415 Pa. 327 | Pa. | 1964
Lead Opinion
Opinion by
This appeal involves the validity of votes cast in Row C — which is miscalled by the appellant a “blank” row — on voting machines in 15 wards in Philadelphia. An analysis of the facts and the law, as well as the prior decisions of this Court require an affirmance of the Order of the lower Court. That Order affirmed a unanimous decision of the Board of Elections
Row C (erroneously called by appellant “a blank row”) is the row here involved. Row 0 was marked on the left in relatively small capital letters “special election”, and in enormous capital letters “REPUBLICAN”. A long line was then drawn through the middle of this horizontal row with an arrow at the end pointing to a Republican candidate Edward IT. Rovner, with a pointer or lever over his name. A photograph of the pertinent parts of the voting machine is attached and made a part hereof as above mentioned, and clearly shows how to vote for a Democrat, if that was the voter’s desire.
Subsection (d) of Article XII, §1216 of the Election Code (Act of June 3, 1937, P. L. 1333, 25 P.S. §3056) provides as follows: “(d) At primaries, he shall vote for each candidate individually by operating the key, handle, pointer
If there had been, on the part of any voter, the slightest doubt concerning (a) the set-up of the voting machine, or (b) the sample ballot, or (c) the way to vote for the candidate of his choice, he could lawfully and without the slightest difficulty have obtained assistance, explanation, directions and instructions. Subsections (a) and (b) of §1216 of the Election Code pertinently provide as follows: “(a) In districts in which voting machines are used, the election officers shall, with the aid of the diagram authorized by this act and the mechanically operated model, instruct each elector before he enters the voting machine booth regarding the operation of the machine, and shall give the elector
Furthermore, every voter was entitled to a large sample ballot which informed him twice — not in confusing language, as appellant asserts, but in brief clear language, with a crystally clear picture or diagram— what a careful look at the voting machine would have rendered unnecessary, viz., to vote for a candidate of his choice he should “turn down a pointer over the name of each candidate in your own party row”
Whether the instructions on the sample ballot were ambiguous and confusing as appellant contends, or were crystal clear as we assert, can be easily determined by reading it. It pertinently provides: “GENERAL PRIMARY AND SPECIAL ELECTION, TUESDAY, APRIL 28, 1964 (large caps)
“instructions to voter (Smaller caps)
“2nd. Turn down a pointer over the name of each candidate in your own party row that you wish to vote for, from this position >-....... "■ v C to this position and leave it there.
(You will note on the Ballot that the Republican Party occupies the first horizontal row, the Democratic Party the second horizontal row .... Just remember to turn down a pointer over the name of each candidate you wish to vote for . . . .)”
Notwithstanding all of the foregoing, and although these (Jamestown) voting machines have a lever (pointer) right over or above the name of each Republican candidate to pull down if the voter wishes to vote for a Republican, and a similar lever in the row
Some voters pulled down levers into the miscalled “blank” Row C — a Republican row — under three spaces in Row B (the row above C) where a Democrat’s name appeared and some levers under five spaces in Row B, where no candidates’ names appeared in Row B. These are the votes which are challenged in this appeal. No one knows or can determine — except by guessing,
What is the use of a State having election laws to govern an election, what is the use of having clearly marked voting machines, and rows on the voting machines which were clearly marked for a Republican pandidate and for a Democratic candidate, as well as clearly marked sample ballots, if a Court has the right and power — as appellant argues — to ignore and nullify all of these and substitute its “guess” as to whom a voter intended to vote for if he hadn’t voted carelessly or hurriedly or absent-mindedly or stupidly or protestingly and illegally?
Furthermore, appellant’s contention not only ignores the clear language of the Act and the clear setup of the voting machine and the clear language of the sample ballots, but it also flies in the teeth of numerous prior decisions of this Court: Weber Appeal, 399 Pa. 37, 159 A. 2d 901; Pfaff v. Bacon, 249 Pa. 297, 95 A. 71; Rodgers Contested Election, 234 Pa. 512, 83 A. 476; Dailey’s Appeal, 232 Pa. 540, 81 A. 655; Gulick Appeal, 192 Pa. 446, 43 A. 972; Newberry Township Election, 187 Pa. 297, 40 A. 822; Contested Election of Flynn, 181 Pa. 457, 37 A. 523; McCowin’s Appeal (Little Beaver Township School Directors’ Election), 165 Pa. 233, 30 A. 955; Lawlor's Contested Election, 180 Pa. 566, 37 A. 92; Redman’s Election, 173 Pa. 59, 33 A. 703.
Notwithstanding the fact that the voters’ intention was clear, the Court voided all three ballots, thereby giving the election to the apparent loser, and said: . . On one of the ballots in question there is no mark in the square opposite the name of the candidate, but there is a cross mark (X) in the square below it. Not one of these ballots is marked according to law. In McCowin’s Appeal, 165 Pa. 233, the present Chief Justice, after quoting from sections 14 and 22 of the act, said: ‘The marking mentioned in the last quotation is applicable only to candidates whose names are printed in the official ballot. They cannot be legally voted for in any other way than by marking as specified in said section.’ ... To hold that the ballots in question are valid is to set aside the plain provisions of the act prescribing the place and manner of ‘marking,’ and to substitute therefor the surmises of the election officers and the courts respecting the intention of the voter.
“The presumption is that the voter knows where and how to mark his ballot. He is furnished on his
Weber Appeal, 399 Pa., supra, likewise controls in principle the instant case. Weber Appeal involved the validity of 16 stickers for a “write-in” candidate, because of the manner in which the stickers had been attached.
Chief Justice Jones, speaking for a unanimous Court, refused to permit the stickers attached to a card to be regarded as votes for the candidate whose name was on the stickers and pertinently said (page 44) : “The technicalities of the Election Law (and they are many) are necessary for the preservation of the secrecy and purity of the ballot and must, therefore, be meticulously observed.
“What this court said in Rodgers’ Contested Election, 234 Pa. 512, 519, 83 A. 476, is presently peculiarly apposite: While it may be that the Court in this instance correctly guessed the intention of the voter, yet the fifty-seven mutilated ballots were not marked in accordance with the instructions contained in the Act of Assembly, and under the well established doctrine in this State they should not have been counted; to permit the counting of such ballots would be a precedent fraught with grave dangers for the future.”
In Peck v. Lackawanna County Board of Elections, 44 Lackawanna Jurist 97, Justice Eagen of this Court, then a Judge in Lackawanna County, said that votes cast on a voting machine row in exactly the same way as they were cast in the instant case would be invalid. That case involved a mandamus proceeding concerning the locking of a voting row, so that well intentioned votes which were carelessly or stupidly “levered” would not be invalidated.
In the course of his Opinion Judge Eagen said (page 98) : “The unfortunate and repeated occurrence of a candidate losing hundreds of votes intended for him by well intending voters pulling a lever over a blank space under his name will be corrected by the ballot label setup proposed for use in this election.”
The only exceptions are two classes of cases, neither of which is applicable — (1) minor irregularities, es-specially if committed by election officials, and (2) cases where a voter voted correctly in the right row
Appellant gives three major reasons to support its contention:
(I) General expressions in Opinions in entirely inapposite cases about protecting the vote and the voter. Every Judge favors protecting the voter if. that can be done in accordance with the law. However, the generalized quotations which appear throughout appellant’s brief appeared in cases which, we repeat, have no relevance and no pertinency to the questions here involved.
(II) Appellant next relies upon Article XII, §1216(d) of the Election Code of 1937, supra, which pertinently provides (as above noted) : “At primaries, he shall vote for each candidate individually by operating the key, handle, pointer or knob, upon or adjacent [not below, or in the row of the opposite party] to which the name of such candidate is placed.”
The interpretation which appellant places upon the word “adjacent” would allow a voter to vote on one machine both “upon” and “adjacent” to a candidate, or “upon” or “adjacent” to a candidate. Furthermore, under appellant’s theory, the word “adjacent” could mean (1) above, or (2) below, or (3) to the left, or (4) to the right, or (5) near to the candidate’s name, which realistically is both impractical and absurd. Section (d) clearly and undoubtedly means that a particular voting machine can have a pointer or lever which can be pulled down upon the name of the candidate of his choice, viz., a Jamestown machine, or a different type of machine, viz., a Shoup machine which was used in a number of wards. The Shoup machine has a pointer or lever on the right side of the candidate’s name (and can be pulled to the left and just beside the candidate’s name) and consequently is adjacent to the name of the candidate. The Legislative
(Ill) The third reason urged by appellant is its desire to carry out the surmised intention of the voters and thus avoid “disfranchising” many voters. Such alleged disfranchisement is more superficial than real. In the first place, if there was any disfranchisement the voters carelessly or unthinkingly disfranchised themselves. But even this alleged disfranchisement would apply only to a vote for a United States Senator; it does not affect or invalidate these voters’ votes for other candidates on the ballot or on the loan question.
The test which appellant urges us to adopt — no matter how window-dressed or camouflaged, is a “guess” test — it isn’t what the voter did that counts, its what the Court guesses he intended to do, but didn’t. Such “guess” test would undoubtedly often produce confusion, uncertainty and interminable delay in election cases, thus jeopardizing a candidate’s opportunity for successfully campaigning; it would multiply “election litigation”; and it would sometimes produce chaos in Government.
Appellant attempts to justify its “guess” as to “the intention” of the voters by citing several cases which state that ballots must not be “thrown out”, or “an election voided”, or “voters disfranchised” for “mere minor irregularities” or “technical violations”. Until this argument was urged upon the Court, no one ever dreamed that to vote Republican, intending to vote for a Democrat was “a minor irregularity” or “a technical violation”. In spite of the appellant’s guess, a vote
To summarize: In order to reach its conclusion, appellant misinterprets or ignores (1) the clear (pertinent) election laws, and (2) the set-up of election machines which are clear to everyone except to a careless or an absent-minded or a hurried or an unthinking voter, and (3) the marked sample ballots which contain (a) very brief, clearly worded instructions, instructing a voter twice in clear, simple, brief language which lever to pull down in order to vote for the Democrat or Republican candidate of his choice, as well as (b) a crystally clear illustration, and (4) the words at the left end of Row (C) which state in small capital letters “special election" and in very large capital letters “REPUBLICAN”, and (5) the line through the middle of Row C, with an arrow at the right end where the name of the candidate, Edward H. Rovner, appears, and (6) many prior decisions of this Court which, we repeat, in principle directly rule the instant case. Furthermore, appellant has not been deprived of any right ordained or guaranteed by the Constitution of the United States.
For each and all of these reasons, we affirm the Order of the Court below, which affirmed the unanimous decision of the Election Board.
Order affirmed.
Composed of two Democrats and one Republican.
Herein called and referred to as a lever.
Italics throughout, ours.
If the Election Board had had locked (or blocked off) at a cost of $3,000 the blank spaces on Row C, it would have prevented those controversial votes.
Justice Cohen quoted the Weber decision with approval in a recent dissenting opinion in Reading Election Recount Case, 410 Pa. 62, 66, 188 A. 2d 254, saying on pages 68 and 69: “. . . It is not important and of no great consequence that the government of the City of Beading may or may not be changed by the action of the majority — what is important and of great consequence is that our court has misread, misinterpreted and misapplied a clear legislative pronouncement. This is particularly true in the interpretation of the election laws which are basic to our democratic system. Hence, I am impelled to follow what Chief Justice Jones said in Weber Appeal, 399 Pa. 37, 44, 159 A. 2d 901, as recently as 1960: ‘The technicalities of the Election Haw (and they are many) are necessary for the preservation of the secrecy and purity of the ballot and must, therefore, be meticulously observed.’ ”
Concurrence Opinion
Concurring Opinion by
I join in the opinion of the Chief Justice. An examination of the record facts, particularly of the voting machines which were set up as illustrated in the diagram, which will be found in the reporter’s state
This opinion is in no way a reflection upon any of the litigants. It is rather an expression of regret for the unfortunate positions in which they have been placed by the inexcusable conduct of the County Board of Elections. Neither of the reasons offered by the Board for its failure to prepare properly the voting machines by locking levers over blank spaces in rows C and D, as legally commanded, even approaches an acceptable explanation.
It is erroneous to assume that those voters who pulled levers in row C intended to vote for candidates whose names appeared above those levers but actually in row B. Such an assumption would be founded on nothing more than the exercise of retroactive clairvoyance as to what was intended on April 28 by 5,624 lever markings over blank spaces recorded on 908 voting machines in 512 election districts in 13 Philadelphia wards.
It is unmistakably evident from the ballot faces of the voting machines, as illustrated in the diagram, that votes for Democratic candidates whose names appear in the second horizontal row, marked “B”, may be recorded only by the operation of levers above their names, as the hand pointer in that row clearly indicates. Moreover, there runs through the center of the blanks in row C (and also D) a heavy black line from column 1 through column 39 where an arrow points to the special election in column 40.
It is an undisputed fact that levers in row C were operated in columns 1, 17, 18, 19 and others in which no names appeared either above in row B or below the levers in row C. Of particular interest is the use of columns 17, 18 and 19 in row C for the election of delegates to the Republican National Convention. If the “votes” recorded in columns 2, 3 and 4 of row C were validly cast for candidates in row B, so also were the “votes” in the remainder of row C, an obviously absurd conclusion.
It is conceded that all voters who entered the 908 voting machines in question could, irrespective of their party registrations, turn down levers in any of the columns in row C from column 1 through column 39 as well as the lever in column 40 for the special election. It is likewise undisputed that voters other than registered Democrats could and did operate levers in row C.
Nor can it be assumed that only registered Democrats voted in row C because it is unlawful to cross party lines in the primary, although the machines did not preclude such crossovers.
To hold that the votes cast below the names of the candidates are valid would require the interpretation of “upon or adjacent” in §1216 (d) of the Election Code as “either upon or adjacent.” Under such a view, voters would be given the choice of pulling down the lever over the candidate’s name, as the instructions provide, or pulling down the lever under the name, as appellants would have us hold. Appellants contend that the levers in row C, with no names ap
Some concern has been voiced that by not counting the markings over the blanks in columns 2, 3 and 4 in row C and by not attributing those votes to candidates whose names appear in row B, 5,624 voters will be disfranchised. The application of this kind of paternalism would ignore the fact that 24 out of every 25 voters
Realistically, those voters who pulled improper
To give so much weight to so conjectural an expression of a minute minority (less than one out of 25) indeed would be an extreme overemphasis of the possible disfranchisement of 5,624 voters to the utter disregard of the more than 120,000 voters (both Republican and Democratic) in these districts who voted properly and in accord with the instructions on use of voting machines. This becomes even more apparent in light of the more than 1,000,000 votes properly cast without irregularity in the Democratic primary throughout the state.
Furthermore, it cannot truthfully be said that these 5,624 voters would be disfranchised since many may have voted correctly for other candidates, on the loan question, and in the special election.
Voting machines have been used in this Commonwealth for more than thirty years in the conduct of thousands of local, state and national election contests. No one has ever successfully contended that levers in one row may be utilized to vote for candidates whose names appear in another row.
Neither Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801 (1963), urged at argument, nor any earlier or more recent decision, compels, supports or even suggests a result contrary to that reached here. The Supreme Court did not say nor imply and surely did not intend that invalidly cast votes be counted under the doctrine of “one man, one vote,” or any other theory just as that Court would not demand that each voter who appeared at the polls cast a vote for each office.
We must not be misguided or misled by what is asserted to be possible disfranchisement of those relatively few voters who operated levers in a manner other than in accordance with the clear instructions and the election laws. Our concern must lie primarily with the preservation of the sanctity of the election process by giving effect to those votes properly cast. To do
Another look at the diagram (of the face of the voting machine ballot) reinforces the correctness of the determinations of the Board and the court below. That additional look also further re-emphasizes the propriety and wisdom of affirmance here.
The initial reason given for the failure to block all levers in rows O and D except for those to be used in the special election was that the Board did not wish to spend the $3,000 such action would require. At oral argument, the Board asserted that it had
In those divisions where separate machines were used for the Republican and Democratic primaries, respectively, votes were cast beneath the names of the Democratic candidates for the Senate in row O on the Republican voting machines. The proportion of such votes in row 0 to the total Republican vote on these machines was approximately the same as the proportion of row O votes to
In the 15 wards in question (including two using the Shoup machines), 80,412 Democrats signed voters’ certificates, whereas a total of only 73,244 levers were pulled down in both rows B and O combined in columns 2, 3 and 4. (Figures supplied by Democratic City Committee.)
An assumption that no crossovers took place is consistent with the “unwise” pre-election position of the Board of Elections that it would be unnecessary to lock rows C and D. However, fol
Even more confusion and uncertainty would result in a primary election in which the number of candidates for any office requires more than one row for listing their names.
Thus, the suggested interpretation of “upon or adjacent” would render useless thousands of voting machines in the Commonwealth.
More than 120,000 voters appeared at the polls in the wards here involved.
The total of votes cast in columns 2, 3 and 4 of row O was much greater than the totals in columns further down the row.
In Application of Lester, 127 N.Y.S. 2d 272 (S. Ct. 1953), as in the instant case (except for the special election), the Republican candidates were on row A, Democratic candidates on row B, and no candidates on row O. There, as here, the law required that each lever on row O should be locked. In both cases, this was not done and constituted an absolute failure to perform
In this proceeding no claim was made by a voter or litigant that any voter was denied the right to vote or refused the opportunity to cast his ballot. So, too, no federal question — constitutional or otherwise — was properly or precisely raised, submitted or argued in this appeal. The record fails to reveal the presence of any such question.
Dissenting Opinion
Dissenting Opinion by
Convinced that the decision of the majority of this Court, which results in the disfranchisement of thousands of voters, is contrary both to law and common sense, I register my dissent.
The stated bases of the majority’s ruling are: (1) the election law clearly proscribes the manner in which these disputed votes were cast; (2) the “set-up of [the] voting machines” was “clear to everyone”; (3) the “sample ballots” [herein called by the statutory term “specimen ballots”] were clearly worded and illustrated and they instructed the voters which lever to operate; (4) the words “Special Election, REPUBLICAN” to the left of Row C and the line drawn horizontally across Row C on the machines constituted clear instructions which were ignored by the voters; (5) the case law in this Commonwealth “directly rule[s] the instant case”. In this opinion, I shall endeavor to demonstrate — not in the same order — the infirmity of each and all the bases upon which the majority opinion rests.
On this appeal we are called upon to determine the validity of certain votes allegedly cast for certain candidates in thirteen wards of the City of Philadelphia at the primary election held on April 28, 1964.
Between the top row and Row A and extending horizontally across the machine was a panel of levers marked “A”; between the second row- — Row A — and the third row — Row B — was another panel of levers marked “B”; between the third row — Row B — and the fourth row — Row C — was another panel of levers marked “C”. When a Republican voter entered the polling booth, the levers in panel “A”- — above the names of the Republican candidates — were unlocked and the levers in panel “C” — below the names of the Democratic candidates — were unlocked but the levers in panel “B” — below the names of the Republican candidates — were locked. When a Democratic voter entered the polling booth, both the levers in panel “B” — above the names of the Democratic candidates — and the levers in panel “C” — below the names of the Democratic candidates — were unlocked so that a Democratic voter could depress and operate either
That which has given rise to this controversy is the undisputed fact that all the levers in the panel marked “C” were permitted to remain unlocked and susceptible of operation by the voters whereas only the lever in the panel marked “C” above the name of the Republican congressional candidate should have been permitted to remain unlocked.
After the election was held and the votes canvassed, it was then discovered that, in the thirteen wards involved in this appeal, 5624 voters had cast votes in Row C by the depression of the unlocked levers in panel “C” directly below the names of the Democratic candidates for the U. S. Senate listed in Row B.
The rationale of the court below, adopted in large part by the majority opinion, was: (a) that the failure of the voters to indicate their choice in accordance With the election statute rendered void their votes; (b) in reliance on Contested Election of Flynn, 181 Pa. 457, 37 A. 523, that “neither our courts nor our election officers are permitted to surmise the intention of the voters, and '[that] an elector’s non-compliance with proper voting procedure is inéxcusable”; (c) that the depression of a lever above a blank space on Row C constituted an inexcusable noncompliance with statutorily-required voting procedure on the part
At the outset, reference must be made to the respective positions taken by the Committee and appellee. The Committee contends: (1) that the intent of the voters, if it can be ascertained, should control, that it is to be presumed that a vote is validly cast and that the disfranchisement of voters should not be permitted because of minor irregularities or technical violations of the election procedures; (2) that the intent of the voters who depressed the levers in panel “C” is clear, i.e., to vote for the particular candidates whose names appeared directly above the levers; (3) that, in ascertaining the intent of the voters, consideration must be given to the fact that the voting took place on complicated voting machines upon which, through the election officials’ inaction, a condition had been permitted to exist whereby the voters could depress either the levers in panel “B” or panel “C”, and, under such circumstances, courts and canvassing boards should exercise great liberality in determining the validity of votes cast in Row C; (4) in the absence of evidence to the contrary and in view of the presumption that voters vote legally, the votes cast by the depression of the levers in panel “C” must be regarded as having been cast by Democratic voters rather than by “crossover” Republican and Non-Partisan voters. Appellee takes the position: (1) that the votes recorded in Row C are void because they were not recorded in the proper voting space; (2) that the case law, cited by the Committee, is inapposite because such case law dealt with votes cast in the proper voting space whereas in the case at bar the votes were cast in an improper space; (3) that the depression of the levers on the
Certain matters are beyond question. First, there is neither allegation nor proof of any fraud on the part of the voters, the election officials, or anyone else. Second, this controversy would not be before us were it not for the impact of the validity of these votes on the contest for the Democratic nomination for the U. S. Senate.
Initially, we must inquire whether the operation by the voters of the levers in panel “C”, directly below the candidates’ names, violated the election statute and to that end we must examine the election statute to ascertain how a voter must vote on a voting machine.
Section .1216 of the Election Code
The approach to a construction of §1216 (d) of the Election Code must begin with an examination of our statutory law, past and present, prescribing the manner in which an elector must cast his vote for a candidate whose name appears on the ballot. It must be noted, of course, that until the passage of the Voting Machine Law of 1929 (Act of April 18, 1929, P. L. 549), all voting was by paper ballot and, therefore, the pre-1929 statutory law referred only to voting by such method.
Section 14 of the Act of 1893 (Act of June 10, 1893, P. L. 419) provided, inter alia, that the ballot should “be so printed as to give to each voter a clear opportunity to designate his choice of candidates by a cross-mark (x) in a square of sufficient sise at the right of the name of each candidate and inside the Une enclosing the column” (emphasis supplied), and §22 of that act provided, inter alia, that the voter should prepare
Sections 1J and 22 of the 1893 statute were amended by the Act of 1903 (Act of April 29, 1903, P. L. 338).
In 1919, the legislature again amended §22 of the 1893 statute: Act of July 9, 1919, P. L. 829.
Such examination of our statutory law, past and present, on the manner of voting by the use of paper ballots indicates beyond question that the legislature clearly directed both how a voter should vote, i.e., originally by a cross, but now by a cross or check, and where such vote should be marked, i.e., in the square opposite the candidate’s name, etc. Therefore, in considering our case law dealing with irregularities in the manner of voting on paper ballots, it must be kept in mind that the legislature has always clearly declared both how and where votes on paper ballots must be cast.
However, an examination of the legislative direction as to the manner of voting on voting machines reveals
The Voting Machine Act of 1929, now repealed by the Election Code of 1937, was silent on the manner of voting a ballot on a voting machine. At the present time the manner of voting on voting machines is governed, insofar as primary elections are concerned, by §1216(d) of the Election Code (25 P.S. §3056) which, I repeat, provides, in pertinent part: “At primaries, he [the voter] shall vote for each candidate individually by operating the key, handle, pointer or knob,
Moreover, even the most cursory comparison of the several statutes, past and present, prescribing the manner of voting on paper ballots with the statutory provision prescribing the manner of voting on voting machines reveals that the case law on paper ballots and irregularities in voting thereon cannot be considered as precedents in determining the manner of voting on voting machines and irregularities in such voting.
However, assuming, arguendo, that the operation of the levers in panel “C” was a technical noncompliance with §1216(d) and assuming that the intent of those who so operated the levers can be ascertained, does the fact of such technical noncompliance with the statute per se invalidate these votes? The court below and the majority of this Court equate noncompliance with the election statute with invalidity of the votes, regardless of the intent of the voters; in so doing, in my opinion, they err.
However, since the passage of the 1919 statute this Court properly has been more liberal and has given recognition and weight to the intent of the voter, once ascertained. In Knight v. Coudersport Borough, 246 Pa. 284, 289, 92 A. 299, we approved that which was said in Black on Interpretation of Laws: “If the law itself declares a specified irregularity to be fatal, the courts will follow that command, irrespective of their views of the importance of the requirement. In the absence of such declaration, the judiciary endeavor, as best they may, to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to vitiate the entire return; otherwise, it is considered immaterial.” See also: Fish’s Election, 273 Pa. 410, 117 A. 85; Gegg’s Election, su
What was the intent of the voters who operated the levers in panel “C”? In my opinion, such intent was to vote for the Democratic senatorial candidates whose names appeared directly above the levers operated. When a voter depressed the lever in panel “C” directly below the name of Genevieve Blatt, he intended to vote for Miss Blatt; likewise, as to those voters who depressed the levers directly under or below the names of David Roberts and Michael Musmanno. In Peck v. Lackawanna County Board of Elections, 44 Lack. Jurist, 97, Judge (now Mr. Justice) Eagen fully recognized that such was the intent on the part of voters pulling a lever under the name of a candidate. As a
The majority opinion, labeling the finding of the voters’ intent as a “guess”, concludes that such a “guess” as to intent, if permitted to stand, would occasion dire results perhaps even “chaos” in government. With that I thoroughly disagree. In many areas of the law courts must and do ascertain, from language and/or conduct, the intent of an individual. As an example, time and again we have said that, in the construction of wills, the “polestar” is the intent of the testator and we then have proceeded, by placing ourselves in the “armchair” of the testator and by examining the language and scheme of his will and the surrounding circumstances, to ascertain what the testator intended: Woodward Estate, 407 Pa. 638, 640, 182 A. 2d 732. Was such intent arrived at by “guess”, speculation or conjecture? I think not. In the case at bar, believing as I do that in election cases we must give recognition to the intent of a voter if ascertained, why cannot we place ourselves in the position of a voter in the polling booth, examine what confronted him and what he did and, considering all the surrounding circumstances, ascertain his intent? Granted that in construing a will we have principally the language of the testator before us and we determine what he meant by what he said, it seems to me that we can just as well determine what a voter meant by what he did; conduct can be just as eloquently communicative of intent as the written word. The ascertainment of the voters’ intent is not a “guess”; it is an opinion arrived at after a careful
If the voters by depressing the levers did not intend thereby to vote for the candidates whose names appeared directly above such levers, what did they intend? The majority opinion offers several alternatives, i.e., such votes were “protest” votes, “cross-over” votes or “mistake votes”. If there were “protest” votes, against whom or what was the protest? On this subject the record is silent and the majority opinion furnishes no support for its suggestion. Were these “cross-over” votes? Appellee contends that Republican and Non-Partisan voters “crossed over” and registered their votes for Democratic candidates. In support of this contention, appellee points out that the levers in panel “0” were unlocked to Republican and Non-Partisan voters as well as Democratic voters, that on 17 voting machines used only by non-Democratic voters a total of 60 votes appeared in the senatorial columns of Row C and that, by a projection of the ratio shown on those machines to all the machines in the thirteen wards, the conclusion must be reached that approximately 1378 of the 5624 votes in Row 0 were cast by Republican or Non-Partisan voters.
Moreover, we cannot, and must not, overlook the fact that it was the carelessness on the part of the Board in permitting the levers in panel “C” to remain unlocked and susceptible of operation which created the condition on the basis of which we are now asked to invalidate these 5624 votes. Over eighty years ago, this Court in Contested Election of Wheelock, 82 Pa. 297, 299, said: “If we, by our decision, should permit
Appellee asks this Court to invalidate the 5624 votes cast in Row C in the Democratic senatorial contest as well as all the other votes cast in Row C for other candidates. In so doing, reliance is placed principally on Flynn, supra, Weber Appeal, 399 Pa. 37, 159 A. 2d 901, and Application of Lester, 127 N.Y.S. 2d 272. Factually, both Flynn and Weber completely differ from the case at bar and are, therefore, inapposite. Moreover, Flynn dealt with statutory provisions applicable to paper ballots, not voting machines, and Flynn represents a rule of extreme rigidity no longer followed by this Court. Even if Lester had been determined under statutory provisions similar to the statutory provisions as to voting-machine voting in Pennsylvania — which it was not — , even so I am neither bound by Lester nor impressed by its rationale.
Great emphasis is placed by the majority on the specimen ballots which, in the majority view, contained “clearly worded instructions” and a “crystally clear illustration” on the manner of voting, instructions allegedly ignored by the voters. The printing and delivery of specimen ballots is covered by the Election Code (§1007) but it is significant that when the legislature provided the instructions to be given by election officers to voters on voting machines, specimen ballots were not mentioned (Election Code, §1216(a), (b)). To say, as does the majority, that the voters ignored the specimen ballots clearly implies that the voters saw these ballots but there is no evidence such ballots either were seen by, or available to, the voters. As a matter of fact, even the legislature did not contemplate that each voter receive a specimen ballot because it re
Tbe majority takes refuge in tbe statement that tbe machines were “clear to every one”. The weakness of tbis statement is well illustrated by an incident which took place in tbe hearing in tbe court below when tbe very intelligent counsel for the Board, requested by tbe court to point out tbe levers in panel “C”, depressed the levers in panel “D”. This incident emphasizes, if any emphasis be needed, tbe complexity and intricacy of tbe voting machines which confused these voters.
Tbe power to throw out ballots should be exercised very sparingly and only for “compelling reasons” (Bauman Election Contest Case, 351 Pa. 451, 454, 41 A. 2d 630) and “ ‘ “ the rights of voters are not to be prejudiced by tbe errors or wrongful acts of election officers” ’ ” (Wilkes-Barre Election Contest, 400 Pa. 507, 513, 162 A. 2d 363).
In summary, I am of tbe opinion that: (1) §1216-(d) — which establishes tbe guideline for voting on vot
Lastly, I am reminded that in Simon Election Case, 353 Pa. 514, 519, 46 A. 2d 243, we said: “The courts have never been able to lay down a precise standard by which it can be determined in a given case whether the irregularities [on the part of the officials conducting an election and making the electoral count] are of sufficient magnitude to justify the rejection of an
The right to vote for United States Senator is protected and guaranteed by the Constitution of the United States (Art. I, §§2 and 3; 17th Amendment). The right to vote obviously carries with it the right to have one’s vote counted. In U. S. v. Classic, 313 U. S. 299, 314-16, 61 S. Ct. 1031, 85 L. Ed. 1368, the U. S. Supreme Court has recognized as a right “secured by the Constitution” the right of voters “to cast their ballots and have them counted”. As a result of the majority view thousands of voters have been denied this constitutional right. The Supreme Court of the United States in Gray v. Sanders, 372 U.S. 368, 380, 9 L. Ed. 2d 821, 830, declared “ ‘ the right to have one’s vote counted’ has the same dignity as ‘the right to put a ballot in a box.’” See also: Wesberry v. Sanders, 376 U. S. 1, 11 L. Ed. 2d 481, 486. A study of the majority opinion does not reveal any sound, let alone compelling, reason for the denial of this right.
The record in this case and our applicable law, statutory and decisional, compel me to recognize the intent of the voters. I cannot in good conscience on the facts of this case be a party to the disfranchisement and denial of the constitutional right of these thousands of voters. In my opinion, these voters should be validated; right and justice command that result. I would reverse the order of the court below.
In all tbe wards involved in this appeal, the Jamestown type of voting machine — wherein the voting rows are arranged horizontally — was used. In the 43rd and 49th wards, which are not involved in this appeal but to which reference is made in the briefs, the Shoup type of voting machine — wherein the voting rows are arranged vertically — was used.
From the “ballot label” containing the name of the office “Representative in Congress” on the top row, an arrow, pointing downward, crossed Rows A and B and ended at Row C.
The majority opinion repetitively condemns the Committee’s reference to Row C as a “blank row”. The fact is that Row C was “blank” in that it did not contain the names of any candidates, except that of the Republican congressional candidate.
Both the levers in panel “B” and in panel “C” above and below a particular candidate’s name could not be depressed and operated so that the voter could vote twice for such candidate. The majority opinion states: “The interpretation which [the Committee] places upon the word ‘adjacent’ [in the statute] would allow a voter to vote on one machine both ‘upon’ and ‘adjacent’
Cf. Section 1107 of the Election Code (25 P.S. §3007) which specifically provides: “No voting machine shall, upon any examination or reexamination, be approved by the Secretary of the Commonwealth, or by any examiner appointed by him, unless it shall, at the time, satisfy the following requirement: ... (e) It shall preclude each voter from voting for any candidate, or upon any question, for lohom or upon which he is not entitled to vote, and from voting for more persons for any office than he is entitled to vote for, and from voting for any candidate for the same office or upon any question more than once, except in districts and for offices where cumulative voting is authorized by law. (f) It shall be capable of adjustment by election officers, so as to permit each voter at a primary election to vote only for the candidates for nonpartisan nomination, if any, and for the candidates seeking nomination by the political party in which he is registered and enrolled, if he is enrolled as a member of a political party, and so as to preclude him from voting for the candidates seeking nomination by any political party in which he is not enrolled.” (Emphasis supplied).
Counsel for Miss Blatt (the appellee) contends the Committee should have applied for relief to the courts and that, not having done so, the Committee cannot now be heard to complain. Appellee fails to take into account that she had equal opportunity to act and did not do so. If any fault is to be imputed to the Committee in this respect, appellee must share in it.
The majority opinion seeks to minimize the result of its ruling by stating that the “number of questioned votes” was “less than 12 to a division and less than 7 to each voting machine used in the 13 wards”. What the majority opinion fails to state is that there were 908 voting machines and 512 election districts in the 13 wards involved in this appeal.
The court below, significantly, failed to note that the lever which the voters depressed was directly deloiv the name of a Democratic candidate.
5624 votes were cast in Row O by the depression of levers in panel “C” below the names of the three candidates for the Democratic nomination for the U. S. Senate. Of such votes cast, a tabulation shows: 2094 for Genevieve Blatt, 181 for David Roberts and 3349 for Michael Musmanno. It is highly significant that, throughout all the voting districts involved in this appeal, there was a definite pattern of voters utilizing the levers in panel “C” to cast their votes.
Except, of course, the lever above the name of the Republican congressional candidate.
Act of June 3, 1937, P. R. 1333, §1216, 25 P.S. §3056.
In the case at bar, small demonstration machines were furnished to the voting places, but such machines did not contain Rows O and D. The voting machines themselves contained no instructions and.the sample ballots only added to the confusion, see, infra.
Construing this statute, this Court held that a strict compliance was required to validate a vote: Contested Election of Flynn, 181 Pa. 457, 37 A. 523 (where on one ballot a “1” rather than an “x” was placed, on another ballot an “x” was placed to the right of the candidate’s name but not in the square opposite the candidate’s name and on a third ballot where a “1” rather than an “x” was placed in the square opposite the name of the candidate and an “x” placed to the right of the name but not in the square opposite the name and all three ballots were held void). See also: McCowin’s Appeal, 165 Pa. 233, 30 A. 955; Redman’s Election, 173 Pa. 59, 33 A. 703; Newberry Township Election, 187 Pa. 297, 40 A. 822. Cf. Gulick Appeal, 192 Pa. 446, 43 A. 972.
The 1903 statute used the words “voter may”, instead of “vbter shall”, but this Court held that such change of language was immaterial: Dailey’s Appeal, 232 Pa. 540, 81 A. 655.
Subsequent to the 1903 statute, this Court continued to require a literal and strict compliance with the manner of voting prescribed in the statute: Dailey’s Appeal, supra; Rodgers’ Contested Election, 234 Pa. 512, 83 A. 476; Pfaff v. Bacon, 249 Pa. 297, 95 A. 71. In Pfaff, it is interesting to note the language of Mr. Justice Mestbezat, in dissent, that a “ballot cannot be rejected unless it is so marked as to make it impossible to determine the voter’s choice. This is the only ground or reason for which a vote may not be counted.” (p. 312).
The Act of June 22, 1931, P. L. 628, further amended §§14 and 22 of the 1893 Statute but in a manner not presently pertinent.
The Act of June 3, 1937, P. D. 1333, §1215, as amended by the Act of January 8, 1960, P. L. (1959) 2142, §3, 25 P.S. §3055.
In this opinion I have adopted the language of the parties and refer to the “key, handle, pointer or knob” as the lever.
Dilks v. Flohr Chevrolet, 411 Pa. 425, 431, 192 A. 2d 682; Marnell v. Mount Carmel Jt. School System, 380 Pa. 83, 88, 110 A. 2d 357.
Words of a statute must be construed “according to their common . . . usage:” Statutory Construction Act of May 28, 1937, P. L. 1019, §33, 46 P.S. §533; Breslow v. Baldwin Township School District, 408 Pa. 121, 182 A. 2d 501. In Commonwealth v. Lanzetti, 97 Pa. Superior Ct. 126, 128, it was said: “. . . we are not justified in going so far as to hold that the word ‘upon’ is to be construed as ‘adjacent’.” “Upon” has been defined as “upward so as to be on”, “on or upon one”, “on the surface”: Webster’s New International Dictionary (2d Ed.), p. 2800. “Adjacent” has been defined as “Lying near or close to; sometimes, contiguous; neighboring. ... it implies that the two objects are not widely separated, though they may not actually touch”: Black’s Law Dictionary. “Adjacent” has been construed in the courts: Allentown v. Wagner, 27 Pa. Superior Ct. 485, 493 (“implies nearness to but not necessarily actual contact”) ; Camp Hill Borough, 142 Pa. 511, 517, 21 A. 978 (“adjoining or contiguous”) ; Hanifen v. Armitage, 117 F. 845 (“lying near, close, or contiguous, but not actually touching”).
The majority opinion says the statute is “both clear and realistic” and that the “word ‘upon’ clearly covers, and, . . ., applies to the present Jamestown machine; the word ‘adjacent’ would cover and apply to a different machine known as the Shoup machine . . . .” Such construction is completely unsupported by any evidence whatsoever. When the election statute was enacted were there Jamestown and Shoup machines? If there were, did the legislature have knowledge of such fact? This is a startling example of statutory construction by judicial wishful thinking.
Pfaff v. Bacon, 249 Pa. 297, 95 A. 71; Rodgers’ Contested Election, 234 Pa. 512, 83 A. 476; Dailey’s Appeal, 232 Pa. 540, 81 A. 655; Gulick Appeal, 192 Pa. 446, 43 A. 972; Newberry Township Election, 187 Pa. 297, 40 A. 822; Contested Election of Flynn, 181 Pa. 457, 37 A. 523; McCowin’s Appeal, 165 Pa. 233, 30 A. 955; Lawlor’s Contested Election, 180 Pa. 566, 37 A. 92; Redman’s Election, 173 Pa. 59, 33 A. 703, relied on by the majority, all dealt with voting by paper ballots, and, in no sense, control the case at bar.
In Bodgers, this Court, even though it conceded that the court below had ascertained the voter’s intent, refused to accord any weight to such intent. ,
Inter alia, §27 provided: “If a voter has marked his ballot otherwise than as directed by this act, so that for any reason it is impossible to determine the voter’s choice for any office to be filled, his ballot shall not be counted for such office; . . . .”.
Such is the rule in other jurisdictions: Green v. Independent Consolidated School District, 252 Minn. 36, 89 N.W. 2d 12; Redfearn v. Board of State Canvassers, 234 S.C. 113, 107 S.E. 2d 10; Hall v. Barton, 290 Mass. 476, 195 N.E. 753; Turner v. Board of Education, Ky., 266 S.W. 2d 321; Matter of Creedon, 264 N.Y. 40; Thompson v. Boling, 240 Ky. 340, 42 S.W. 2d 321.
This is sheer speculation. There was no evidence that 17 voting machines were used only by Non-Democratic voters. This was a presumption indulged in by the appellee and unfortunately accepted by the majority. Courts “cannot act on conjecture.” (Matter of Creedon, 264 N.Y. 40). It could well be that the 60 votes (about 3 to a machine) were cast by voters, who, like the rest of the 5624 voters, voted beneath the name of the candidate instead of above the name.
It is interesting to note the perspective of the appellee, the court below and the majority of this Court which is directed to and concentrated on the fact that the questioned votes were cast in “blank spaces”. Such perspective overlooks completely the fact that the thrust of §1216 (d) is directed to the operation of the levers, not to the place of recordation of the votes. The criterion by which the validity of the votes cast must be determined is ewcluswely that furnished by the statute.