of write-in votes for candidates already listed on a voting machine and which this Court upheld as a reasonable restriction in Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975). In fact, Shambach contends that Section 1112-A(b)(3) must be interpreted as barring write-in votes based on our decision in Appeal of Yerger because the reasons we found for upholding the restriction there, namely, preserving the efficiency of the voting machines and protecting against double voting, are also present with regard to the optical scanning system used here.¹² We disagree.

There is a "longstanding and overriding policy in this Commonwealth to protect the elective franchise." Petition of Cioppa, 533 Pa. 564, 626 A.2d 146, 148 (1993); see also In re: Weiskerger Appeal, 447 Pa. 418, 290 A.2d 108, 109 (1972) ("Our goal must be to enfranchise and not to disenfranchise."). Thus, although election laws must be strictly construed to prevent fraud, they "ordinarily will be construed liberally in favor of the right to vote." Appeal of James, 105 A.2d at 65 (quoting 29 C.J.S., Elections, § 7, p. 27); see also In re: Nomination Petition of Johnson, 509 Pa. 347, 502 A.2d 142, 146 (1985); In re: ...