Appeal from order of Court of Common Pleas of York County, Miscellaneous Docket YY, 80, 81 and 82 of 1967, in re 223 absentee ballot appeals.
G. Thomas Miller, with him Rod J. Pera, and McNees, Wallace & Nurick, for appellant.
Arlin M. Adams, with him William T. Hangley, and Schnader, Harrison, Segal & Lewis, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones, Mr. Justice O'Brien and Mr. Justice Roberts concur in the result. Mr. Justice Cohen took no part in the consideration or decision of this case.
Henry B. Leader was a candidate in 1966 for State Senator in the 28th Senatorial District, which comprises the major part of York County. After the ballots had been cast on November 8, 1966, Mr. Leader, with his attorneys, appeared before the York County Board of Elections and moved that the board not proceed with the counting of absentee ballots because, he asserted, that the section of the Election Code which empowered the county board of elections to canvass absentee ballots (Act of August 13, 1963, P. L. 707, 25 P.S. § 3146.1-3146.9) was unconstitutional insofar as it applied to civilians' absentee ballots, on the basis that it violated Article VIII, § 19 of the Constitution of Pennsylvania.
The board refused the motion and proceeded to tabulate the absentee ballots. Mr. Leader then filed a petition in the Court of Common Pleas of York County, reasserting the unconstitutionality of the controverted
section of the Election Code above cited. The court decided against Leader and he filed a petition, under Rule 68 1/2 of this Court, which was granted.
The question now before us was considered and resolved in the Absentee Ballots Case (No. 1), 431 Pa. 165, 245 A.2d 258, which came up from Lackawanna County, and the opinion filed in that case is incorporated by reference into this opinion. However, the appellant here has presented his case with such earnestness and his brief gives evidence of such long and studious preparation that we do not feel that the appeal should be summarily disposed of by merely citing our decision in the Lackawanna County case filed today.
The insuperable obstacle which confronts the appellant in this case is that the election machinery as presently set up makes impossible what he declares should have been done in the 1966 election. He urges that the district elections boards and not the county election board should have counted the absentee ballots, but how could they? A district election board sits on election day and, after the polls close, the members thereof immediately proceed to tabulate the results shown on the voting machines, or the written ballots. When this has been accomplished, the job of the district election board is done. Its operation is at an end. It may not convene again to consider absentee ballots or any other kind of ballot. It has no permanent office at which complaints may be registered.
Under present law, absentee ballots must be placed in the mail by the voters no later than at the end of the day on which the election is held. This means that since the ballots are mailed from a distant point, they might well not arrive at the place where the district election board sits until days ...