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ZALESKI v. KILGORE. (05/21/62)

THE SUPREME COURT OF PENNSYLVANIA


May 21, 1962

ZALESKI, APPELLANT,
v.
KILGORE.

Appeal, No. 216, March T., 1962, from decree of Court of Common Pleas of Westmoreland County, No. 3161 in equity, in case of Edward Zaleski, Alfred Colaianni, Earl Hill et al. v. Robert A. Kilgore, Jay W. Kromer and William C. Henderson, County Commissioners and County Election Board of Westmoreland County. Decree reversed.

COUNSEL

H. Reginald Belden, with him Louis E. Sensenich, and Daniel R. Edwards, for appellants.

A. C. Scales, Special Counsel, with him P. K. Jones, for county commissioners and county election board, appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Cohen

[ 407 Pa. Page 525]

OPINION BY MR. JUSTICE COHEN

Plaintiffs-appellants, qualified electors of three communities in Westmoreland County, appeal from the decree of the lower court dismissing their complaint in equity wherein they sought a preliminary injunction to restrain the county commissioners, constituting the county election board, from substituting paper ballots for voting machines in the 1962 primary election.

Pursuant to the authorization contained in the Election Code of 1937, June 3, P.L. 1333, § 1102, 25 P.S. § 3002, the voters of New Kensington, in 1953; of Arnold, in 1954; and of Lower Burrell, in 1956, adopted

[ 407 Pa. Page 526]

    by referenda the use of voting machines. Since the time of their purchase by the county commissioners and approval by the secretary of the Commonwealth, voting machines have been used in all primary and general elections within these communities. The qualified electors of said municipalities have not voted to discontinue the use of the machines.

In early 1962, the county commissioners, acting as the county board of election, decided that paper ballots were to be used in the forthcoming primary election. The ostensible reason for the commissioners' action was to "eliminate the confusion resulting from write-in candidates on the voting machines at primary elections. ..." Notwithstanding widespread protests from electors in the affected communities, the commissioners ordered ballots printed for the primary. This class action followed.

As long ago as Davidowitz v. Philadelphia County, 324 Pa. 17, 187 Atl. 585 (1936), this court said in reference to voting machines: "These machines expedite the count, are helpful in reducing the possibility of election frauds, and their employment should be encouraged. They have been installed in the various counties at great expense and by vote of a majority of the electors thereof. A court, therefore, should not restrain their use unless a legislative or constitutional provision is clearly violated."

The legislature did foresee that certain situations might arise where voting machines could not be used in an election and provided in the Act of 1937, June 3, P.L. 1333, § 1116, 25 PS § 3016 that: "If a method of election for any candidates or offices is prescribed by law, in which the use of voting machines is not possible or practicable, or in case, at any election, the number of candidates nominated or seeking nomination for any office renders the use of voting machines for such office at such election impracticable, or if, for any other

[ 407 Pa. Page 527]

    was improper. Accordingly, we have reversed the decree of the court below and have entered the following order:

AND NOW, to wit, 24th day of April, 1962, the decree of the court below dismissing the complaint in equity is reversed and record is remanded to the court below for the entry of an appropriate decree (a) revoking the action of the County Commissioners of Westmoreland County of February 23, 1962, acting as the County Board of Elections, ordering paper ballots to be substituted for voting machines in the primary election to be held May 15, 1962; and further, (b) directing that the primary election to be held on May 15, 1962 be conducted by the use of voting machines in all the election districts of Westmoreland County where voting machines have been approved for use in accordance with law.

Disposition

Decree reversed. Costs on appellees.

19620521

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