Chapter 2
resealed and locked in the tabulation room to which three people had keys. The results of later recounts were substantially the same as the first recount.
More than two months after the election, Mr. Zupsic filed an election contest. The trial court found that
sometime between November 2 and January 5, somebody opened the ballot boxes and marked enough ballots
to change the election result in Ms. Laughlin’s favor. Ballots that had been marked for Mr. Zupsic were later
marked for Ms. Laughlin as well, causing those ballots to be “overvoted” and rejected (because they had more
than one candidate marked for an office for which only one person was to be elected), giving Mr. Zupsic fewer
votes than he had initially. Conversely, ballots that originally had no vote for a candidate in the judge’s contest
(“undervoted”) later were marked for Ms. Laughlin, giving her more votes than she had initially.
Most of the differences between the first vote count and the recounts came from five precincts and existed
only in the Zupsic-Laughlin contest (votes for candidates in other contests were unchanged). The trial
court found that there was no way to determine exactly how many ballots were altered, but it allowed into
evidence testimony from five voters who said they could identify which of the ballots were theirs, because
those voters had put their own names on the ballots as write-in candidates for various offices. Each of
the five ballots had a vote marked for Ms. Laughlin, and each of the voters said he or she did not put it
there. Ms. Laughlin lost the case and appealed the decision.
On appeal, one of Ms. Laughlin’s arguments was that the trial court was wrong to admit the testimony
of the five voters because a voter may not waive his or her right to the secrecy of the ballot. The Supreme
Court of Pennsylvania reviewed the sound public policy reasons for maintaining the secrecy of the ballot
and for refusing to “‘abandon the keystone of our democracy—the secrecy of the ballot, on the pretense
of discovering an error in the return.’” 670 A.2d at 639, quoting Judge Woodside in Thomas A. Crowley
Election Contest, 57 Dauphin Co. Rep. 120 (Pa. 1945). But the supreme court then quoted Judge Woodside
further to say, “‘…[W]e are not prepared to state nor called upon to say that there are no circumstances
under which a legal voter will be permitted to take the witness stand on his own circumstances and testify
how he voted…’” 670 A.2d at 639. However, in the Crowley case, Judge Woodside concluded that where
there was no fraud and one could determine what the vote was from the ballots themselves, oral testimony
by the voter as to how he or she voted should not be accepted.
The Pennsylvania Supreme Court then noted that Mr. Zupsic’s case involved a finding that fraud occurred in some of the ballots and determined that those five voters’ testimony as to the content of their
ballots was properly allowed into evidence:
We agree with the lower court that, under the unusual circumstances of this case, the sanctity of
the ballot is not best preserved by secrecy, but instead by allowing those whose legitimate votes
were altered through no fault of their own to testify, if they so choose, regarding how they originally voted. Therefore, we hold that, under these limited circumstances, where a vote has been
properly cast but subsequently altered through no fault of the voter, the voter should be allowed
to voluntarily appear and testify regarding how he or she originally voted.
670 A.2d at 639.
When the ballot is illegal because of the voter’s action, however, the courts are less reluctant to have them
testify about how they voted. This is what happened in Green v. Reyes, 836 S.W.2d 203 (Tex. App. Houston 1992), where Ben Reyes (a Houston, Texas, city councilman) challenged the apparent nomination,
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