Local attorney Neil O’Donnell filed an emergency petition today on behalf of Wilkes-Barre Mayor George C. Brown attempting to force the county’s Election Board to tally all Republican write-in votes in that race, regardless of whether the oval next to the write-in box was shaded.
Based on legal advice, the county election board had taken the position that voters must both shade in the oval and write a name for a write-in to be accepted.
Brown is hopeful he will have enough write-in votes to receive the Republican nomination. Brown secured the Democratic nomination with 2,396 votes and had no opposition.
On the Republican side, Harry L. Cropp III appeared on the ballot with no Republican opposition and secured 453 votes, according to the unofficial results.
The county reported a total 363 write-in Republican votes in that race, but representatives of Brown’s campaign said this number only covers those with the shaded ovals.
The county Court of Common Pleas has scheduled a hearing on the petition at 11 a.m. Thursday.
Brown’s petition also seeks a court order for the board to accept all write-in votes for Brown written as George Brown, G. Brown, G.C. Brown, Mayor Brown, Brown or “any other derivative that indicates the voter’s intent to vote for the incumbent mayor of Wilkes-Barre,” George C. Brown. This process is known as cumulating.
The petition was filed by Attorneys Neil T. O’Donnell and Gerard W. Gaughan, of O’Donnell Law Offices in Kingston.
“The policy of refusing to count write-in votes without darkened ovals is inconsistent with the law and disenfranchises Luzerne County voters,” the filing said.
According to the court petition:
The purpose of the shaded oval is “merely to enable the electronic scanner” to print out a report of how many write-in votes were cast.
“While the darkened ovals are used for convenience to tabulate ballots for candidates whose names appear on the ballot, that is not the function of the ovals in the cases of write-ins,” it said.
Because write-in votes in the May 16 primary were written by hand on paper ballots, they cannot be tabulated by a scanner and must be read and counted by hand. However, the county election board is following a procedure that write-in votes will only be counted if the oval is shaded.
Legal counsel for Brown appeared at the board’s May 20 adjudication asking the board to accept write-ins without shaded ovals.
“In response, petitioner was informed the board did not have any discretion to deviate from this policy, and that Mayor Brown ‘would need to petition the court.’”
Prior to March 26, 2020, state law would have required voters to both mark the write-in selection and name of the candidate in jurisdictions with electronic voting systems that use paper ballots to register the votes, the petition said.
However, the law was amended after that date to eliminate the requirement that a voter “mark” a write-in candidate, specifying that voters can “indicate” their intent to select a write-in by inserting the name of the person.
Voters showed this indication when they expressly declined to select a named candidate on the ballot and instead wrote in the name of their choice, it said.
“Even though the plain language of the Election Code reveals that voters no longer need to ‘mark’ their intention to vote for a write-in candidate, the election board incorrectly maintains that ‘the guidance provided to the board requires the oval on the ballot to be colored for a write-in vote,’” it said.
It added the election code is typically “construed liberally in favor of the right to vote.”
The court ruling in Brown’s case could have an impact on other local races in which Republican and Democratic nominations are based on write-in votes.