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ABSENTEE BALLOTS CASE (NO. 1) (09/04/68)

decided: September 4, 1968.

ABSENTEE BALLOTS CASE (NO. 1)


Appeal from order of Court of Common Pleas of Lackawanna County, Nov. T., 1967, No. 469, in re canvass of absentee ballots of 1967 general election.

COUNSEL

Richard S. Campagna, with him Donald B. Cahoon, Jr. and Huette F. Dowling, for appellants.

David Berger, with him Howard L. Schambelan, Paul A. McGlone and Hugh J. McMenamin, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones and Mr. Justice Roberts concur in the result. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Musmanno

[ 431 Pa. Page 167]

On November 7, 1967, a general election was held in Lackawanna County for county commissioners, the two Republican candidates being Charles R. Harte and Samuel C. Cali, and the Democratic candidates being Edward Zipay and Patrick Mellody. Following the casting of votes, the voting machine tabulations registered the following tally:

Zipay -- Democrat -- 46,435

Harte -- Republican -- 46,194

Cali -- Republican -- 46,154

Mellody -- Democrat -- 45,022

According to this score, if there were no other votes to be counted, Zipay, Harte and Cali would have been elected because, in providing for minority representation on the board of commissioners, the law declares that the three candidates receiving the highest number of votes shall constitute the board of commissioners. However, the computation recorded above did not tell the whole story. There were absentee votes yet to be counted, 6,080 of them. 574 ballots were sent in by military personnel and by war veterans; 5506 were mailed in by civilians who were, under the election code, entitled to vote by mail because of inability to get to the polls. When these absentee votes were counted and added to the voting machine totals, the election picture changed. The new lineup showed the winning candidates to be Zipay, Mellody and Harte.

However, before the actual tallying of the absentee ballots, the candidates Harte and Cali, anticipating or fearing that the tide of absentee votes would wash out their margin of victory, went before Lackawanna County's board of elections and objected to the counting of the absentee ballots, claiming that absentee voting was unconstitutional. After various procedural

[ 431 Pa. Page 168]

    steps unnecessary to relate here, the county board of elections ruled against Harte and Cali. This ruling was confirmed by the court of common pleas, and Zipay and Harte filed a petition for review by this Court under Supreme Court Rule 68 1/2,*fn1 which was granted.

It is the contention of Harte and Cali, appellants, that the county board of elections had no constitutional authority to canvass the absentee votes. Article VIII, § 19, of the Constitution (Amendment of 1957) (now Article VII, § 14), states: "The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the State or county of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability, may vote, and for the return and canvass of their votes in the election district in which they respectively reside."

The Act of August 13, 1963, P. L. 707, 25 P.S. § 3146.8, provides that the county board of elections shall canvass all absentee ballots received in any particular county.

The appellants maintain that this statute is unconstitutional because "it provides a procedure for the return and canvass of absentee ballots on a countywide ...


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