# Shambach v. Bickhart > Supreme Court of Pennsylvania · March 26, 2004 · 577 Pa. 384 URL: https://www.frixlaw.com/law-library/cases/9692234 ## Case - **Full name:** 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:** Supreme Court of Pennsylvania - **Decided:** March 26, 2004 - **Citations:** 577 Pa. 384; 845 A.2d 793; 2004 Pa. LEXIS 659 - **Precedential status:** Published - **Opinion:** Concurrence by Newman - **Judges:** Cappy, Castille, Nigro, Newman, Saylor, Eakin, Baer - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9692234 ## How later opinions describe it (automated extraction) - finding the Election Code’s provision that an elector may write in the name of a person not already on the ballot was directory; therefore, write-in votes for a person already on the ballot should be counted – particularly as the Election Code did not specify that such votes s… - explaining that stare decisis has "special force" in matters of statutory, as opposed to constitutional, construction (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989)) - declining to invalidate a write-in vote cast for a candidate who was named on the ballot proper, observing that ballots containing mere minor irregularities should only be stricken for compelling reasons ## Opinion text Justice NEWMAN, Concurring. I join the majority opinion. I write separately simply to highlight an important distinction that I perceive between Appeal of James, 377 Pa. 405 , 105 A.2d 64 (1954), and Appeal of Yerger, 460 Pa. 537 , 333 A.2d 902 (1975). In James, eight candidates, four Republicans and four Democrats, were on the general election ballot for four positions on the Council of the Borough of Whitaker. Two of the nominated Democrats, including Samuel A. James (James), joined with two other independent candidates (who were not on the ballot) *400 and prepared stickers bearing their four names, with an X pre-printed next to each name to indicate a vote for each of the four individuals. The applicable statute provided that the paper ballot for the office should have four blank spaces for write-in candidates. Theodore Rushe (Rushe), one of the Republican candidates who trailed James by approximately one hundred votes for the fourth spot, challenged 151 ballots on which voters had affixed the sticker, indicating a write-in vote for James. Rushe cited Section 1003(e) of the Election Code, which provides in relevant part as follows: There shall also be left at the end of each group of candidates for each other office (or under the title of the office itself in case no candidates have been nominated therefor), as many blank spaces as there are persons to be voted for for such office, in which space the elector may insert the name of any person or persons whose name is not printed on the ballot as a candidate for such office. 25 P.S. § 2963(e) (emphasis added). This Court “observed that although James’ name is reproduced twice on the ballot, he received only one vote. On what possible theory can he be denied that one X, which was the honest expression of the citizen desiring to vote for him?” James, 105 A.2d at 65 . We explained that “[t]o look at the ballot ... and say that James is not entitled to the vote so transparently cast for him is to negate the whole genius of our electoral machinery.” Id. at 66. Because no fraud was involved, the will of the voters who affixed a sticker to vote for James was clear, and the voters had not attempted to vote for James twice, the Court held that “it would be a stultification of the very principle of democracy behind the Election Code to deprive [James] of election simply on the basis that the [Election] Code does not ipsissmis verbis [loosely, explicitly] provide for the instant manner in the. ascertainment of the voter’s intent.” Id. at 66-67. In Yerger, a voting machine case decided twenty years after James, in which William Yerger (Yerger) and Norman Fredrick (Fredrick) ran for the single office of Jackson Township Tax Collector. Yerger was declared the victor by a two-vote margin, but Frederick appealed, contending that eight write-in *401 votes cast for him were improperly discarded. Fredrick cited to James for the proposition that write-in votes clearly cast for a candidate whose name already appears on the ballot are valid absent fraud and that to hold otherwise would violate the uniformity clause of the Constitution. Yerger relied on the plain language of Section 1216(e) of the Election Code, which provides in relevant part that: A voter may ... vote for any person for any office, for which office his name does not appear upon the voting machine as a candidate, by an irregular ballot containing the name of such person deposited, written or affixed in or upon the appropriate receptacle or device provided in or on the machine for that purpose, and in no other manner.... [N]o irregular ballot shall be cast on a voting machine for any person for any office, whose name appears on the machine as a candidate for that office, and any ballot so cast shall be void and not counted. 25 P.S. 3056(e) (emphasis added). This Court refused to count the eight ballots in favor of Frederick, concluding that the uniformity clause did not require courts to treat paper ballots and voting machine ballots alike. We distinguished James, which dealt with paper ballots as follows: It is easy to find such a basis for the difference in treatment of write-in votes on paper ballots and machines. Allowing write-in votes for those appearing on the machine would increase the time and effort required to count the votes. By ignoring the speedy and efficient means of voting for such candidates provided by the regular operation of the machine, the voter casting an irregular vote would, to that extent, defeat the very purpose of using voting machines. When dealing with a comprehensive and carefully drawn legislative scheme for the conduct of elections, we must take care not to consider the particular elements of the scheme without regard to their place in the entire structure. Otherwise, the legislative plan may be frustrated by deviations, each seemingly reasonable in itself but destructive of the carefully designed structure. *402 Yerger, 333 A.2d at 906 . Our predecessors noted that, theoretically, a voter could manipulate the voting machine in a manner such that he or she would be able to vote twice for one position. 1 To protect against that possibility, the voting machines were equipped with a locking mechanism whereby the act of raising the write-in lever eliminated the option of voting for a pre-printed candidate. However, the Court believed that by forbidding write-in votes for candidates whose names already appeared on the ballot, the legislature had “erected a considerable safeguard against the failure of the locking mechanism.” Id. This Court held that precautions against double voting “are unnecessary when dealing with paper ballots, because it is easily determined if any ballot contains more votes for a given office than” the number permitted. Id. In effect, Yerger says that where allowing a write-in vote for a candidate already on the ballot could lead to double voting that is not easily uncovered, the Election Code provisions voiding ballots so marked should be strictly followed. Yerger contrasts James and paper ballots in general by explaining that paper ballots allow for an easy determination of whether a ballot contains more votes for a given office than there are persons to be elected. While not made entirely clear from the Opinion of this Court in Yerger, it appears that, if the locking mechanism failed, it would be difficult to recreate the ballot to ascertain whether the voter double voted. The present situation is more akin to James than Yerger. In James, each elector was entitled to vote for four persons, so when inspecting each paper ballot, inter alia, the vote tabulators had to ensure that: (1) the voter cast no more than four votes; and (2) the voter did not cast more than one vote for any person, whether by marking a pre-printed name or inserting a name in the write-in section. In the case sub judice, the optical scanner could establish the number of votes cast for any position and indicate whether each vote was for a pre-printed candidate or a write-in, which would have to be *403 inspected by hand regardless because the scanner cannot read write-in votes. Thus, the vote tabulators would need to inspect only those ballots where a voter voted for a write-in candidate. Upon inspection of the ballot or the generated printout thereof, the vote tabulator would ensure that: (1) the voter cast no more than two votes; and (2) the voter did not cast more than one vote for any person. I believe that the crucial distinction between James and Yerger is that in Yerger there was a possibility that the voter could engage in fraud or attempt to vote twice for the same candidate in such a way that it would not be obvious to the vote tabulator. In James, where every ballot was manually inspected, it would be readily apparent to the vote counters whether any individual voter engaged in fraud or attempted to double vote. Likewise, in the present case, because the vote tabulators would review every ballot with a write-in indication to ascertain whose name(s) had been written-in, the concern over systematic and undiscoverable fraud and/or double voting was not present. Accordingly, the concerns articulated in Yerger are not implicated here and, thus, I would abide by the rule we announced in James. “[T]he power to throw out a ballot for minor irregularities should be sparingly used. It should be done only for very compelling reasons.” In Re Petitions to Open Ballot Boxes, 410 Pa. 62 , 188 A.2d 254, 256 (1963). “Marking a ballot in voting is a matter not of precision engineering but of an unmistakable registration of the voter’s will in substantial conformity to statutory requirements.” Appeal of Gallagher, 351 Pa. 451 , 41 A.2d 630, 632 (1945). In construing election laws while we must strictly enforce all provisions to prevent fraud our overriding concern at all times must be to be flexible in order to favor the right to vote. Our goal must be to enfranchise and not to disenfranchise. In Re General Election, November 6, 1971, 449 Pa. 386 , 296 A.2d 782, 784 (1972). With these lodestar principles in mind, it is clear that the invalidation of a vote is a last resort. In Yerger, this Court invalidated to ensure the efficiency and integrity of the elective process. Those concerns are not here manifest and, *404 therefore, the ten votes cast for Bickhart as a write-in candidate should be counted, because there is no indication of fraud, Bickharts pre-printed name was not marked, and only one vote for Bickhart was denoted; the intention of the voter on each ballot is plain and unambiguous. . The voter could raise the write-in lever, cast a write-in vote, and then lower the write-in lever to permit voting for a pre-printed candidate for that office, which would register two votes for the same position. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9692234. Public record. Not legal advice.