Chapter 4 Neither ballot in contest here bears improper marks and both clearly designate the voter’s intention to favor contestant. At 1336. There was a dissent in the case in which one justice, with the concurrence of another justice, would have allowed the ballot with the cross-out and the X to be counted but not the ballot with the squiggly mark in the box. The latter was said to “completely distort the intention of the voter.” It is not clear what the justice meant by that remark. In any event, if the dissent would have prevailed and added one vote to Mr. Boevers’ total, the vote would have ended in a tie between Mr. Boevers and Mr. Kremeier. Nor were smudges or extraneous marks enough to void the ballots in In re Second Ward, Second Precinct of Borough of Canonsburg, 290 A.2d 69 (Pa. 1972). There, two ballots for council candidate Jack Passante that had been disallowed by a lower court were allowed by the Pennsylvania Supreme Court despite the arguments of Francis J. Buckley, Jr., his opponent. A state statute said that any ballot with an erasure was void as to the office for which the erasure appears (the votes on the rest of the ballot would be counted). But what Mr. Buckley called an erasure the Pennsylvania Supreme Court called a “smudge which is barely visible to the naked eye” and concluded that “it is not reasonably certain the smudge was caused by an erasure.” At 71. Another state statute disallowed ballots that were marked with two separate writing instruments. Mr. Buckley pointed to a ballot that had been marked for Mr. Passante in pencil, as it should have been, but also had what the supreme court called “a single very light semicircular line made with ink in the box opposite Buckley’s name” and “some small scratch marks made with ink on the ballot above the candidates’ names running for the councilmanic seats.” At 71. Mr. Buckley said that this voter was either trying to vote for more candidates than were allowed in that election or made marks with both a pencil and a pen, either of which would disallow the ballot. The supreme court concluded, however, that, This position is founded on a faulty premise, namely, that the voter placed the ink marks on the ballot. Everything indicates the contrary. The voter who cast this ballot voted for a total of eleven candidates. In each instance, an X marked in pencil was properly placed in the box opposite the candidates’ names. To conclude the voter then used an ink pen to make the extraneous marks is too speculative, especially since the marks themselves indicate they were made with an old fashioned ink writing pen, rather than with some modern writing instrument. At 72 (emphasis supplied). Although we do not know from the supreme court’s opinion how many votes the candidates got in In re Second Ward,83 we do know the outcome of the race for mayor of the City of Salem, Indiana, in 1985, but it was not easily determined. After the election, John D. Fultz led Frank D. Newkirk, Sr., by five votes: 1,218 to 1,213. After a recount, they were tied with 1,205 votes. Both of them presented their case in court where, after making determinations on many contested ballots, the court concluded that Mr. Fultz lost to Mr. Newkirk by 19 votes: 1,091 to 1,072. Mr. Fultz appealed. The mention of this case, Fultz v. Newkirk, 475 N.E.2d 706 (Ind. 1985), earlier in this chapter noted that the Indiana Court of Appeals affirmed the trial court’s decision that none of the absentee ballots in three precincts should be counted because they were not initialed by the poll clerks as required by a state statute. 83 The Pennsylvania Supreme Court said that “an extremely close contest developed between Buckley and Passante…,” at 70. It added, in a footnote, that it cannot be ascertained from the briefs or the record filed with the Supreme Court whether the counting of the ballots will change the result of the election. 99