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No ruling on write-in votes in Pa. primary

June 23, 2006|by DON AINES

CHAMBERSBURG, PA.

New questions were raised and one big question was left unanswered Thursday at the Franklin County Election Board cumulation hearings for Todd Rock and Patrick E. Fleagle - which Republican will be the Democratic nominee for the 90th District seat to the Pennsylvania House of Representatives.

One question raised was whether a recount of eight precincts requested by Rock supporters would be legal.

"We intend to use common sense. We are neither judges or attorneys," said County Commissioner G. Warren Elliott, who, with fellow commissioners Bob Thomas and Cheryl Plummer, constitute the election board. "Our intent ... is to count as many votes as possible" to avoid disenfranchising voters, he said.

No decision was made after the board heard testimony and arguments by Fleagle, his attorney and an attorney for Rock. Rock did not attend the hearing.

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The board has 30 days to decide which write-in votes from the May 16 primary will be credited to each candidate's total. Elliott said the board does not intend to take that long, but gave both sides a week to submit more written evidence.

Rock, 42, of Mont Alto, Pa., won the GOP nomination over Fleagle, a nine-term incumbent, by 111 votes, but both Republicans also received write-in votes in the Democratic primary, where no candidate filed to run. Fleagle asked for variations and misspellings of his name totaling 339 votes to be consolidated, while Rock petitioned the board to count 337 votes for him.

Representing Fleagle, attorney Marcus Lemon cited case law that votes should be counted - even if misspelled - if the voters' intent is clear, and that the power to throw out votes must be used sparingly.

Lemon questioned Fleagle about some misspellings of his name and whether there are any registered voters named "Flengle," "Pete Fleagle" or "Pate Fegle" in the 90th District. Fleagle said there were not.

Lemon then asked about a vote for David Rock that Todd Rock is seeking to consolidate. Fleagle said David Rock, a relative of Todd Rock, is the Pennsylvania Department of Transportation supervisor for the county.

Attorney Clinton Barkdoll, representing Rock, countered by asking if there are any public officials named "Fleagle" or "Flegel" in the district. Fleagle, 55, of Waynesboro, Pa., said Ron Flegel is Waynesboro's fire chief and John Fleagle is the fire chief in Blue Ridge Summit, Pa.

Barkdoll said some of the votes, such as Pate Fegle, are "problematic," and votes where there only is a misspelled last name, such as Flengle, "are far enough afield they should be dismissed."

During Rock's hearing, Barkdoll pointed to discrepancies in precinct tally sheets. In Mercersburg, Pa., he noted, one tally sheet has 13 hash marks, but credits Fleagle with 14 votes. There are four tally sheets for the precinct, however, and the number of hash marks and votes on some others matched, according to county records.

Barkdoll also noted what he called "hybrid votes," in which Rock or Fleagle were written in for the 9th District to the U.S. House of Representatives, but the votes were credited to each candidate for the state House race. He said there are about eight such votes for Fleagle to three for Rock, but questioned whether Rock received credit for all of his.

"I think if the hybrid votes are thrown out, there are scenarios where Rock would be ahead by three or four votes," Barkdoll said after the hearings.

"The board should count every vote cast where the intent can be discerned," Lemon said afterward. "They clearly should be counted for both candidates."

As to the recount requested by Republican supporters of Rock, Lemon said members of one political party have no legal standing to challenge the outcome of another party's primary. Any challenge to Democratic primary results should have been filed by registered Democrats, he said.

The recount request, which falls under the jurisdiction of the Court of Common Pleas, is on hold pending the outcome of the Election Board proceedings.

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