*1 (Greenwich Collieries), 490, 498, 386, 536 Pa. 640 A.2d (Greenwich Collieries), (1994). See Stanek v. WCAB 411, 422-23, (2000).
845A.2d 793 Gregory SHAMBACH, Petitioner/Appellant, L.
v. BICKHART, Respondent/Appellee. Richard W. Pennsylvania Snyder In re General Election for County Commissioner, November 2003. Appeal Gregory L. Shambach of Recount
and Certification of Election Returns.
Supreme Pennsylvania. Court of
Submitted Feb. 2004. Decided March *2 Brown, Gregory Michael V. L. Shambach. Accurti,
Monna for Bureau of Elections. Clark, Middleburg, Thomas C. for Richard W. Bickhart. CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, Before BAER, SAYLOR, EAKIN, JJ. THE
OPINION OF COURT Justice NIGRO.
Appellant Gregory appeals L. Shambach from the Common- wealth order Richard W. Bickhart declaring Appellee Court’s the third seat on the County winner of Commissioner based on its inclusion Snyder County Board Commissioners in the final tally. of ten write-in votes cast on Bickhart’s behalf follow, For the we affirm. reasons that *3 along Shambach and Bickhart with two other Rick persons, and were listed on the ballot as Bailey Bilger, formally Steven Snyder candidates for three County positions Commissioner 4, the November election.1 After the election general tallied, Snyder County returns were counted and the Return (“Board”) Bailey Board determined that and had won Bilger County two of the but that the win- positions, Commissioner ner of the third remained undecided as Shambach and position election, 2,484 Bickhart had both come in in the receiving third tie, votes each. As a result of the the Board ordered a recount, 18, 2003, recount. on November Following 2,493 votes, Board determined that had received Shambach votes, 2,500 and Bickhart had received certi- accordingly, fied Bickhart as the winner of the third position.2 day, appealed
The next Shambach from the Board’s decision to the trial court 1407 of the Election pursuant Code, §§ 2600—3591.3 Among complaints, P.S. other Bailey 1. Shambach and Bickhart were the Democratic nominees and Bilger Republican were the nominees. Representatives of both Shambach and Bickhart observed the re- count. 3, 1937, 3. Act of June Section 1407 of the Election P.L. Code states: objected to the Shambach Board’s inclusion of ten ballots containing write-in votes for Bickhart in the tally. final Sham- argued bach that these ten votes were invalid because voter may person write the name of a who is already listed as A(b)(3) a candidate on a ballot pursuant to Section 1112 of the Code, Election provides which as follows: elections, At all other the voter shall vote for the candidates filled, of his choice for each office to be according to the persons office, number of to be voted for himby for each by (x) if) making a cross or check mark or making punch or mark in the square opposite [other] the name of the candidate, or may he so mark the position write-in provid- and, ed on the particular ballot in the space office provided on the ballot ballot envelope, write and/or therefor question and the name identification of office any person not already printed the ballot that office, and such mark and written insertion shall count aas vote for that person for such office. 3031.12(b)(3) added).4
25 P.S. (emphasis Shambach also argued write-in ballots for listed candidates were invalid Optical under Scan Standard which was of a part general “Notice” published by Pennsylvania Department of State (the in the August “Notice”).5 2003 Pennsylvania Bulletin Any person aggrieved by any any county order or decision of board regarding computation canvassing any pri- or of the returns of election, mary regarding any or or recount or recanvass thereof act, under sections 1702 and 1703 of this [footnote omitted] may appeal days therefrom within two after such order or decision made, not, shall have been writing whether then reduced to or to the pleas proper court of county, setting common why forth he *4 done, injustice feels that an praying has been and for such order as give will him relief. 3157, 3, 1937, 1333, XIV, 1407, § 25 P.S. Act § of June P.L. art. 28, 202, 53, by April 2(a)[1193], Act of § 1978 P.L. No. effective affected 27, June 1978. 3, 1937, 1333, XI-A, 1112-A, 4. Act of June § P.L. art. by amended Act 11, 1980, July § P.L. No. 4. Optical Scan Standard 14 properly states that: “A cast write-in vote and, shall target contain a mark in the space provided, area in the written name of a appear candidate whose name does not on the ballot Bull., for that office.” 33 Pa. No. 31 at 3970-73. It also includes examples according of ballots that are invalid to this standard. See id. entered an order on the trial court Following hearing, Bick- 24, 2003, votes for the ten write-in striking November Bickhart, objections raised After additional deciding hart.6 2,491 votes tally that the final was trial court determined Bickhart, 2,490 and thus declared votes for for Shambach County posi- third Commissioner the winner of the Shambach 15, 2003, issued an opinion, the trial court December tion. On had that the ten write-in votes that it found initially explaining Nevertheless, court the trial for Bickhart.7 clearly been cast on Optical invalid based the ten votes were determined has written the example a ballot on which someone One shows such provided for already on the line listed on the ballot name of a candidate at 3973. next to that name. See id. and filled in the oval a write-in vote Notice, Optical adopted in which Scan Department State The included, Help America Vote Act of comply with the 14 is Standard 15481(a)(6), adopt requires that each state which 42 U.S.C. nondiscriminatory what constitutes a standards to define uniform and involving a federal voting systems by the state in elections used vote Notice, According Department State based all of office. provisions of the Election Code. Notice on the the standards Bull., 31, at 3935. Pa. No. for Shambach. one write-in vote cast 6. The trial court also struck respect challenge action in this the trial court's Shambach did not challenge that he also does not Court and before the Commonwealth petition Court. action in his to this Moreover, objections initially although had raised several Shambach court, appeal after the trial in his to the trial to the Board's decision Bickhart, Shambach write-in votes for decided to strike the ten court granted objections, court his other trial moved to withdraw motion. write-in votes were that because four of the 7. The trial court elaborated Bickhart,” undeniably The they were cast for Bickhart. "Richard although were of the write-in votes further stated that two trial court Bickhart,” Bud these votes Bickhart” and one was for "R. for "Bud indisputably clearly Bickhart because “Bud” is were also cast for Lastly, found that three write-in nickname. the trial court Bickhart's clearly simply were for Bickhart for "Bickhart” also votes that were with the surname candidate in the election because there was no other McCracken, 562, 88 (quoting Appeal Bickhart. See id. at ("A (1952) may which contains a ballot be counted A.2d although persons in the only there are other surname candidate's surname, being that there was no borough having it shown the same for the same or person name who was a candidate other of such office____)). findings dispute court’s does not the trial Shambach other respects. in these
389 rule.8 14, administrative binding which was Standard Scan by Optical to abide obliged that it was trial court found The view, is in its “the Standard though, 14 even Scan Standard having the the case law of Commonwealth contrary to voter’s which the a ballot from counting effect of not possible see also 5; Slip op. discerned.” clearly could intent 11/24/03, N.T., at 17-18. to the Com- the trial court’s order from appealed
Bickhart
curiam,
on Decem-
per
Court,
order
issued a
monwealth
which
to the extent
18, 2003,
court’s decision
reversing the trial
ber
stating
for Bickhart and
the ten write-in votes
that
it struck
as it relates
for
vote for commissioner
“the final count
2,491 for
Bickhart
Richard
L.
and
W.
Greg
Shambach
24,
2,500
December
for Mr. Bickhart.” On
Mr.
Shambach
its
explaining
an
2003,
opinion
filed
the Commonwealth Court
that the trial
initially held
The
Court
order.
Commonwealth
14 was
Standard
Optical
found
Scan
improperly
court
as a
merely published
was
it when the standard
binding upon
with the force
regulation
rather than as a
policy,
statement of
Election
Pennsylvania
In re:
General
and effect of law.9 See
Lloyd
Pennsylvania Medical
Citing
v.
to this Court's decision
Fund,
114,
Liability Catastrophe
Pa.
821 A.2d
Loss
573
Professional
(2003),
rules
court stated that administrative
1234
the trial
reviewing
part
binding upon
court as
adopted by
agency "are
an
(2)
(1)
agency’s power;
they
issued
if
are:
within
the statute”
(3)
Slip op.,
procedure;
at 5.
pursuant
proper
reasonable.
test,
Optical
Stan
trial court determined that
Scan
Applying that
(1)
Department
binding
it was within the
14 must be
because:
dard
(2)
Department
authority;
followed
there was no claim that the
State’s
(3)
undeniably reason
improper procedure; and
the standard was
an
1112-A(b)(3).
id. at 5-6.
as it tracked Section
See
able
Department
had directed that
pointed out that the
of State
9. The court
published simply
a notice in the
Optical
14 be
as
Scan Standard
Bulletin,
regulatory
Pennsylvania
as a
law. See In re:
rather than
Commissioner,
County
Pennsylvania
Snyder
Election
General
841
Moreover,
2624(h)).
(Pa.Commw.2003) (citing
25 P.S.
A.2d at 595
binding regulation as it was
that the standard was not a
the court found
procedures
according
notice and comment
set
promulgated
to the
Law, which it stated are
Documents
forth
the Commonwealth
binding.
(citing R.M. v.
necessary
agency regulation to be
See id.
for an
Commonwealth,
A.2d
Pennsylvania Housing
Agency
Finance
denied,
(Pa.Commw.1999), appeal
Pa.
In deciding
question,
the Commonwealth
looked
Court
James,
to this
in Appeal
Court’s decision
of
(1954),
A.2d 64
where we found that a section of the Election
containing language very
Code
similar to that at
in
issue
1112-A(b)(3)
liberally
Section
must be
construed in favor of a
right
voter’s
to vote. See In re: Pennsylvania General
Commissioner,
Election
Snyder County
Judge
find that a
decision,
that a court must
reasoning
majority’s
a voter’s
to ascertain
attempting
cast before
validly
ballot was
Thus,
ten write-in votes were
that the
finding
id.
intent. See
1112-A(b)(3),
Leav-
Judge
validly
pursuant
cast
merely
ballots
counting
majority
erred
itt held
id. at 598.
were clear. See
the voters’ intentions
because
Thereafter,
ap-
for allowance
petition
filed a
Shambach
stay
for a
Commonwealth
request
as well as
peal
granted
We
Shambach’s
order with this Court.11
Court’s
31, 2003,
subsequently
on December
stay
request
February
order
allocatur
granting
entered an
*7
dissent,
initially argues
Leavitt’s
Shambach
Echoing Judge
whether
that a court first ascertain
requires
that our case law
to discern
validly
attempting
cast before
ballot was
that because the
therefore contends
voter’s intent. Shambach
pursuant
cast
to Section
improperly
ten write-in ballots were
A(b)(3)
Code, they
regardless
were invalid
1112
of the Election
clear and the ballots
the voters’ intentions were
of whether
further
argues
free from fraud.
Shambach
were
in
1112-
finding
Court erred
Section
Commonwealth
A(b)(3)
the statute at issue
Appeal
was similar to
of
1112—
statute involved
ballots and Section
paper
because that
A(b)(3)
tabulating
that use automatic
voting systems
concerns
system used here.
optical scanning
such as the
equipment,
1112-A(b)(3)
Shambach,
akin to
is more
According to
Section
1216(e),
of write-in votes for
which bars the inclusion
voting
on a
machine and which
already
candidates
listed
Yerger,
restriction in Appeal
as a reasonable
upheld
(1975).
fact,
537,
A.2d
In
Shambach contends
460 Pa.
333
902
vote,
County
conducting
the write-in
the members of
Board
upon
cards.
recount would have seen it
examination of
ballot
Commissioner,
Snyder County
Pennsylvania
Election
In re:
General
that Section must be as Yerger write-in votes based on our decision in Appeal of because the we found for the restriction upholding reasons there, namely, machines preserving efficiency voting double are also with protecting against voting, present to the used here.12 dis- regard optical scanning system We agree.
There “longstanding overriding policy Peti protect this Commonwealth to elective franchise.” 564, 146, (1993); tion Pa. Cioppa, 533 626 A.2d 148 see also 418, 108, In re: 447 Pa. 290 109 Weiskerger Appeal, A.2d (1972) (“Our must be to enfranchise and not to disenfran goal chise.”). Thus, election laws must be con although strictly fraud, they strued to will be construed prevent “ordinarily liberally in favor of the to vote.” 105 right Appeal of C.J.S., Elections, 7, 27); p. A.2d at 65 29 see also (quoting Johnson, 347, In re: Nomination Petition 509 Pa. 502 A.2d 142, (1985); 386, 146 In re: 449 Pa. A.2d Mellody Appeal, 296 782, (1972); Election, 271, 510, In re: Cole’s 223 Pa. 72 A. (1909). end, To that we have held that ballots containing irregularities only mere minor should be stricken for compel 784; reasons. In re: 296 A.2d In ling Mellody Appeal, See Boxes, re: Petitions to Ballot 410 Pa. 188 A.2d Open (1963); Appeal Gallagher, (1945). we recognized Appeal Gallagher, “[m]arking As a ballot is not a matter of but voting precision engineering *8 of an unmistakable of the voter’s will in substan registration tial to the conformity statutory requirements.” A.2d at James,
In the board of elections determined that Appeal of James, appellant, Samuel A. was the winner of an election Rushe, for a council opponent, seat. James’ Theodore howev- er, results, the election that challenged arguing because James ballot, formally was listed on the election 151 write-in votes challenge finding 12. Shambach does not the Commonwealth Court’s Thus, binding regulation. Optical that Scan Standard was not issue is not before this Court. in his favor based Section calculated improperly were 1003(e) Code, follows: which as provides, of the Election of candi- group left the end of each
There shall also be President of other than President and Vice dates for [offices States], as there are spaces as blank many the United office, which space for for such to be voted persons or whose any person persons the name may elector insert ballot as a candidate such name is not on the printed office. added).13 2963(e) county § The board (emphasis
25 P.S. write-in votes were with Rushe that the 151 agreed elections 1003(e) and, result, declared as pursuant void In doing reversed. appeal, Rushe the winner. On so, intro- ballot that had been representative we reviewed a court, and noted that an exhibit before the trial duced as ballot, only name stated twice on the one although James’ was him, cast for and thus there was no claim of vote had been Moreover, we the ballot fraud. See id. at 65. found demonstrated “unmistakably, unerringly precisely [the to vote for Id. at 65-66. There- voters’] intention[s] James.” fore, because there was no fraud involved and will clear, write-in was we held that “it voters who cast the votes democracy be a very principle would stultification of of the 151 write- deprive behind Election Code” expressly in votes on the basis that Code did not simply Id. permit voters to cast write-in votes listed candidates. liberally at 66-67. we construed the Election Accordingly, so as to allow the 151 write-in votes to be counted for Code James. See id. after we issued a decision
Twenty years Appeal of 902, 537, another election Appeal Yerger, write-in ballots for involving contest the issue of whether candidates on a ballot could be counted. In that already listed case, was declared the winner appellant, Yerger, William 3, 1937, 1333, X, 1003, § Act of 13. Act of June P.L. art. amended 2; 1; 8, 2142, 24, 1947, 68, 1960, (1959) § April § P.L. of Jan. P.L. Act 1964; 13, 1963, 707, 17, 1, July Aug. § effective Jan. Act of Act of P.L. 175, 1; 10, 1974, 835, P.L. No. Act of Dec. P.L. No. 2; 2, 1976, § Act of Dec. P.L. 1221. *9 of an tax collector after it was Township’s election for Jackson oppo- determined that he obtained two more votes than his nent, Norman Frederick. of Frederick Supporters appealed court, to the trial the election board’s failure to challenging count write-in votes that had been cast for Frederick. eight however, that because machines Yerger argued, voting had election, been in the the write-in votes were properly used 1216(e) Code, voided of the Election which pursuant Section states: election,
A or vote may, any primary any person voter for office, for for which office his name does not any appear candidate, by machine as a an upon voting irregular ballot of such containing person deposited, name written upon appropriate receptacle or affixed in or or device provided in or on the machine for that and in no purpose, here], other manner.... not relevant no [exceptions With voting be cast on a irregular any ballot shall machine for whose name on the person any office, appears machine for as a that ballot so cast be office, candidate shall void and not counted. added).14 3056(e) § (emphasis P.S. The trial court conclud- 1216(e)’s
ed that write-in proscription against Section votes already appeared candidates whose names on the ma- voting seven, chine violated the in article section six of requirement Pennsylvania Constitution election laws be uniform because, in Appeal as this Court made clear write-in votes for already appeared paper candidates whose name on a Thus, ballot could counted pursuant the Election Code.15 eight the trial court ordered that the write-in votes must be counted, and declared Frederick the winner. Court,
On
to this
we
We
noted
appeal
initially
reversed.
1216(e)
language
unambiguously required
that write-in votes cast for candidates
on the
already named
XII,
by
14. June
P.L.
art.
amended
ofAct Nov.
21, 1969,
309, §
P.L.
VII,
Pennsylvania
provides,
15. Article
section 6 of the
Constitution
with
here,
exceptions
regulating
not relevant
laws
elections
"[a]ll
throughout
citizens ... shall be uniform
the State....”
*10
counted,”
“be
and not
and that the statute
void[ed]
machine
unless
“to be
full effect
accordance with its words
given
was
by
Appeal
that result
Constitution.”
prohibited
then to the trial court’s
Turning
Second, 1216(e)’s we found that Section bar was a safeguard against casting voters more votes than allowed or votes for the twice, i.e., same candidate voting.” “double See id. While explicitly explained opinion, our it seems that the procedure 1216(e) set forth in for casting write-in votes makes it particularly difficult to ascertain if double has voting occurred because it provides separate, write-in votes to be cast on irregular ballots rather than on the voting machine. See 25 3056(e) voter lever on (explaining although pulls
P.S.
candidate,
voter wishes
machine to vote for listed
when
voting
vote,
irregular
he must do so on an
ballot
to cast write-in
in or on
receptacle
voting
in a
deposited
provided
must
machine). Thus,
in an
counting
an election official
votes
1216(e)
any
must look both at
applies
election in which Section
on an
on the machine and at
write-in votes cast
votes cast
ballot, in
to determine if a voter has double
irregular
order
voting
we noted that the
machines used
Although
voted.
mechanism
once a voter
locking
whereby
the election had a
vote,
a write-in
the machine locked so
raised a slide to cast
could not cast a vote for a candidate whose
voter
1216(e)’s
machine,
bar
name was on the
we found that Section
*11
a
write-in votes for listed candidates “erected
consid-
against
the locking
erable
the failure of
mecha-
safeguard against
contrast,
In
we noted that
nism.”
In statute case, 1112-A(b)(3), we out that initially point although Section a to cast a vote specifically it does not authorize voter write-in ballot, already a whose name is on the it printed for candidate must be voided also does not declare that such a write-in vote Thus, to may contrary and not be counted. Shambach’s 1112-A(b)(3) otherwise, find that claims we do not Section that write-in votes cast for listed candidates plainly requires 1112-A(b)(3) further note that cannot be counted. We Section 1003(e) 1216(e) was enacted after both and Section as Section in Appeal Appeal Yerger well as our decisions James and of of statutes, respective yet those General interpreting
397 A(b)(3) on language modeled the in Section Assembly 1216(e). 1003(e), that in Section rather than that in Section 1112-A(b)(3) 3031.12(b)(3), ie., § Section 25 P.S. Compare (when vote, a add name may a voter “the casting write-in of ”) on the ballot already printed not any person for office 1003(e) ie., added), 2963(e), § Section and 25 P.S. (emphasis (in any “elector insert the name space, may an the write-in ballot as name is person printed or whose persons added), ”) 25 P.S. with (emphasis a candidate such for office (“no 1216(e) 3056(e), ie., ballot shall be irregular § Section office, person any for for whose voting any machine cast on office, as candidate on the machine appears name ”) be and not shall void counted ballot so cast added). below, we Court Like Commonwealth (emphasis be in this to Assembly’s respect that the General decision find fact, agree In we with the Commonwealth significant. Assembly’s to can from the General decision presume that we 1003(e) 1112-A(b)(3) that it in- after model Section Section 1112-A(b)(3) way interpreted to be same tended Section 1003(e) James.16 See Appeal interpreted that we Section 1922(4); Borough Aliquippa, Appeal Pa.C.S. (1961). we hold that Accordingly, A.2d 1003(e), 1112-A(b)(3), liberally must like Section therefore, vote, and write- protect right voters’ construed as long candidates be counted so may votes cast listed fraud. sign intent clear and there is no the voter’s *12 1112-A(b)(3) must be that Section argues Shambach While 1216(e) the reasons we found to like Section because construed 1216(e)’s also Yerger bar in Appeal Section substantiate 1112-A(b)(3), refuse a bar to Section we pursuant substantiate 1112-A(a)(3), Significantly, which concerns write-in votes Section i.e., systems, voting systems paper purely where made on electronic used, language mirroring that ballots and ballot cards are contains 1216(e). 3031.12(a)(3) ("No § P.S. write-in vote shall in Section See 25 office, any person any voting whose name on a device for for be cast office, the as a candidate for that ballot appears on ballot label added). such, counted.") (emphasis be void As it is cast shall and not so Assembly, it apparent at the time enacted Section General 2—A(b)(3), expressly prohibit knew write-in votes for candi- how to simply already chose not to do so dates listed on the ballot and 1112-(A)(b)(3). Section 1112—A.(b)(3) to prohibition read an all-out into Section where one explicitly required, particularly given is not this Common- the longstanding policy wealth’s to elective protect franchise. Furthermore, that for simply agree we do not the reasons 1216(e)’s respect Section bar are to present with Section 1112- A(b)(3). 1216(e), 1112-A(b)(3) voting
Unlike Section governs systems voters cast on or paper where their votes ballots cards, tabulating ballot but automatic to equipment is used count the votes. Pursuant to an optical scanning system, which 1112-A(b)(3) is the that the type system of Section was used in case, instant either place punch voters a mark or a hole the ballot cards in an oval next to the of the name candidate choice, their “an ballot optical scanner the cards.” read[s] In Pennsylvania re: Election Snyder County General for Commissioner, A.2d at 596 n. 5. The ballot cards have also a line on them voters to cast write-in votes. See P.S. 3031.12(b)(3). However, as the Commonwealth point- out, ed a ballot read “although scanner can marks properly on, in, placed card, or holes properly punched ballot ballot scanners cannot read write-in In re: Pennsylvania votes.” Commissioner, Snyder County General Election Thus, at 596 n. 5. an election official must always review ballot card a write-in been where vote has cast in to order Moreover, tabulate that are vote. because write-in votes cast on that also ballot cards contain votes cast for listed candidates, the election official may easily examine the entire ballot card to voter determine whether a has impermissibly circumstances, double voted.17 these it is apparent Under case, the tabulation the write-in votes at issue the instant unlike the tabulation of the votes write-in cast in Appeal of argues tabulating 17. Shambach the election official the write-in votes provision cannot examine entire ballot there is no because However, requiring agree Election Code him to do we so. cannot space provided that the official must limit his review ballot to simply directing for write-in votes because there is no statute him Rather, look elsewhere on ballot. we find that the must official so, always review the entire ballot if failed to because he do there would way be no clear discern if the cast the voter who write-in vote double voted. *13 voting system the efficiency of the not undermine will Yerger, for a one vote more than to cast for voters it possible or make decision drove our Thus, concerns that the candidate. single in Appeal candidates for listed votes write-in prohibit to to optical respect with present not simply are Yerger here. used scanning system that below Court sum, with Commonwealth agree
In we allow for 1112-A(b)(3) liberally construed must be a candidate behalf of made on write-in votes calculation of fraud no evidence of there is ballot where listed on a already Moreover, in the because is clear. voter’s intent and the claim, the evidence does case, does not instant Shambach write-in votes show, containing ballots that the ten any way, cast in improperly fraudulent or Bickhart were ten who cast the that the voters court found the trial because Bickhart, hold we to vote clearly intended votes write-in that these determined properly the Commonwealth counted for Bickhart. votes must be ten is affirmed. Court’s order The Commonwealth dissenting opinion. a files Justice CAPPY Chief dissenting opinion. files Justice CASTILLE concurring opinion. files a NEWMAN Justice concurring opinion. files Justice SAYLOR opinion. dissenting EAKIN files a Justice NEWMAN, Concurring. Justice simply I write separately join majority opinion.
I
I
between
perceive
important
an
distinction
highlight
(1954),
James,
and Appeal
There shall also be left at the end of each group candi- (or dates for each other office under the title of the office itself case no therefor), candidates have been nominated as many blank as spaces there are to persons be voted for office, for such in which space may elector insert any name of or person persons printed whose name is not on the ballot aas candidate for such office. 2963(e) added).
25 P.S.
(emphasis
This Court “observed
that although James’ name is reproduced
ballot,
twice on the
he received
one
only
vote. On what possible
can he
theory
X,
denied that one
which was the
expression
honest
of the
James,
citizen
to
desiring
vote for him?”
In Yerger, a voting machine case decided twenty years after in which William Yerger (Yerger) and Norman Fre- (Fredrick) drick ran for the single office of Jackson Township Tax Collector. Yerger was declared the by victor a two-vote margin, but Frederick appealed, contending that eight write-in Fredrick cited improperly him were discarded. votes cast for clearly cast for that write-in votes proposition for the ballot are already appears name a candidate whose would violate the and that to hold otherwise valid absent fraud relied on the Yerger uniformity clause Constitution. 1216(e) Code, which of the Election of Section plain language that: in relevant provides part office, any person ... vote for may
A voter the voting not appear upon which office his name does candidate, irregular containing an ballot machine as in or upon written or affixed person deposited, name of such *15 in or on the or device receptacle provided the appropriate [N]o manner.... that and no other purpose, machine for voting machine for irregular ballot shall be cast on a office, any any appears on the person for whose name office, and so for that ballot machine as candidate be void and not counted. cast shall added). 3056(e) (emphasis 25 P.S. to count the ballots favor of eight
This Court refused Frederick, not re- uniformity clause did concluding and machine ballots quire paper voting courts to treat ballots James, which dealt with ballots distinguished paper alike. We as follows: in treatment easy
It is
to find such a basis for the difference
Allowing
of write-in
ballots and machines.
paper
votes on
on the machine would
appearing
write-in votes for those
the
required
increase the time and effort
to count
votes.
voting
the
and efficient means
By ignoring
speedy
by the
of the
provided
regular operation
such candidates
would,
machine, the
an
vote
to that
casting
irregular
voter
extent,
machines.
very purpose
using voting
defeat the
carefully
drawn
dealing
comprehensive
When
with
elections,
the conduct of
we must take
legislative scheme for
of the scheme
particular
care not to consider the
elements
to their
in the entire structure. Other-
regard
place
without
deviations,
wise,
be frustrated
legislative plan may
the
each
reasonable
itself but destructive
seemingly
carefully designed structure.
that,
Yerger, predecessors Our noted theo- retically, a voter could in a manipulate voting machine manner such that he or she would be able to vote twice for one position.1 protect against To that ma- possibility, voting chines were with a equipped locking whereby mechanism act of lever raising option voting write-in eliminated However, for a pre-printed candidate. believed that Court by forbidding write-in votes for candidates whose names al- ballot, ready appeared legislature on the had “erected a considerable the failure of the mech- safeguard against locking anism.” Id. This held that double precautions against Court ballots, voting “are when with unnecessary dealing paper easily because it if any determined ballot contains more votes for a office than” given permitted. the number Id. effect,
In Yerger says allowing that where a write-in vote for a candidate already on the ballot could lead to double voting uncovered, is not the Election easily provisions Code ballots so marked should be followed. voiding strictly Yerger contrasts ballots in paper general by explaining ballots an paper easy allow for determination of whether a ballot contains more votes for a office than are given there persons entirely be elected. While not made clear from the that, of this Opinion Yerger, appears it if the locking *16 failed, mechanism it would be difficult to recreate the ballot to ascertain whether the voter The present double voted. situa- tion is akin Yerger. more to James than James,
In each elector was entitled to vote for four persons, alia, ballot, paper so when each inter the vote inspecting (1) tabulators had to ensure that: the voter cast no more than votes; (2) four and the voter did not cast more than one vote any person, by marking whether name or pre-printed inserting a name in the write-in section. In the sub case judice, optical scanner could establish the number of votes any position cast for and indicate whether each vote was for a write-in, candidate or a pre-printed which would have to be lever, vote, 1. The voter could raise the write-in cast a write-in and then permit voting pre-printed lower the write-in lever to for a candidate for office, register position. which would two votes for the same by regardless hand because scanner cannot read inspected Thus, the vote tabulators would need to write-in votes. only those ballots where a voter voted for a write-in inspect the generated candidate. of the ballot or Upon inspection (1) thereof, the vote tabulator would ensure that: printout (2) votes; voter cast no more than and the voter did not two for any person. cast more than one vote the crucial distinction between James I believe that Yerger is that in Yerger there was a that the voter possibility could in fraud or to vote twice for the same engage attempt it way candidate such a that would not be obvious to the In every
vote where ballot was manually tabulator. inspected, readily it would be to the vote counters apparent engaged whether individual voter in fraud or attempted Likewise, case, present double vote. because the vote tabulators would review every ballot with write-in indication name(s) written-in, to ascertain whose had been the concern over systematic voting undiscoverable fraud double and/or was not present. Accordingly, the concerns articulated in Yerger are not and, thus, here I abide implicated would rule we announced in James. power to throw out a ballot for minor irregularities
“[T]he should be used. It sparingly only very should be done Boxes, In Open Re Petitions to Ballot compelling reasons.” 62, 254, (1963). 410 Pa. 188 A.2d “Marking a ballot in is a matter not voting precision but of an engineering unmistakable of the voter’s will in registration substantial requirements.” Appeal Gallagher, conformity statutory 630, (1945). 351 Pa. 41 A.2d In construing election laws while we must all strictly provisions enforce to prevent fraud our concern at all overriding times must be to be flexible in order right to favor the to vote. must goal Our be to In Re Elec- enfranchise and not to disenfranchise. General tion, 6, November (1972). mind, these principles
With
lodestar
it is clear that the
In Yerger, this Court
invalidation of a vote is a last resort.
*17
efficiency
invalidated to ensure the
and integrity of the
and,
elective process. Those concerns are not here manifest
a write-in candi-
therefore,
for Bickhart as
the ten votes cast
fraud,
counted,
of
there is no indication
because
should be
date
marked,
only
and
one
not
name was
pre-printed
Bickharts
denoted;
voter on
the intention of the
for Bickhart was
vote
unambiguous.
is
plain
each ballot
SAYLOR, Concurring.
Justice
dissent,
I
Unlike
Justices
join
majority opinion.
I
negating
or
rewriting, invalidating,
not as
opinion,
read that
rather,
Code,
1112-A(b)(S)
but
as
of the Election
by
long-settled
rule of law established
orderly
applying
(1954),
405,105
Pa.
A.2d
Appeal
precedent
A(b)(3) as directo-
of Section
requirement
to construe the
in the aftermath of an election.
mandatory,
ry, and not
Code, no
Election
Pennsylvania’s
I
regard,
In this
note
other,
phrased
with
steeped
requirements
is
less than
requirements
of the technical
only
not
terms
imperative,
overall conduct
also in terms of the
but
completion,
for ballot
It
§§ 2600-3595.501.
25 Pa.C.S.
generally
elections. See
Assembly
to assume that
General
be unreasonable
would
that,
every
requirement
each and
such
unless
thus intended
elections, election
conducting the
adhered to
those
strictly
Indeed,
widely accepted
it is
void.1
must be deemed
results
may
for the conduct
elections
statutory provisions
that most
after the con-
mandatory,
and not
directory,2
as
regarded
election,
declares that
expressly
the statute
an
unless
duct of
validity
to the
is essential
requirement
the particular
on the election result.
election,
impacts
as such
or the violation
are,
7(4) (2003) ("Election
§
laws
as a
29 C.J.S. Elections
1. Accord
rule,
though mandatory
merely directory, even
general
considered to be
id.
("In
may
form.");
election laws the courts
the construction of
regulations imposed are not conditions
sight
lose
of the fact
not
being,
regula-
right
are
comes into
but
compliance with which the
right
orderly
regulate
in an
merely to
the exercise of
intended
tions
interpreted as to defeat the
way,
laws should not be so
and the election
enactment.”).
very object of their
which,
they are intended to be
Directory provisions are those
while
election,
during an
do
if raised before or
obeyed,
will be enforced
require
of the election or disenfranchisement
invalidation
29 C.J.S.
in the election aftermath.
See
where discovered
electors
214(2) (2003).
Elections
*18
405
Statutory
J.
3A Sutherland
generally Norman
See
Singer,
(6th ed.2004);
26
73.8
Construction,
Elections
Am.Jur.2d
(2003).
(2003);
§ 67
§ 317
29 C.J.S. Elections
law that
of election
provisions
that some
accepted
Once it is
directory
really must
deemed
imperative
are
in the
phrased
the
critically,
legislative
(including,
the
purposes
in
for
order
electorate)
it be-
be accomplished,
to
enfranchisement
interpreters
an
function of the
that it is
inherent
comes clear
(the
mandato-
between the
judiciary)
distinguish
to
of the law
the
criteria. This is
what
directory
precisely
ry and
statutory language
construing
did in
James in
Appeal of
from
case,
distinguishes
and it is what
issue in this
537,
(1975),
latter
A.2d 902
333
Appeal Yerger,
of
did
in
the Legislature
a statute
which
of which concerned
consequence
choose to direct the
of disenfranchise-
expressly
Hynes,
v.
Flanagan
generally
ment for nonobservance. See
(“If
(1903)
584,
737,
is to be
A.
738
there
75 Conn.
54
disenfranchisement,
has
legislature
it should be because the
and
an
suffrage,
it
the interest of
honest
require
seen fit to
requirement
language.”).
that
unmistakable
has expressed
election
particular
merits
whether
On the actual
of
or direc-
mandatory
review should be deemed
provision under
made
arguments
there
to be
tory, I note that
are reasonable
I
is correct
strongly
majority
But
feel
that
both sides.3
Certain-
precedent Appeal
to follow the decided
of
James.
of
ly,
necessary exceptions
princi-
are
and
to
legitimate
there
v. Samu-
generally
of stare decisis. See
Commonwealth
ple
J.,
els,
109, 141-42,
638,
(2001) (Saylor,
659
Pa.
778 A.2d
566
stability
dissenting).
purposes
predictability
But
Indeed,
result in
decision
I was able
concur in the
the recent
4, 2003,
Election, 577 Pa.
Absentee Ballots
Nov.
General
Canvass of
disenfranchisement,
(2004),
in a
which did result
Chief Justice Dissenting. I respectfully dissent. Like Justice Castille and Justice Eakin, I believe that the majority opinion essentially fails to in the engage that analysis this court has no choice but to make in resolving this case—that of statutory construction under Pennsylvania’s Statutory Act of § 1972. 1 Pa.C.S. .1501 et seq. When such an analysis 3031.12(b)(3) § of 25 P.S. is made, faithfully the outcome can only be that the ten write-in votes in question are invalid and must be struck. Simply put, the majority ignores that the 3031.12(b)(3) § words of 25 P.S. are “clear and free from therefore, all ambiguity” and cannot be disregarded under pretext of pursuing the spirit the Election 1921(b). Code reflects. 1 § See Pa.C.S.
I recognize
analysis
I would follow and the
I
result
would reach in the present appeal
contrary
to this court’s
James,
decision in Appeal
405,
(1954).
377 Pa.
I dissent. hard cases that were cases and great no less than the dictum, make bad law. can Holmes’ famous subject Justice 400-403, 24 S.Ct. v. U.S. 193 U.S. Northern Securities Co. (1904) (Holmes, This dissenting). L.Ed. 679 J. clearly here The statute issue easy. case should be only can write in “the the voter unambiguously states for that on the ballot already printed any person name 3031.12(b)(3). fact that there is Despite office.” 25 P.S. statutory provision, in the of this ambiguity wording no *20 only hence, “construe,” eviscerates the Majority to the nothing have, articulating any can without language meaning plain doing basis for so. jurisprudential holding ambiguity, Majority’s there no
Because is This of a act. Court judicial negation legislative amounts to a to strike occasionally duty, clearly power, has the "[tjhat 1922(4), provides § majority 1 Pa.C.S. which 1. The relies on statute, language used in a court last resort has construed when a of subject matter Assembly subsequent on the same the General statutes language----”, placed upon such construction to be intends same 3031.12(b)(3) § Assembly P.S. presume that the General intended 25 to interpreted way 25 P.S. interpreted in the same the court to be 801-02.). 2963(e) disagree. (Majority Opinion I § at in James. 1922(4), presumption depends § use of Under the clear terms language ha[ving] used "a of last resort construed on court view, 1922(4). my did not § In the court 1 Pa.C.S. statute.” it, 1922(4) requires. language before as construe the of the statute Therefore, present presumption cannot be used in the I believe that the case. 408 However,
down a
may
statute.
we
do so
only
grounds of
Associates,
unconstitutionality. See
Uniontown
Gustine
Ltd.
Rental, Inc., L.P.,
(Pa.
334,
v. Anthony Crane
842 A.2d
347
2004)
Commonwealth,
(citing
v.
Dept.
Transportation
Tay
lor,
108,
(Pa.2004) (“Absent
841 A.2d
113
a valid constitutional
objection ...
it is
our
not
role to second-guess
legislative
th[e]
judgment.”)).
Notwithstanding
entertaining expressions
405,
found
this Court’s decision in Appeal
377 Pa.
(1954),
The Majority never identifies the constitutional
infirmity
it to
requires
construe this statute
if it
as
said the
opposite of what it plainly provides. Acts of the General
constitutional,
Assembly are
presumed to
and the party
alleging unconstitutionality has the heavy burden to prove
(Pa.
otherwise. See
v.
Ieropoli
Corp.,
AC&S
In addition to the Court’s failure to articulate a constitution- al basis for striking legislation, down this the Majority Opinion fails as a matter of “statutory construction.” When interpret- ing statutory language, “the best legislative indication of in- tent is the plain language statute.” [the] Commonwealth v. Co., Manufacturing Gilmour Pa. 822 A.2d (2003) Blom, (citing Bowser v.
(2002)). Statutory phrases “[w]ords and shall be construed 1903, to rules of according grammar,” § 1 Pa.C.S. and “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of
409 1921(b); v. Scheipe § see also 1 Pa.C.S. spirit.” its pursuing (1999). Moreover, 475, 112, Orlando, A.2d 478 559 Pa. way as to of a statute such language must view the courts 1921(a); 1 § 1 Pa.C.S. provisions. effect to all of its See give see, also, 1922(2); Manufacturing, § Pa.C.S. Gilmour of protect tradition this Commonwealth’s A.2d at 679. While con liberally to may oblige courts the elective franchise ing vote, only that is so in favor of the to right strue election laws statutory language trigger in the ambiguity there is an where Absentee In re Canvass construction. See ing statutory of Election, 577 Pa. Ballots November 2003 General of cases). Indeed, (2004)(collecting Canvass A.2d 1223 of Ballots, rejected a contention expressly Absentee we liberally the Election Code construing “well-settled practice to torture required to vote” right in favor of in the section appeared the word “shall” as it meaning of 1231,. Absentee at issue there. Id. Canvass Code the law will be things being equal, reaffirms that “all Ballots but, at the to vote liberally right construed favor time, the Elec cannot the clear mandates of ignore same we that there is a Majority at 1231. The is correct tion Code.” Id. overriding this Commonwealth longstanding policy franchise,” Petition Cioppa, the elective protect (1993). But this does not empower alone 1112-A(b)(3) of invalidate the Code. this Court Section statute, Rather, in a it must be ambiguity where there is no provision to its terms unless it violates according enforced Gustine; Taylor. the constitution. See 1112-A(b)(3) a clear and logical voters with provides listed actually a vote for candidate casting choice between alternative, or, a vote for a writing-in in the on the ballot on the ballot. 25 P.S. appear whose name does person 3031.12(b)(3). thus limits write- unambiguously § The statute on the already names are not in votes to candidates whose arcane restriction: This is not an unusual or printed ballot. 3031.12(a)(3) indeed, id. throughout it is found Code. See (in are where votes using voting systems districts electronic votes for candidates whose electronically, write-in registered *22 counted); names on appear ballot shall not cast or id. (e) (on 2963(a), ballots, § paper may voter write-in name of ballot); 3056(e) (in person already appearing not on id. districts, machine voting may voter cast irregular ballot order to write-in name of candidate not already appearing ballot). The legislative intent behind such a restriction seems manifest. In promoting efficiency addition to in vote tabu- lation, limiting write-in votes to whose names are persons not listed on the ballot is a safeguard against confusion and double-voting. There is no reason to write-in names that Moreover, already appear on the ballot. in a state with voters, millions of have the many people same name. The system provides place by means which voter intent can be discerned where an identified candidate has a common name.
The restriction is sensible where particularly electronic voting and tabulation is Machine employed. counting offers prospect greater speed accuracy than manual the more counting: ballots that must be reviewed human means, (such Also, system. the less efficient the in elections here) contested, as the one where more than one seat confining write-in votes to way candidates listed is one that a ensuring voter cannot cast one vote for a named candidate electronically, and a second vote for the same candidate via the write-in option. the lack of
Notwithstanding ambiguity Section 1112- A(b)(3) and its obvious salutary purpose, Majority tortures of the language provision permits until it a voter to do forbids—i.e., exactly what its language plainly to write in the name of a whose name is person already printed on the ballot. The Majority’s results from its reading ignoring the actual language of the provision under apparent pretext pursuing object some non-constitutional to which we according join must construe the election as laws a whole. I in Mr. Eakin’s Justice view his dissenting opinion “plain, lucid, unambiguous” of this language provision should control outcome, Majority’s and that the radical reconstruction of entirely statute is inappropriate Appeal here. See (1975) (“ Yerger, 460 Pa. technical- ‘[t]he (and are are they many) necessary ities of the Election Law of the ballot and preservation secrecy purity for the ”) must, therefore, be observed’ meticulously (quoting Weber (I960)). 37,159 A.2d Appeal, obligation Instead of our to enforce statutes as abiding by written, the this statute to actually Majority re-writes serve needs of an individual case. perceived generally Statutes *23 not, be, are a myopic eye single and cannot written with to a scenario. The fact that believes that it can Majority determine the intent behind the ten anonymous, miscast votes here does not mean that the Assembly overstepped General its constitutional in to erect seeking general system bounds a of voting reliability, efficiency, that ensures and the absence of I Majority fraud. do not know—nor does the know—how may County citizens in are named Snyder “Shambach” and how But, many are named “Bickhart.” write-in voters are not in they may They may limited whom name. write in a name minor; of person eligible not even to hold office: a a non- resident; Indeed, or a nothing fictional character. exists to Fudd, prevent voting joke, them from for Elmer as a protest, or an act of civil disobedience.
The Majority’s misplaced confidence that it can read the mind and intention of these unnamed voters who deliberately chose not to vote for the Bickhart actually listed and identified on the ballot is a hardly ground reliable establishing general, statewide to the approach question presented. The next may contest involve thousands write-in votes and more common candidate names. We can assume that the General Assembly considered prospect, this and in negating stat- ute, the Majority sight has lost In prospect. place, its Majority has reposed power the courts to substitute their own judgments as to what individual voters intended. scheme, the legislative Under there is a logical presumption that a voter who writes a name in intends to vote for a different candidate than the one listed. That presumption should be permitted operate.
The
authority
sole
supporting today’s judicial
negation
Sectionlll2-A(b)(3)
the only possible
meaning
is our 50-
James,
405,
Notably (2) 1003(e) ambiguous, was language er the of Section which this Court grounds upon of the constitutional expression *24 As with so nullify unambiguous language. empowered was Musmanno, late Michael A. the of the Justice many opinions read. But entertaining in makes for an language broad sensitivity in to the opinion sorely lacking the is unfortunately, issues important of and the constitutional separation powers The James Court did not holding. dispute the implicated by 1003(e) the votes prohibited of plain language Section Rather, Court, judicial imperial- in the in an act of question. ism, the statute to Like- permit operate. refused to simply 1112-A(b)(3) wise, Majority today simply negates the Section of the ambiguity a of or an identification finding without like to think for such activism. I would constitutional basis James, that, since half-century passed in the that has understanding respect and for developed greater has a Court powers restraint and of concerns. judicial separation actually was mani- understanding respect That and greater Yerger, A.2d 902. in decision in 333 fest our 1975 approach, Yerger is the opposite In terms of its jurisprudential
413 Yerger James and today’s Majority Opinion, of James. Unlike recog- construction and statutory of applied principles both judgment legislative to the nized that a measure of deference This is may a be struck down. before statute required is James and this in Yerger—unlike because notable particularly constitutional challenged specific was on case—the statute system, and the Yerger involved voting machine grounds. there, 1216(e), contains a at issue Section section Code 1003(e) 1112-A(b)(3). restriction identical both Sections Yerger 3056(e). here, As in James as See 25 P.S. certain write-in was with the of whether question faced Court 1216(e), votes, were valid. cast in violation Section allegedly cast Yerger argued the write-in votes The appellees 1216(e) because, light must be counted violation of Section James, the requirement would violate a different conclusion VII, found in Article in laws elections uniformity regulating found Pennsylvania Constitution.1 This Court Section 1216(e) that it was unambiguous to be and concluded its words unless that full effect in accordance with given “to at A.2d result the Constitution.” prohibited challenge, Turning appellees’ uniformity to the like treatment uniformity only requires noted that the clause present, emphasizing circumstances” are where “same where is not forbidden to draw distinctions Legislature “the on basis.” 333 in treatment rests some substantial difference Kane, (1949)). v. Kerns A.2d (citing A.2d at validity Although Yerger question paper did not that there was indeed the Court found holding ballot treatment to write-in affording substantial basis different are issue: votes where machine ballots ... difference in treatment It is to find a basis easy Allowing ballots and machines. paper of write-in votes *25 already] for appearing [candidates write-in votes those the and effort to required the machine would increase time efficient ignoring speedy count votes. the By the VII, Pennsylvania provides, Article Section 6 the Constitution with of here, holding regulating exceptions not relevant that laws the of "[a]ll throughout ... be the State....” elections the citizens shall uniform voting provided by regular means such candidates the machine, an operation the the voter casting irregular vote would, extent, to that defeat the very purpose using voting machines. addition,
Yerger,
Yerger
The distinguishes Yerger it because involved a system machine than voting rather an optical scanning system ballots, employing paper that, as here. Majority posits The system Yerger, unlike the used in the paper balloting system always here an requires election official to review ballot. such, the As Majority finds the concerns animating Yerger do exist in the instant But case. the Majority the more misses fundamental jurisprudential point—Yerger evidenced, not, where today’s Opinion James and Majority do ironic, least, judicial It say restraint. that a specifi- cally identified constitutional challenge Yerger, failed while "locking Yerger prevented 2. The mechanism” adverted to in double- voting listing follows. as Above the line on the machine the candidate’s which, pushed up, name was a slide when the voter enabled to case a raised, vote. supposed write-in When that slide was it was also to lock machine, i.e., prevent registering by activating a vote the lever for Notwithstanding of the listed candidates for office. this me- safeguard, Yerger proscription against chanical Court deemed the considerable, additional, votes for write-in listed candidates to be a if against safeguard double-voting. *26 negat- in succeeded challenges non-constitutional amorphous, again have apparently the at issue in ing legislation system separated If were not a today. ours succeeded is,As currency. have might Majority’s the distinction powers, backwards jurisprudential step is a Majority’s approach the from Yerger. in a voting” fraud or in fact exists
Whether voter “double statutory The dispositive Yerger.3 not in given case was in repose in and here not Yerger issue do provisions at attempt to free-ranging or the power ballot examiners courts vote has intent rule out fraud when a to ascertain voter or election statute. While explicit been cast in violation an in realm of the fundamental voter intention is the paramount vote, necessarily intent assumes to right ascertaining the at issue By enacting proscription ballot. properly cast here, the factors Assembly presumably weighed the General Assembly the decid question. on that What General bearing in the or the not do is vest executive edly did discretion or determining to those factors whether judiciary reweigh substan distinguish among not to vote. To particular count the the basis of tially provisions identical Code the thereof, or potential, assessment the lack judiciary’s fraud; thereof, to ascertain ability, accurately or lack intent; practicality examining voter or nature and used, voting system ballot depending upon type Assembly ignore provided the fact has General infirmity—and inquiry. such an Absent constitutional argued authority reshape none been here—we have no has Assembly. system adopted by the election The on a factual Majority Yerger also based distinguishes verbiage statutory provisions difference in the at issue. 1216(e), which Yerger, was at issue includes additional instruction with to write-in ballots that respect the name of a candidate: ballot so cast duplicate “any listed 3056(e). The shall and not 25 P.S. be void counted.” Indeed, possible if Yerger did not whether it was to ascertain discuss double-votes, any eight even contested votes there involved or attempt vote. to double that, A(b)(3) Majority concludes because Section 1112 does not 1003(e) contain similar language—as Section did not James—it not plainly does write-in require votes for listed candidates to be invalidated. But the Yerger Court did not discuss this statutory disparity or consider it grounds for *27 Moreover, distinction. the distinction is Even illusory. 1112-A(b)(3) though Section does not say “void and not count- ed,” the explicit it proscription enacts can have meaning only if improper votes are not counted. It is absurd say to statute permit does not write-in candidate, votes for a listed but that those votes must be counted despite violation of the proscription. 1216(e) The redundancy in Section does not 1112-A(b)(3). somehow to operate create ambiguity Section distinction, Finally, factual if even it had currency, does not create power this Court to strike down otherwise constitutional legislation.
The Election Code was enacted to ensure the accurate and efficient ascertainment of voter intention while simultaneously erecting protections against the dangers of confusion and vote fraud. When faced with an or ambiguity uncertainty in the Code, our task is to strike the proper balance between protect- ing the elective franchise and enforcing salutary directives When, however, of the Code. the statute is unambiguous does not suffer from constitutional infirmity, our task is to For, enforce the clear mandates of the Code. as we stated in Yerger,
When with dealing a comprehensive and carefully drawn legislative elections, scheme for the conduct of we must take care not to consider the particular elements of the scheme without regard to their in the place entire structure. Other- wise, the legislative plan may deviations, frustrated each seemingly reasonable itself but destructive of the carefully designed structure.
Id. 1112-A(b)(3) unambiguously states a voter can- not write-in a vote for a listed candidate. The Majority Opinion nonetheless holds that a voter may do so. In negat- statute, ing the Majority does not ambiguity find nor does judi- might permit constitutional violation identify it essential predi- Absent such provision. of the negation cial meaning cates, negate plain to power lacks the this Court dissent. respectfully I provision. the instant and effect of EAKIN, Dissenting. Justice lucid, unambiguous phrase has taken the majority plain,
The on the ballot” already printed any person “the name of make it mean “the name “liberal to interpretation” and used or not.” on the ballot already printed whether any person judicial alchemy it is liberal interpretation; This is not I subscribe. which cannot give should not rise that are clear
Legislative phrases phan- pursuit much less the judicial reinterpretation, clear- legislature speaks intent. legislative tasm of When here, wishes to divine as it matters not what a court ly, as intent, sympathetic of a pursuit collective whether their *28 legislative prerogative or not. It is an invasion of the result an opposite words into transmogrify unambiguous clear result.
Appeal Eric John Robert of Thomas Beck, Benjamin Francis Casole. Pennsylvania.
Supreme Court of March