
    Counting Ballots in the Fifth Ward.
    
      Election lane — What pen or pencil to use in marking ballot — Petition to correct return — Practice—Contest.
    A petition, asking the court to issue summary process to bring into court certain election officers and all election papers to correct the election return, on the ground that certain ballots were not counted because marked with ink) or with pencils other than those provided by the election board, will be refused, as the question suggested can be raised only on a contest, though a voter may use either a pen or pencil and any pencil with which he sees fit to mark his ballot.
    Petition to correct election return. C. P. Lancaster Co., T. B. 27, page 173.
    The petitioner, H. J. Taylor, set forth in his petition:
    “1. That he is a qualified elector of the 2nd Precinct of the 5th Ward, Lancaster, Pennsylvania.
    
      “2. That at a general election held in said certain district on Tuesday, Nov. 4, 1924, the election officers of said district committed a palpable fraud or mistake in the counting of the ballots at said election, and the certified returns of said election by the said election officers filed in the office of the prothonotary and now before the judge as a return judge are not correct by reason of a certain palpable fraud or mistake.
    
      “3. That the said certain palpable fraud or mistake more particularly specified is that said election officers did not count two ballots wherein the cross-mark required under the law was made with ink and fourteen ballots wherein the cross-mark required by law was made with pencils other than pencils provided by the election board.
    “4. That the said palpable fraud or mistake is not apparent on the return of the election.
    
      “5. That in order to secure a just return in the election district, your petitioner prays your honorable court to issue summary process against the election officers of said district to bring them forthwith into court with all election papers in their possession, to the end that the court may be enlightened and the said election return of said election district may be corrected by the court and so certified in accordance with the Act of May 6, 1909, P. L. 425 (429).
    “And he will ever pray.”
    
      S. V. Hosterman, for petition.
   Landis, P. J.

And now, Nov. 10, 1924, the within petition is refused because the question suggested cannot be raised on a count of the vote, but only on a contest: Bertolet’s Election, 13 Pa. C. C. Reps. 353. If the facts are as stated, the votes should have been counted. The act of assembly says that the voter shall make “a cross-mark in the appropriate square.” It does not say that this cross-mark shall be made with a pen or pencil. The voter may use either a pen or pencil, and he may usé any pen or pencil he sees fit. If the election judge excluded votes because the cross-mark was made with a pen or a pencil not furnished in the election booth, he did what he had no right to do.

Prom George Ross Bshleman, Lancaster, Pa.  