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July 27, 1964


Appeal, No. 329, Jan. T., 1964, from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1964, No. 5446, in re petition of Democratic County Committee of Philadelphia on behalf of all its endorsed candidated for nomination at the April 28, 1964 primary election in Wards 23, 25, 33, 35, 36, 41, 45, 53, 54, 55, 56, 57, and 58. Order affirmed.*fn*


Abraham E. Freedman, for Democratic County Committee, appellant.

Levy Anderson, First Deputy City Solicitor, with him Edward G. Bauer, Jr., City Solicitor, for County Board of Elections of Philadelphia County, appellee.

Philip Kalodner and Gregory M. Harvey, with them Robert J. Bray, Jr., Stanhope S. Browne, Joanne R. Denworth, and Ferdinand P. Schoettle, Jr., for candidate, Genevieve Blatt, appellee.

Tyson W. Coughlin and Edward E. Russell, for Committee of Seventy, amicus curiae.

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

Author: Bell

[ 415 Pa. Page 330]

ORDER, July 27, 1964:

The Order of the lower Court - which affirmed the unanimous decision of the Board of Elections which held that votes in a so-called blank row were invalid and void - is affirmed. Opinions to be filed later.

The Court,

(s) JOHN C. BELL, JR. Chief Justice

Mr. Justice JONES and Mr. Justice O'BRIEN dissent.

Opinion BY MR. CHIEF JUSTICE BELL, August 5, 1964:

This appeal involves the validity of votes cast in Row C - which is miscalled by the appellant a "blank" row - on voting machines in 15 wards in Philadelphia. An analysis of the facts and the law, as well as the prior decisions of this Court require an affirmance of the Order of the lower Court. That Order affirmed a unanimous decision of the Board of Elections*fn* which held that votes in the so-called (but miscalled) blank Row C were invalid and void.

[ 415 Pa. Page 331]

The Jamestown machine, which is involved in 13 wards, was set up as portrayed by the photographic exhibit of the voting machine which appears above and is made a part hereof. Row C (erroneously called by appellant "a blank row") is the row here involved. Row C was marked on the left in relatively small capital letters "SPECIAL ELECTION", and in enormous capital letters "REPUBLICAN". A long line was then drawn through the middle of this horizontal row with an arrow at the end pointing to a Republican candidate Edward H. Rovner, with a pointer or lever over his name. A photograph of the pertinent parts of the voting machine is attached and made a part hereof as above mentioned, and clearly shows how to vote for a Democrat, if that was the voter's desire.

Subsection (d) of Article XII, § 1216 of the Election Code (Act of June 3, 1937, P.L. 1333, 25 P.S. § 3056) provides as follows: "(d) At primaries, he shall vote for each candidate individually by operating the key, handle, pointer*fn** or knob, upon or adjacent**fn** to which the name of such candidate is placed."

If there had been, on the part of any voter, the slightest doubt concerning (a) the set-up of the voting machine, or (b) the sample ballot, or (c) the way to vote for the candidate of his choice, he could lawfully and without the slightest difficulty have obtained assistance, explanation, directions and instructions. Subsections (a) and (b) of § 1216 of the Election Code pertinently provide as follows: "(a) In districts in which voting machines are used, the election officers shall, with the aid of the diagram authorized by this act and the mechanically operated model, instruct each elector before he enters the voting machine booth regarding the operation of the machine, and shall give the elector

[ 415 Pa. Page 332]

    opportunity personally to operate the model. (b) If any voter, after entering the voting machine booth and before the closing of such booth, shall ask for further instructions concerning the manner of voting, any one of the election officers may give him such instructions, ...."

Furthermore, every voter was entitled to a large sample ballot which informed him twice - not in confusing language, as appellant asserts, but in brief clear language, with a crystally clear picture or diagram - what a careful look at the voting machine would have rendered unnecessary, viz., to vote for a candidate of his choice he should "turn down a pointer over the name of each candidate in your own party row."

Whether the instructions on the sample ballot were ambiguous and confusing as appellant contends, or were crystal clear as we assert, can be easily determined by reading it. It pertinently provides: "GENERAL PRIMARY AND SPECIAL ELECTION, TUESDAY, APRIL 28, 1964 (large caps)


"2nd. Turn down a pointer over the name of each candidate in your own party row that you wish to vote for,

     from this position

     to this position

     and leave it there.

(You will note on the Ballot that the Republican Party occupies the first horizontal row, the Democratic Party the second horizontal row .... Just remember to turn down a pointer over the name of each candidate you wish to vote for....)"

Notwithstanding all of the foregoing, and although these (Jamestown) voting machines have a lever (pointer) right over or above the name of each Republican candidate to pull down if the voter wishes to vote for a Republican, and a similar lever in the row

[ 415 Pa. Page 333]

    right over or above the name of the Democratic candidate of his choice, if he wishes to vote for a Democrat, appellant contends that if a voter votes in a different party Row and in a different space his vote must nevertheless be counted - and it must be counted as if it were cast in the row and in the space and for the person whom the Court thinks the voter meant to vote for, but didn't. In every election there are always some or many ballots which are held to be void and thrown out and not counted. Appellant contends that there were nearly 6000 votes for the Democratic nominee for the United States Senate in 13 wards. Even if this be accurate, when broken down it amounts to less than 12 to a division and less than 7 to each voting machine used in the 13 wards.

Some voters pulled down levers into the miscalled "blank" Row C - a Republican row - under three spaces in Row B (the row above C) where a Democrat's name appeared and some levers under five spaces in Row B, where no candidates' names appeared in Row B. These are the votes which are challenged in this appeal. No one knows or can determine - except by guessing,***fn** - whether such votes, or indeed any votes in the blank spaces in Republican Row C, represented (1) protest votes, or (2) non-partisan votes, or (3) Republican votes, or (4) Democratic votes, or (5) votes for Rovner, or (6) "mistake" votes; but in any event, they were illegally cast and were clearly and undoubtedly void votes! Moreover, there were several voting machines in which no votes were cast in Row B, but votes were cast in Rows A and C. This would indicate that these particular voting machines were used only by Republicans and Non-Partisans. Nevertheless, appellant contends that the votes of all

[ 415 Pa. Page 334]

Republicans and Democrats and Non-Partisan and protesting and mistaken voters which were cast in this Republican Row C, (1) were valid votes, and (2) were cast in favor of the Democratic candidate whose name, if any, appeared above or near these blank spaces in Republican Row C. If the pointers which were pulled down into Republican Row C under the name of Blatt or Roberts or Musmanno, represented valid votes for the nominee in Democratic Row B, Genevieve Blatt would have received 2,094 votes, David B. Roberts 181 votes, and Michael A. Musmanno 3,349 votes.

What is the use of a State having election laws to govern an election, what is the use of having clearly marked voting machines, and rows on the voting machines which were clearly marked for a Republican candidate and for a Democratic candidate, as well as clearly marked sample ballots, if a Court has the right and power - as appellant argues - to ignore and nullify all of these and substitute its "guess" as to whom a voter intended to vote for if he hadn't voted carelessly or hurriedly or absent-mindedly or stupidly or protestingly and illegally?

Furthermore, appellant's contention not only ignores the clear language of the Act and the clear setup of the voting machine and the clear language of the sample ballots, but it also flies in the teeth of numerous prior decisions of this Court: Weber Appeal, 399 Pa. 37, 159 A.2d 901; Pfaff v. Bacon, 249 Pa. 297, 95 A. 71; Rodgers Contested Election, 234 Pa. 512, 83 A. 476; Dailey's Appeal, 232 Pa. 540, 81 A. 655; Gulick Appeal, 192 Pa. 446, 43 A. 972; Newberry Township Election, 187 Pa. 297, 40 A. 822; Contested Election of Flynn, 181 Pa. 457, 37 A. 523; McCowin's Appeal (Little Beaver Township School Directors' Election), 165 Pa. 233, 30 A. 955; Lawlor's Contested Election, 180 Pa. 566, 37 A. 92; Redman's Election, 173 Pa. 59, 33 A. 703.

[ 415 Pa. Page 335]

These cases in principle directly rule the instant case and require this Court to hold such votes to be void. For example, in Contested Election of Flynn, supra, the law required the ballot to be marked with an X opposite the name of the candidate for whom the voter wished to vote. One ballot was marked in the proper space but with a 1 instead of an X. Another ballot was marked with an X in the vacant square to the right of but below the name of the candidate. The third ballot was marked with a 1 on the line and in the square opposite a candidate's name and with an X in the vacant square below, viz.:

(Illustration omitted)

Notwithstanding the fact that the voters' intention was clear, the Court voided all three ballots, thereby giving the election to the apparent loser, and said: "... On one of the ballots in question there is no mark in the square opposite the name of the candidate, but there is a cross mark (X) in the square below it. Not one of these ballots is marked according to law. In McCowin's Appeal, 165 Pa. 233, the present Chief Justice, after quoting from sections 14 and 22 of the act, said: 'The marking mentioned in the last quotation is applicable only to candidates whose names are printed in the official ballot. They cannot be legally voted for in any other way than by marking as specified in said section.' ... To hold that the ballots in question are valid is to set aside the plain provisions of the act prescribing the place and manner of 'marking,' and to substitute therefor the surmises of the election officers and the courts respecting the intention of the voter.

"The presumption is that the voter knows where and how to mark his ballot. He is furnished on his

[ 415 Pa. Page 336]

    request with a card of instruction and a specimen ballot, and if by reason of any disability he desires assistance in the preparation of his ballot he is permitted to select a qualified elector of the district to aid him in the preparation of it. ... For reasons already stated we decline to hold that the mark of a one (1) in the square provided for the cross mark, or a cross mark (X) in the square below it has the effect of a cross mark (X) in the proper place for it. It follows that the ballots in question should have been rejected as illegal."

Weber Appeal, 399 Pa., supra, likewise controls in principle the instant case. Weber Appeal involved the validity of 16 stickers for a "write-in" candidate, because of the manner in which the stickers had been attached.

Chief Justice JONES, speaking for a unanimous Court, refused to permit the stickers attached to a card to be regarded as votes for the candidate whose name was on the stickers and pertinently said (page 44): "The technicalities of the Election Law (and they are many) are necessary for the preservation of the secrecy and purity of the ballot and must, therefore, be meticulously observed.****fn** Thus it is, that any write-in or sticker which covers more of the ballot than the

[ 415 Pa. Page 337]

    blank space provided therefor invalidates the vote for the office under which the write-in or sticker appears. See McCowin's Appeal and Lawlor's Appeal, supra. ... A misplaced write-in or sticker, whether on a ballot or on a voting machine, is of no legal efficacy whatsoever. To hold otherwise would render facile the way to fraudulent voting and the thwarting of the electorate's will.

"What this court said in Rodgers' Contested Election, 234 Pa. 512, 519, 83 A. 476, is presently peculiarly apposite: 'While it may be that the Court in this instance correctly guessed the intention of the voter, yet the fifty-seven mutilated ballots were not marked in accordance with the instructions contained in the Act of Assembly, and under the well established doctrine in this State they should not have been counted; to permit the counting of such ballots would be a precedent fraught with grave dangers for the future."

In Peck v. Lackawanna County Board of Elections, 44 Lackawanna Jurist 97, Justice EAGEN of this Court, then a Judge in Lackawanna County, said that votes cast on a voting machine row in exactly the same way as they were cast in the instant case would be invalid. That case involved a mandamus proceeding concerning the locking of a voting row, so that well intentioned votes which were carelessly or stupidly "levered" would not be invalidated.

In the course of his Opinion Judge EAGEN said (page 98): "The unfortunate and repeated occurrence of a candidate losing hundreds of votes intended for him by well intending voters pulling a lever over a blank space under his name will be corrected by the ballot label setup proposed for use in this election."

The only exceptions are two classes of cases, neither of which is applicable - (1) minor irregularities, especially if committed by election officials, and (2) cases where a voter voted correctly in the right row

[ 415 Pa. Page 338]

    and in the right square and in the right space, but then added ...

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