*1 Reading Recount Case. Mtjs- 1963. Before C. January 30, Argued J., Bell, O’Brien Cohen, Eagen, Roberts, Jones, manno, JJ.
Irving Segal, R. him Jr., Robert L. Kendall, Shapiro, Robert F. Adam B. Russell J. La- Krafczelc, Segal for Marca, Sehnader, Harrison, <&Lewis, Reading appellant. Defense Committee, Darlington
Paul N. Hoopes, Schaeffer County appellee. Berks Citizens Association, Opinion by February 1963: Mr. Justice Eagen, September special On elec- a referendum pursuant Optional tion City Char- Third Class (Act July ter Law of P. L. 53 P.S. 15,1957, seq.) City Pennsylvania, Reading, et was held in the of Council-Manager to determine whether or not Plan government adopted Paper city. should be in that question ballots were used to submit the elec- to the torate and more than votes were cast. final 28,000 by open plurali- gave as indicated result, returns, ty against adoption plan. of 99 votes petitions
Subsequently, were filed with the Court County Common Pleas of Berks to recount the ballots forty-one During contained election boxes. re- challenges proceedings, par- count were recorded validity ties interest of a total of 431 ballots. challenges all concerned the manner in which the casting involved were ballots the voter in in- fraud question. his her vote No was respect rulings volved. The of the court with resulted of a certain number these ballots validity adoption of 26 in favor plurality votes plan. appeal This correctness challenges the legal were ruling lower court’s declaring that certain void final tabulation and should be counted in the of the vote.
Each “Shall question: ballot contained the following Class Third Council-Manager Plan of the Optional Charter Councilmen City (7) Law, providing seven to be the City elected be adopted by large, ? Reading” blocks
Opposite the above two double question were *3 or square one other. upper above the left squares, left printed contained the and the lower word “Yes” Immediate- square contained printed the word “No.” where- adjacent squares to these blank ly squares were could indicate Ms vote. each voter or her On the ballot instructions were specific printed guide fol- voter in ballot. casting the These included the (V) either “Use a cross or a check lowing: (X) mark.” The did not indicate specifically instructions cross or check mark (X) where the should (V) on the ballot. placed be- considered conclusion that the is our court specific in certain invalid.
low erred ballots ruling into Those These be classified two 1. categories: (V) inserted a or the voter cross a check (X) wherein in there- proper voting square mark in the but addition or in the added the word “No” in writing “Yes” 2. wherein a Those the voter inserted square; same check mark in (V) proper voting or a (X) cross in addition thereto inserted cross another square mark in the (V) square containing or check (X) “No.” “Yes” word printed
65 categories When in two the ballots the foregoing are result of the final counted, they as should be, ballots, election In 45 changed. will be Category 1, “No” which the court 34 are invalidated, involved, 11 “Yes.” In 11 declared in- ballots were Category 2, 10 and 1 valid, “No” “Yes.” in
On
question
validity
382
volved the cases of Norwood Election Contest Case,
Pa.
116 A. 2d
547,
(1955) ;
James Appeal,
Con
Election
cently provides follows :1 “Any amended, in (V) than an by any (X) mark void.” spaces for that shall be provided pro this Court in construing this Norwood, supra, placed vision ruled the voter that where unanimously check mark in addition to a cross (V) election square a candidate’s name on the opposite render this did not ballot, irregularity void.2 As of that date the of a ballot marking check mark It was the amend (V) permitted. was L. the Act of P. January ments the code, by permitted (1959) that first §3063(a), In fact use a check mark. the code effect as provided: Norwood decision bal “Any the date of the other mark than lot marked an *4 for space provided that shall void and not counted.” enunciated in the Norwood power As the case, minor irregularities to out a ballot for throw should be It for used. should be done com sparingly only very in reasons. Again, Bauman, we said pelling supra, in a ballot “Marking voting is a matter not page 456: (25 (a)). L. P. amended of June 1 Act situation, see Bauman factual For similar Contest Case, supra.
of precision regis of an bnt unmistakable engineering conformity tration of the in voter’s will substantial statutory requirements.”
In
under
the instant
ballots
the
on the
case,
voters,
preferences
their
discussion, unmistakably
indicated
the
mark in
and voted
the
question by
proper
proper
surplusage.
square. The additions were mere
votes
To
the minor
rendered the
say
irregularities
pica-
for very
would disenfranchise
these
void,
votes
in
noted
reasons.
In this connection it is
yune
on the
it did not
printed
say,
the
instructions
ballot
ONLY.
USE A CROSS
OR
(X)
(V)
A CHECK
on the
may
Nor
additional
insertions
identifi-
concerned possibly be construed to constitute
respect
in
in
provision
cation marks. The
code
subject
great
liberality:
this
must be construed. with
Bauman Election Contest
In that
supra.
Case,
case,
square
(X)
proper
a voter inserted a cross
added a horizontal
line
two
through
(X).
well
voters inserted
marks as
check
instances,
held
It was
voting square.
as the cross
did
ballots.
these additional marks
not void the
line
insertion
a horizontal
additional
Certainly,
susceptible
a cross
is much
to iden-
more
through
than
additions involved herein. See also,
tification
the additional Cate- mark on the referred to in gory constituted an erasure or mutilation supra, the ballot voting thereby rendering square, vote void. With this do not agree. we conclusion,
The main contention of appellee counsel for the amendment supra, to the code by the Act previous- effect overruled the decisions of Court this ly cited expression constituted a clear herein, legislative intent enactment, that from the date of that a voter had to mark the ballot with an or a mark and more. nothing interpret We do not so Act of con- pertinent 1960. The words involved which stituted an addition to the Act of are 1937, supra, follows: That all “Provided, markings the ballot are made pen pencil same and that markings all on the ballot are same type marking either cross or check This (V)-” provision refer does not to the situations involved. It said and said only a ballot shall be marked with the markings same the same pen pencil. did throughout additional minor say insertions would If the legislature ballot. nullify a intended to over- Bauman and Norwood, rule James, supra, language have been set forth expression. such easily giving could supplied. Emphasis govern- in the form of the conclusion, change *6 in of ad- ment the or not City Reading may be but if such it visable, is to be let be done accomplished, by the the electorate in will of and accordance law. is reversed it order court below is and entered be
directed that a final and corrected order this opinion. consonant with Benjamin Mr. Justice R. dissents. Jones Dissenting by Opinion Cohen: Mr. Justice re- I rationalization cannot accede to the forced Elec- to in the Norwood sorted the majority opinion, A. tion Contest Pa. 116 2d 552 Case, 382 547, the of or which flies in the face “authority” 2148, 2142 at clear mandate Act of P. L. of that (a) requiring “Any (sj) in other mark than an check by any not void and shall be spaces provided purpose counted(Emphasis supplied). by of mandate patent legislative disregard process democratic disruptive
the courts whole is bal- adjustment of checks the delicate and and shatters our of government. so scheme important ances great consequence and of no important is not be Reading may may City government impor- the majority action of is by the changed —what consequence has is our court of great tant and misapplied clear misinterpreted legis- misread, true This is particularly pronouncement. lative the election laws are basic interpretation I am fol- impelled to system. Hence, democratic our said Weber Justice Jones Appeal, Chief what low 2d “The recently A. 1960: (and the Election Law are they many) technicalities
69! of the secrecy are necessary preservation meticulous- be of the ballot and purity must, therefore, observed.” ly
I dissent. Dissenting Opinion Roberts: Mr. Justice determined Validity questioned “Any provides: Election Code which §1228(a)1 or a ballot marked other mark than an by any shall for that spaces provided void supplied.) and not counted.” (Emphasis applicable is exact and language clear, *7 be must provides statute that a ballot to be valid or more marked an or (V) nothing a only (X) — or No deviation less be marked or substituted. may therefore, exception or expressed implied, none, is ballot voting is for permitted. legally The method prov- in whose Legislature is prescribed by strictly process. ince exclusive control of the electoral rests conclusive positive mandate The is legislative explicit to the to conform fails counted”. not be void and “shall statutory requirement contained ballots which in voiding The lower court, of additions as such more than an (V), con- did what precisely “No” and the like, “Yes” or commanded. Election Code of the section trolling manner, and required marked in the not Ballots those to valid than construed form no more be or unofficial ballots, on homemade recorded polls day or on the hour closing lawful after the sub- in each instance is The defect the election. after 1 1333, §1223(a), amended, 1937, 3, Janu L. P. Act of June 2142, §3063(a). §4, (1959) ary 8, 1960, 25 L. P. provided amendment, only an the' Code the 1960 to Prior (X).
70 provi- to with the the same —failure
stantially comply should likewise of Election Code. The result sions exer- attempted be the same —the ballot is void and is hardship No of ineffective. legally cise franchise de- to If the voter undertakes imposed on the voter. takes he prescribed viate from the requirements all, concern is failure comply. the risk his casts voter who disenfranchisement possible permitted in a manner not his ballot preservation sanctity rather the but Code, those effect process by giving only election whole laws marked in accordance with the election marked). ballots out were so (27,935 28,235 little relied lend upon by majority The cases opinion. reached their support the result 2d 382 Pa. 116 A. Norwood Election Contest Case, 547, a ballot marked with a heavy 552 involved (1955), marking over a and held that such light check-mark, did prohibition against identifying not violate the upon or pass marks. The Court did not consider mark than (X). of use of a consequences James Pa. A. 2d 64 105 Appeal, votes under propriety issue was the write-in in- here Election Code. Section 1223(a), nor discussed. there neither pertinent was volved, In Bauman Election Contest Case, *8 and in Norwood upon A. 2d 630 relied heavily (a) on portions the decision rested James, further and which marks prohibit identifying an (X) irregular that a ballot provide by not be invalid. This Court there said form shall issue drawn in language §1223(a) to the reference then provided provision solely here: “This [which if uses means a voter (X)] obviously a mark of Xan mark than indicate his other choice, any Id. A. not be counted.” 2d at 632. 455-56, ‘vote’ shall §2963. In ma- one class of ballots here held valid the choice jority, was indicated an (V) plus the word “Yes” or “No”. it seems clear However, even under plus something X “Yes” equals Bauman, other than (X), marked must similarly invalidated.
In it is obvious in event, litigation this class of that no voter casts his ballot a manner contrary specific requirements of reli- the Election Code in ance on decisions of this Court which construed valid ballots on which appeared various markings or in addition than, prescribed to, Rather, marks. they rely instructions given. this case, instructions on the ballots were so clear sufficiently of the voters 27,935 marked their ballots. properly
I would affirm the decision of the court below from must, dissent therefore, any determination which to that holding. contrary Sweigert Appellant. v. Mazer,