In Re: Recount of Ballots
Nos. 89, 113 and 114
Supreme Court of Pennsylvania
July 1, 1974
August 7, 1974
In this case the appellant raised the issue of the statute‘s unconstitutionality during his hearing before the Dental Board. The Board‘s actions were thus not final and the appellant did not waive his right to challenge the de jure authority of the Board. The appellant had standing and the constitutional issue raised requires a reversal.
In Re: Recount of Ballots.
reargument refused August 7, 1974.
Clarence D. Neish, for appellant at Nos. 89 and 113, and appellee at No. 114.
John J. Petrush, with him Morgan H. Sohn and Gretchen Sohn Reed, for appellee at Nos. 89 and 113, and appellant at No. 114.
OPINION BY MR. JUSTICE NIX, July 1, 1974:
On November 6, 1973, the voters of Beaver County were called upon to elect two individuals for the position of Judge of the Court of Common Pleas for that County. Three candidates aspired for these two seats.
After a voluntary disqualification by the judges of Beaver County this Court specially assigned the Honorable F. Joseph THOMAS “to determine the validity of challenges made before the Recount Boards and to rule thereon“.1 These appeals are from the Order of the court below ruling upon the contentions of both Reed and Walko which have been consolidated for the purposes of argument and disposition by this Court.
The court below ruled that because of Walko‘s failure to comply with the pertinent provisions of the Act he was not entitled to this request. We agree.
Section 17012 and Section 17033 permit the recanvassing of the votes in an election district where there
Candidate Walko admits non-compliance with the provisions of §§1701 and 1703 and argues that he was entitled to this remedy pursuant to the Act of June 3, 1937,
We cannot, however, accept that even assuming that Walko was successful in establishing that he was aggrieved by the decision of the Recount Boards as to the recanvass of the ballots cast in the 112 election districts this grievance could be rectified by permitting a belated recount of additional election districts not included in the first recanvass. Clearly, this at best is an ingenious attempt to extend the time to request a recount of the remaining election boxes within the County which we will not permit.
Candidate Walko, in the alternative, argues that even if the appeal is deemed to have been untimely filed, he should nevertheless be permitted to proceed by way of an appeal nunc pro tunc. In urging this position, he relies heavily upon this Court‘s decision in Koch Election Contest Case, 351 Pa. 544, 41 A.2d 657 (1945). We believe this reliance to be misplaced. In Koch, the posted return had shown that the candidate who received the majority of the votes cast had been duly elected. Thereafter, the County Board of Elections negligently computed the returns and returned a majority of the votes for the opposing candidate and, although recognizing their error, failed to correct it. There it was clear that the Board had lulled Koch into a false sense of security and this Court properly observed: “. . . the only appropriate remedy by which the negligence of the election board could be corrected was
Compliance with statutorily imposed time limitations is especially important in election cases. This point was made clear in Turtzo v. Boyer, 370 Pa. 526, 531, 88 A.2d 884, 886 (1952) when this Court said: “It is because the lawmakers of the State were aware of the inertia inherent in an unestimated percentage of the population, and the great harm which can be visited upon others because of that inertia, that it categorically established time limits for the various procedures required in the operation of the Pennsylvania Election Code. Unless time limits were set within which to challenge the results of elections, government would permanently sit on a shaky foundation, and the citizenry would never be certain of the identity of the officeholder chosen to direct and operate the complex activities of the State, County and Municipality. Civilization must protect itself from the sluggard, as well as from the evil-doer. The lazy railroad watchman, who fails to lower a safety gate in time, can inflict as much harm on innocent passengers as the bandit who holds up the train.”
Secondly, appellant Walko alleges error in the lower court‘s refusal to order a second recount of the ballots of 112 boxes previously recounted. Certainly the court had the power to order a second recount, Greenwood Township Election Case, 344 Pa. 350, 25 A.2d 330 (1942). However, in Passante Appeal, 447 Pa. 304, 308, 290 A.2d 69, 71 (1972) we said: “This does not mean that a second recount is mandatory if some interested party alleges such a mistake, but rather that the court may order a second recount if it is convinced such a mistake occurred. Here the lower court was apparently satisfied that the computation made by the board in the first recount was correct and the record does not evidence any meritorious reason why this conclusion should not be affirmed.” In view of the nature of an election where finality is of utmost importance multiple recounts should be permitted only in the face of manifest error. Here the record does not evidence any manifest error which would require reversing the lower court‘s refusal to order a second recount.
Challenges to the Lower Court‘s Rulings Upon the Validity of the Recanvassed Ballots
These complaints can be broadly divided into two basic categories. The first complaint is raised by candidate Walko to the refusal of the Recount Boards to count ballots which were deposited in the various voting boxes without the perforated corner containing the identifying numbers being removed. Act of June 3, 1937,
At the outset it is important to be reminded that the right of suffrage is the most treasured prerogative of citizenship in this nation and this Commonwealth. It is this right that made the American dream distinctive, where men were to be governed not by the state but by themselves. Unreasonable impairment or unnecessary restrictions upon this right cannot be tolerated whether the contest be for the selection of the President of the United States or the district committeeman.
Ballots Deposited with Voter Identification Numbers Attached
Section 3055 provides in part: “. . . the election officer shall direct the elector . . . to remove the perforated corner containing the number . . . . Any ballot deposited in a ballot box . . . without having the said number torn off shall be void and shall not be counted.” Following this section the Recount Boards in a ruling sustained by the court below refused to count ballots that had been cast where the perforated corner containing identifying numbers had remained attached. There was no direction on the face of the ballot instructing the voter of the need to remove that particular portion before casting the ballot nor is there any evidence on this record that would support a finding that voters who cast the ballots in question were, in fact, advised of this requirement by the appropriate election official. Our research has revealed a dearth of cases for this jurisdiction on the point at issue. We have found only one lower court case addressing an analogous situation, Morganroth Election Case, 50 D. & C. 143 (1942). In that
“We are of the opinion that even if the above averment is true we would not be warranted in rejecting this entire vote, thus disfranchising all the citizens who cast their ballots in that district. If the averment is true, the election officer did not perform the duty required by law, but, as pointed out before, it is not alleged that this was done fraudulently or corruptly by the election officer or that the voter had joined in a conspiracy to receive a ballot without the number and, consequently, we regard it as a mere irregularity in the absence of all allegation as to fraud, not affecting the result of the votes cast at this poll, and it has been uniformly held that irregularities will not avoid an election even though the election officers may be subject to punishment.” (Citations omitted). 50 D. & C. at 159.
Unquestionably, the preservation of the anonymity of the voter, and the integrity of the vote are legitimate aims for a state to seek to achieve through legislation. Equally as obvious is that this section was designed to permit a citizen to cast his vote in such a manner that he may enjoy complete insulation from untoward influences in the exercise of his judgment. However, while it is most appropriate for the state to legislate to achieve these ends those regulatory measures must not ever be permitted to unduly infringe upon the exercise of the right to vote. Clearly, the invalidation of a ballot where the voter has complied with all instructions communicated to him and in the absence of any evidence of improper influence having been exerted, invalidation would necessarily amount to an unreasonable encroachment upon the franchise and the legislative enactment should not be interpreted to require such a result. To rule otherwise would unnecessarily condition the right
Alleged Irregularities on the Face of the Ballot
Candidates Walko and Reed raised challenges to the lower court‘s ruling contesting the validity of 188 ballots. The alleged defect arises from a failure to comply with the provisions of §3063.6 Section 3063(a) provides: “(a) No ballot which is so marked as to be capable of identification shall be counted. Any ballot that is marked in blue, black or blue-black ink, in fountain pen or ball point pen, or black lead pencil or indelible pencil, shall be valid and counted: Provided, That all markings on the ballot are made by the same pen or pencil. Any ballot marked by any other mark than an (X) or check (V) in the spaces provided for that purpose shall be void and not be counted: Provided, however, That no vote recorded thereon shall be declared void because a cross (X) or check (V) mark thereon is irregular in form. Any erasure, mutilation or defective marking of the straight party column at November elections shall render the entire ballot void, unless the voter has properly indicated his choice for candidates in any office block, in which case the vote or votes for such
In McCaffreys’ Appeals, 337 Pa. 552, 559, 11 A.2d 893, 896 (1940), we stated: “It is manifest from a mere reading of section 1223 of the Act of 1937 that not every mark which may separate and distinguish a ballot will
In Bauman Election Contest Case, 351 Pa. 451, 454-5, 41 A.2d 630-632 (1945), this Court stated: “Election officers would have enough power to change in many instances the result of an election if they were permitted to throw out every ballot which contained marks which were not contained on any other ballot. The power to throw out a ballot for minor irregularities . . . must be exercised very sparingly and with the idea in mind that . . . an individual voter . . . [is] not to be disfranchised at an election except for compelling reasons.”
“This Court in its opinion emphasized the fact that ‘the purpose in holding elections is to register the actual expression of the electorate‘s will’ and that ‘computing judges’ should endeavor ‘to see what was the true result“. Further, in the Bauman decision, we stated at page 456: “Marking a ballot in voting is a matter not of precision engineering but of an unmistakable registration of the voter‘s will in substantial conformity to statutory requirements.” In a number of decisions following the philosophy announced in McCaffreys’ Appeal, supra and Bauman, supra, this Court has rejected claims of invalidity of a ballot predicated upon minor irregularities where the intention of the voter was clear and there was an absence of any showing that the irregularity was intentionally created specifically to make the ballot identifiable. See, Mellody Appeal, supra; Wieskerger Appeal, supra; Reading Election Recount Case, 410 Pa. 62, 188 A.2d 254 (1963); Norwood Election Contest Case, 382 Pa. 547, 116 A.2d 552 (1955) and James Appeal, supra. An analysis of these cases convinces us that unless the alleged identifying feature
We need not attempt to discuss each of the 188 challenges that are here on review. Suffice it to say that this Court has reviewed all of those ballots in question and we will only discuss those where we are in disagreement with the ruling reached below.
Alleged Improper Mark to Indicate Vote
There are two ballots that fall within this category where we differ with the conclusion reached by the court below. The first ballot, identified in the court below as Exhibit B-Walko, Economy Borough, First District, was not counted by the Recount Board for Walko. That decision was sustained by the court below. Here the voter did comply with the direction that he use either a checkmark or a cross. In this instance, a checkmark was used. The alleged complaint arises from what we believe is an irregularity in the formation of the checkmark which was made to signify the vote for candidate Walko. The Recount Board concluded that, there were three checkmarks in the office block, although a voter was required to vote only for two candidates. An inspection of the ballot shows that this voter in several instances retraced the checkmarks and in some instances the retraced lines did not coincide with the original checkmark. After careful inspection we are satisfied that this was not an attempt to cast votes for each of the three candidates but rather only an attempt to emphasize his mark as was done in several other places on the ballot. Under the expressed provisions of this section an irregularity in the formation of
The other ballot in this category was identified below as Exhibit A-Walko, Beaver Falls, First Ward. There the only mark on the ballot is the word yes in the party column in the space provided for those who wish to cast a straight party vote for the Democratic candidates. In Reading Election Recount Case, supra, we held that the word yes appearing on a ballot did not render it so unique as to demonstrate a willful intention to make the ballot capable of identification. While that case differs from the instant situation, in that there was also an appropriate mark in the designated block and the word yes was treated as surplusage, we do not believe that that difference is material. Just as the proscription against adding unauthorized marks is to preserve the anonymity of the voter, so too is the requirement that a specific type mark be employed to express the voter‘s intent. To allow additional markings where there is also an appropriate mark and yet not to permit the same additional marking where the intention of the voter is clear by the use of that marking would present an anomaly which would escape rational explanation. Thus, in these two instances we conclude the vote should have been permitted to count for candidate Walko.
Two Different Writing Utensils Used
In this category there are two ballots. The first was an attempted vote for Walko and identified below as Exhibit A-Walko, Aliquippa Borough, Third District, and the second an attempted vote for Reed, identified as Exhibit A, Chippewa, Second District. In both instances ink and pencil were used. There is nothing distinctive in the manner in which the ballots were marked or in the coloring of the lead and ink that was used. We cannot infer from these ballots that there
Erasures and Smudges
There are seven ballots that fall within this category that the court below refused to count. Four of these ballots represent attempts by voters to cast votes for candidate Reed and three of these ballots were intended to be votes for candidate Walko.7 In several of these instances it is not clear whether, in fact, there was an erasure or whether there was a smudge inadvertently caused in a manner unrelated to an attempt to erase. In Passante Appeal, 447 Pa. 304, 309 (1972), we pointed out that we cannot necessarily assume that every smudge was caused by an erasure. Further, none of these questioned marks was sufficiently significant to have set the ballot apart from all others cast in that district and make it capable of later identification. Additionally, there is no question as to the intention of the voter in each of these instances. To deny the vote under these circumstances particularly where the inadequacies of the instructions appearing on the face of the ballot coincide with the reasons for the challenged votes8 would be without justification.
The lower court‘s rulings as to these ballots are reversed and candidate Reed is to be credited with an ad-
Ballots Found in Spoiled Envelopes and Marked “Void” on the Face of the Ballot
Finally, we reverse the lower court in two ballots, from Beaver Falls, First Ward designated as Reed-Exhibits A & B, which were discovered in the envelope for spoiled ballots and were defaced by the word “void” written along the side of the ballot. Since the spoiled envelope indicates that new ballots were issued, we must conclude under the circumstances that new ballots were, in fact, issued and to avoid a double vote these ballots should not be counted. The court below based its ruling solely on the effect that should be given to the fact that the word “void” appeared on the face of the ballot. We do not believe that this issue can be resolved without also considering the most important fact that the ballots had also been put, apparently by an election official, into the envelope for spoiled ballots. Therefore, it is ordered that these two votes credited to Walko by the court below be hereby subtracted.
Conclusion
Judge THOMAS in his opinion concluded that the final vote of candidate Reed of 30,598 as found by the Recount Board should be increased by twenty votes giving a total of 30,618. Further, he found that the vote of 30,591 certified by the Recount Board for candidate Walko should also be increased by twenty votes bringing his total to 30,611.
We hereby order, for the foregoing reasons, that the total count as found by Judge THOMAS for Reed be increased by five votes making a total of 30,623. Likewise, the count for candidate Walko is to be increased
Accordingly, the order of the court below is vacated insofar as it is inconsistent with this opinion and the case is remanded for proceedings consistent herewith. The Court below is instructed to supervise the tearing off of the perforated corners to preserve the anonymity of the voters.
DISSENTING OPINION BY MR. CHIEF JUSTICE JONES AND MR. JUSTICE ROBERTS:
We dissent and would affirm the orders of Judge THOMAS.
Commonwealth v. Nash, Appellant. Commonwealth v. Robinson, Appellant.