decided: October 2, 1969; October 27, 1969, Decided.
Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1969, No. 1090, in case of George W. Shankey, Jr. et al. v. Leonard C. Staisey et al.
Edward Friedman, Counsel General, and Francis A. Barry, Deputy County Solicitor, with them Thomas M. Rutter, Jr., Assistant County Solicitor, and William C. Sennett, Attorney General, for appellants.
John H. Neely, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts dissents. Mr. Justice Pomeroy took no part in the consideration or decision of this case.
The order of the Court of Common Pleas of Allegheny County, Civil Division, is reversed and the action of the Board of Elections of Allegheny County is sustained. Opinion to follow.
At issue in this case is the constitutionality of Act No. 17, Section 1 of 1968 known as The Amending Act of 1968, March 13, P. L. [ILLEGIBLE WORD], Section 1, amending the Act of June 3, 1937, P. L. 1333, Art. XIV, Section 1405 (25 P.S. § 3155 [Supp. 1969]).*fn1 As amended, that statute says: "The county board, in computing the votes cast at any primary or election, shall compute and certify votes cast on irregular ballots exactly as such names were written, stamped, affixed to the ballot by sticker, or deposited or affixed in or on receptacles for that purpose, and as they have been so returned by the election officers. In the primary the county board shall not certify the votes cast on irregular ballots for
any person for a county, city, borough, town, township, ward, school district, election or local party office unless the total number of votes cast for said person is equal to or greater than the number of signatures required on a nomination petition for the particular office."
There is no dispute as to the facts in the case. The Constitutional Party, having received sufficient votes at the election preceding the May 20, 1969, primary, is a legal county party under the Act of June 3, 1937, P. L. 1333, Art. VIII, Section 801, as amended by the Act of July 28, 1941, P. L. 526, Section 1 (25 P.S. § 2831(b)). It was thus entitled to "nominate all its candidates for office in such [Allegheny] county and in all political districts within said county." None of the appellees filed nomination petitions but all received the highest number of votes cast for various offices in Allegheny County by electors of the Constitutional Party, their names having been "written in." The County Board of Elections refused to certify the votes cast for appellees for the named offices because the number of votes cast for each did not satisfy the requirements of § 1405.
Plaintiffs-appellees brought a mandamus action in the Common Pleas Court of Allegheny County to require the Board to certify the votes cast for plaintiffs for a place on the ballot. The lower court found that the statute in question violates Art. I, Section 5 of the Pennsylvania Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We reverse.
It is clear that the legislature may enact laws governing the conduct of general and primary elections. Winston v. Moore, 244 Pa. 447, 455 (1914); 25 Am. Jur. 2d Elections § 150 (1966). It is also clear that no legislative enactment may contravene the ...