*1 Wieskerger Appeal. Wyoming Area School Director Election. Jones, C. J., 1972. Before January Argued Nix Mander- Roberts, Pomeroy, O’Brien, Eagen, JJ. INO,
Anthony B. with him Carmen John Pananoay, Maf- for fei, appellant.
J. Earl for Langan, appellee.
Opinion by Mr. Justice Nix, April 20, 1972: This is from the Luzerne Court appeal County of Common Pleas of the Luzerne affirming decision County Return Board in the Area School Wyoming Director Contest. The of six herein are two parties for aspirants the three to be filled in seats that were the general election held November 1971. 2,
A stipulation counsel provided; “1. It is and hereby agreed stipulated by and be- tween B. and John Anthony Panaway Maffei, Carmen for counsel and J. Earl counsel appellant, for Langan, there are 16 appellee, absentee ballots marked in either or red which have been green ink, counted in the for votes school director of Area in Wyoming the November 3.971 2, in election, resulted the elec- tion Casimir Kizis.
“2. It is further agreed and stipulated that the for this only question Honorable Court resolve is legality marking counting afore- in the said ballots election.
“3. is further agreed and stipulated that coun- for will withdraw appellant sel and does hereby with- any objections other they draw have to the decision County of the Luzerne Court Common in Pleas matter.” aforesaid election By virtue of the small the resolution this issue plurality will decide the This in contest. for third which is election seat under jurisdiction Appel Court assumed plenary P. L. 673, July Act 31, late Court Jurisdiction in deter §211.205, Art. to assist II, §205, mination the dispute.1 Election Code pro provision pertinent is marked as as No ballot which so
vides follows: “[a] be Any counted. be identification shall capable or ink, in blue-black blue, is marked lead pencil or or black pen, fountain pen or and counted."2 indelible shall valid pencil, the ballots marked objections to dismissing en banc red but ink, order, otherwise court on an ab the real test of the validity stated: “So it manner is not if sentee ballot marked this but of identific capable red or it is black, green, *3 ation."3 Case, in the Election Recount
As stated
to
out a ballot
3 opinion at 4. lower court’s See.
421
in marked
ballots
validity
assures
merely
appellant
as the
It does not
ink.
or blue-black
mark-
type
other
that any
to find specify
us
urges
in other
noted
have
We
be void.
necessarily
will
ing
is to
of this section
theme
dominant
cases that
should
“A ballot
identifiable.
from being
prevent ballots
Act of
1223 of
inva1',bated under Section
not be
the voter purposely
unless
§3063,
1937, supra
act
other
or commits some
makes a mark thereon
and identify
to distingush
connection with his
at 396 (1971).
today, particularly the electors are not involved we all, persuaded of red ink to render the use their herein attempted by of identification. ballots capable affirm the order of court en banc. we Accordingly, Opinion Pomeroy: Dissenting the Court’s opinion McKelvey joined While A. 2d 642 Pa. Appeal, I do not consider it control relies, opinion the present *4 respectfully I therefore dissent.1 and here, ling the Court held that the McKelvey, supra, writing on name the bottom of a of the person’s elector by 1 rely upon majority Case, Election also Recount 62, I 254 find 2d difficult 188 A. distin- Pa. 410 (now Justice) bar. Justice guish ease at Chief from Jones Reading, dissenting opinions by and in were filed a dissent noted 422 case render
ballot did not in the circumstances capable that ballot and thus violative identification, §3062(a). of the Election P.S. This Code, §1223, dealing same section detail Code, however, marking counting with the manner of and ballots, provides expressly a “in ballot marked ballpoint pen, pen or or or blue-black fountain ink, pencil pencil, black lead be or indelible shall valid legislature and counted: . . .” has, When the with such specificity, markings stated what ballot shall valid and it in effect in aid of counted, has also stated, secrecy of the cherished American that use of ballot, specified or inks other than those instruments is not permissible and that ballots so marked shall be in- valid and not counted. §1223 to I
That is be read as have indicated is borne by legislature out the form of official ballot which the prescribed by §1003 itself §2963. 25 P.S. Code, required printed The instruction to the voter to be following among each ballot contains the admonition, pencil, “Mark others: black lead indelible pencil pen or or blue, black blue-black in fountain ink, ballpoint pen. (Emphasis supplied.)2 or . . Thus the question presented here is not whether elector had purpose a to make the ballot or identifiable, whether particu- red ink did fact have that effect in this respect and Mr. Justice Roberts. With due Cohen Reading court, majority help of the cannot but feel wrongly case decided. was §1223 to be noted that Election Code was last (Act August 13, 1963, 707, §19, 19C3 P. amended E. 1971)) (Supp. by §1003 and that §3063 Code was amended statute, again July 16, in 1968 and the Act 1968, the same , At the §1. No. times of these P. L. amendments the use pens already inks of various colors was common- place. *5 T believe, lar are not relevant as if, case. Those factors the use of ink been red has interdicted. I con
While
of the
majority
endorse the desire
strue the
of a
validity
ballot,
Code
favor
liberally
there
Rob
must
rules of the
As
game.
erts
Elec
observed
his dissenting opinion
tion Recount Case, 410 Pa.
Mr. Justice joins Roberts this dissenting opinion. Balsbaugh Appellants et al., v. Rowland.