Chapter 4 CHAPTER 4 Fraud Invalidates the Ballot, but the Will of the Voter Will Still be Respected In Chapter 3, the will of the electorate emerged as a controlling concept in determining whether a statute is mandatory and must be followed, or whether the statute is directory and need not be followed unless doing so would change the result of the election. In most instances, when the election was over, any irregularities involved in an election challenge were ruled to be directory because technical violations of the law should not defeat the will of the electorate. Determining the will of the electorate turned out to be a protracted process that required the courts to take several steps before reaching their conclusions. The courts sifted through the facts to determine whether the people who cast the ballots in question were eligible voters, whether they were registered to vote, and whether the tasks that the election officials had failed to perform were crucial to having an honest election. Most often, the court’s conclusion was to count ballots that had been challenged. Fraud changes everything. A. Fraudulent votes cannot be included when determining the will of the electorate. There are many famous quotations from courts declaring that elections and voting are the foundation of democracy. If fraud occurs in an election, that foundation (to continue the metaphor) is rotten and the edifice will crumble. For example, take the statement of the United States Supreme Court in Wesberry v. Saunders, 376 U.S. 1 (1964), which is set out in the Introduction: No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. That is why, in the preceding chapter, whenever a court decided that a statutory requirement was directory and that technical requirements could not defeat the will of the electorate, the court always noted that the case did not involve fraud. Fraudulent votes are invalid and cannot be included when determining the will of the electorate. In other words, fraudulent votes cannot be counted. In most of the cases discussed, the parties agreed that fraud did not occur. However, in In re General Election for District Justice, 670 A.2d 629 (Pa. 1996), and after remand, 695 A.2d 476 (1997), the claim, and the proof, was that fraud did occur because someone altered the election results. In that case, Joseph Zupsic thought he had been elected as a state judge in Beaver County, Pennsylvania, when he had a 36-vote victory over Delores Laughlin after the ballots were counted the first time, but he found that he lost to her by 42 votes when a recount was held over a month later. That result was overturned by the Pennsylvania Supreme Court because the evidence showed that ballots had been altered in Ms. Laughlin’s favor between the time of the initial results and the recount.73 73 On remand, the trial court found overwhelming evidence that 45 of the 87 contested ballots had been altered, based in large part on the similarity between the marks on 15 ballots that Ms. Laughlin had conceded were altered, and the marks on 30 other ballots. On appeal from that decision, the supreme court said, “[C]lear and convincing evidence of fraudulent tampering can be established by an accumulation of circumstantial evidence that defines a pattern that is consistent with tampering.” 695 A.2d at 481. Ms. Laughlin lost again. More complex discussions of the facts and the legal principles involved in In re General Election for District Justice are set out in the discussion of the case in Chapters 1 and 2. 85