Residents of Schuylkill County still don't know who will be their district attorne. A hearing got under way Tuesday in Schuylkill County Court on a challenge of Christine Holman's victory.
Holman won by 63 votes over incumbent District Attorney Karen Byrnes Noon.
No resolution was reached Tuesday and the hearing was rescheduled for another day.
President Judge William E. Baldwin dismissed a motion by Holman to dismiss the petition filed on behalf of Noon to declare the election for district attorney illegal.
The court is allowing Noon's supporters to file an amended complaint immediately with Holman's counsel to reply Thursday. The hearing is scheduled to resume on Friday.
Noon has until the end of the month to complete her term, and if no decision is made, the county could be without a district attorney when the new year begins.
The current dispute reminds old-timers about a similar incident a number of years ago when Albert Nagle of Cressona, a Democrat, appeared to have scored a stunning upset victory over incumbent state Sen. Paul Wagner of Tamaqua. The court contests over absentee ballots dragged on for years and Nagle never got to serve. The issue now is also over absentee ballots.
The issue Tuesday dealt with Holman's motion to quash the petition claiming the board of election failed to properly count the absentee votes for the office of district attorney.
Two of the signers of the petition were called as witnesses, Brian Tobin, first deputy county sheriff, and Elizabeth A. Bettinger, of Berwick, a representative of the steel workers union.
Both testified they learned of the problem the scanning machines had in recording around 40 of the absentee ballot votes.
Tobin got his information from Commissioner Gary Hess, one of the three commissioners in charge of the vote count. Bettinger heard from a worker at the election center, who later attended a victory party for Sheriff Joseph Groody.
After the testimony attorney Maria Casey, lead counsel for Holman, asked to have the petition dismissed because the witnesses charges were based on information from third parties and there was no evidence of voter fraud.
Baldwin denied the motion stating that fraud is not the only issue to overturn an election as highly improper manner of conducting an election is also a reason.
The amended complaint was filed late yesterday afternoon, asking the court to issue an order to appoint a committee to conduct a recount of three countywide paper ballots, including the absentee and overseas votes.
The petition asks that the recounting of absentee and oversees ballots for the office of district attorney be done as soon as possible and that Karen Byrnes Noon be declared the winner of the office.
The complaint refers to testimony given by Election Director Frannie Brennan about the optical scan, a computer glitch of the absentee ballots which caused an unprecedented procedure in her 20-year tenure.
The complaint also says a contract employee of the voting machine company entered between 36 and 40 absentee ballots into the GEMS system and or another voting machine to compute these ballots, according to testimony of Brennan.
According to the complaint, the contracted employee is neither a resident of the commonwealth nor a qualified elector of the commonwealth and that only a qualified elector may serve as an election night official.
It is claimed these entries made by the contract employee were not done in compliance with the State Department directive as to what constitutes a vote. It is claimed a shift of over 32 votes could change the outcome of the election.
The complaint also claims a resolution board of four people deal with any problems with absentee ballots. The members of the resolution board that night were Mark Scarbinsky, Ed Barket, Mary Beth Dougherty and George Moyer.
The complaint claims other problems arose with absentee ballots which would not scan because there was an offer vote that should have been given to candidate Noon.
The complaint states the resolution board created duplicate ballots and it claims there was no indication of the original voters intent.
Also that the resolution board gave instructions to the election night workers to override the optical scanner on overvote situations by pushing the "yes" button on the scanner which shows that the ballot is being counted numerically but not who received the vote.
The petition claims that the contractor employee instructed the workers not to hit the "yes" button and instead give him the ballot for entry into the system. The complaint claims he improperly overturned the decisions of the resolution board.
The complaint claims that substantial error has been committed therein in the counting of the votes and absentee and overseas ballot for the office of district attorney.
On Nov. 13 the computing board completed the official count of the votes cast at the Municipal General Election held on Nov. 5 and Holman received 15,265 votes and Byrnes Noon (Democrat) 15,192.