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This Warwick school board seat hinges on 139 write-in votes. Should they be counted?

The winner of a Warwick school board seat remains uncertain as a write-in candidate is asking the Commonwealth Court to order Lancaster County to review 139 ballots that the candidate argues were improperly excluded from her tally.

Emily Zimmerman received more than 3,000 write-in votes on Election Day. As was the case for a number of write-in candidates in races across the county, Zimmerman had to formally ask the Court of Common Pleas to count misspellings of her name toward her overall tally.

Judge Dennis Reinaker approved 1,158 misspellings or incomplete spellings of her name to be added to her vote count, but he disallowed 139 votes that appeared as “Emily Zimmer” in the eyes of the software used to count votes in the county. Without those votes, Zimmerman is 92 votes short of unseating the current school board president, Republican Michael Landis.

Zimmerman’s case reveals how the software’s programming could cost a write-in candidate votes that were intended for them, and it raises questions about whether county elections staff and Judge Reinaker are following the election code to a fault in not counting the "Zimmer" votes in the first place.

"To say that we are disappointed is probably an understatement," Zimmerman said of Reinaker’s decision. "The biggest thing for our team is that those votes represent people in our community whose voice is now being silenced. They weren’t misspelled, they were simply cut off (by the county’s election software)."

Differing methods

Each county in Pennsylvania administers its elections differently, with counties using a combination of more than a dozen certified election systems and scanners to accurately count their votes. There are only two other Pennsylvania counties that use the same voting system as Lancaster -- though they take different approaches to write-in votes.

Lancaster County uses the Hart InterCivic Verity system for its elections. Voters can check or fill a box next to an official candidate’s name, or choose to write in the name of an unofficial candidate. Ballots printed for Lancaster County voters include an approximately 3-inch-long line for write-ins; the voter must check or fill a square box to the left of the line, then write the name.

To tally votes, ballots are scanned, either by high-speed scanners at the county elections office, or by individual machines at polling stations. The scanners capture an image of each ballot. When a write-in vote is detected, the scanner superimposes a box around the area on the ballot where voters write in a candidate’s name – effectively cropping the image in such a way that any writing that extends beyond the line is cut off.

As a result, when county elections staff review each image taken of a write-in vote, they are only able to see what the software outlined. Long names like "Zimmerman" can be cut off and appear as "Zimmer" or other variations if the voter writes past the write-in line into the blank space to the right of it.

write in counting

Melissa Shaffer, clerical specialist at Lancaster County Office of Voter Registration, counts write-in votes for Warwick school board inside the county offices at 150 N. Queen St. in Lancaster city Friday, Nov. 5, 2021. This photo shows the invisible "box" the Hart software superimposes around a write-in entry. In this instance, the program only shows "Zimmerma," with a small marking following it, which could be assumed to be an "n."

melissa shaffer

Melissa Shaffer, a county elections board clerical specialist, processes write-in votes on Nov. 5, 2021. This photo shows another instance where Emily Zimmerman's name was potentially cut off at "Emily Zimmerma." Judge Dennis Reinaker allowed Zimmerman to collect 1,158 potential misspellings or incomplete spellings of her name in a Nov. 16 hearing.

Zimmerman and her attorney, Eric Winter, argue that if elections staff and Judge Reinaker were to examine the actual ballots in the Warwick race, they’d see that the election software cut off her name at the end of the write-in line and that the 139 votes in question were intended for Zimmerman.

Reinaker could have allowed those votes to be counted for Zimmerman, but decided to reject them on the basis that "Zimmer" could be someone else’s name, he told LNP|LancasterOnline last week. He also denied Winter’s motion asking the judge to reconsider his decision and view the actual ballots.

Limited guidance

Reinaker said last week there is very little precedent or guidance for judges to make these calls at these already rare hearings, since write-in candidates are often not successful in general elections.

At the same hearing on Nov. 16, Reinaker approved 613 misspellings or incomplete spellings for Manheim Central school board write-in candidate Jennifer Walker, who ended up winning her election after adding those votes to her vote total.

Reinaker said last week he tries to “promote some consistency in the process” so candidates know they are being treated fairly. He said he will usually approve a name if there is an additional identifier -- like if someone wrote "Zimmerm" -- that shows they intended to vote for a specific candidate. Reinaker also said he rarely approves motions for reconsideration, and said Winter should have voiced his concern about his ruling during the hearing.

"I try to give the benefit of the doubt to the candidate," he said last week.

Reinaker Order for Zimmerman on Nov. 16 by Gillian on Scribd

"It’s easy to think when you see this petition that every iteration was meant to be for the candidate and I just don't think that’s accurate," he added.

Although Reinaker did not accept the 139 votes for "Emily Zimmer," he accepted several votes for "Emily Zimme" or "Emily Zimm," according to his ruling.

Different interpretations

Christa Miller, the county’s chief elections clerk and registrar, said her staff can only record what can be seen on the ballot images captured by the Hart Verity system, exactly as it’s written.

But elections officials in the two other counties that use the Hart system – Fulton and Delaware – said they will go back into the system or to the paper ballots to review them and see what the voter wrote, even if the voter’s writing extended beyond the end of the write-in line.

Fulton County first used the Hart InterCivic system in the November election. While conducting pre-election testing, Patty Hess, Fulton’s director of elections, said her staff observed that long names could be cut off by the Hart write-in program. Her small county saw only 3,000 voters participate in the November election, making it easy for Hess’s staff to revisit the paper ballots with write-in votes that were cut off by the Hart scanning software.

Delaware County’s director of election operations, Jim Allen, said in an email that this is not an issue because his office’s procedure is to review any ballots where the software may have cut off a voter’s write-in entry.

Like Miller in Lancaster County, Hess said she planned to bring up this write-in issue with Hart.

Violation of voters’ rights?

Zimmerman’s situation is one where multiple levels of government fell short, experts said.

Since the county was aware of the system’s limitation where it could cut off names, elections staff should have looked at the "Emily Zimmer" ballots on their own to confirm each voter’s intent, said Michael Dimino, an election law expert and law professor at Widener University’s law school.

According to the state election code, elections staff are required to "record any such names exactly as they were written or stamped."

There is nothing that prevents a county elections board from revisiting the actual ballots, wrote Wanda Murren, a spokesperson for the Department of State, in an email.

"It's unclear to me why we wouldn't take every possible step to try to determine a voter’s intent, especially in a local election where every vote matters," said Patrick Christmas, the policy director at Philadelphia-based good government advocacy organization Committee of Seventy. 

But it’s Lancaster County practice to only revisit the paper ballots as the election code requires: as part of the state’s risk-limiting audit following an election, when ordered by a judge, or when a recount is requested, said Lancaster County Commissioner Ray D’Agostino, who chairs the county’s election board.

"It can be done and will be done in the way that ensures integrity in the system and the process," D’Agostino said.

D’Agostino said he would not comment on how other counties review write-in votes, but said it could be seen as potentially problematic if elections staff could pull paper ballots at any time they want.

"There has to be a policy and a process," he said. "We’re relying on a system that has integrity. The Hart system has a lot of integrity features. It’s not that we won’t (go back and review the paper ballots). It can be done, but that process leads to the integrity of the system."

'A questionable basis’

Reinaker’s decision to reject this spelling of her name -- and his denial to look at the actual ballots as Winter and Zimmerman requested in a motion after his initial Nov. 16 decision -- "rests on a questionable basis," Dimino said.

"Merely speculating that it could be someone else’s name should not be sufficient, especially if there wasn’t any other Emily Zimmer (registered)," he said.

The Lancaster County Board of Elections confirmed that there was only one Emily Zimmerman registered in the district, and no “Emily Zimmer.” The next-closest name was someone named Emily Ziegler, who was not a declared write-in candidate for any race on the Nov. 2 ballot, according to Miller.

According to Dimino, the voters whose write-ins were not counted could potentially sue the county for infringing on their voting rights.

Winter filed an appeal to the Commonwealth Court on Monday. It was received by the county's prothonotary on Wednesday.

"We need to walk this out completely to ensure that all the people who voted for someone who was not on the ballot -- that was a conscientious choice that people made," Zimmerman said about her appeal. "We need to honor that and see that through to the end.”

Warwick school board President Michael Landis — Zimmerman’s opponent — declined to comment on the case, but said in an email it’s "an honor and privilege to serve the community and give back to the Warwick School District in my role as a School Board member."

Landis did not reply to an inquiry about whether he would be seated in this spot by the time the board holds its reorganization meeting in December, or if it will remain empty until Zimmerman’s challenge is resolved.

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