The opinion of the court was delivered by: LORD, III
Plaintiffs, citizens of the Commonwealth of Pennsylvania and residents of the counties of Montgomery, Lehigh, Delaware, and Philadelphia, seek injunctive relief restraining the defendant state election officials from issuing absentee ballots pursuant to P.L. No. 375 (Dec. 11, 1968) ("P.L. 375"), which amended the Commonwealth of Pennsylvania's Election Code of 1937, as amended, 25 Pa. Stat. Ann. § 3146.1 (Supp. 1970). The plaintiffs also seek a declaratory judgment pursuant to 28 U.S.C.A. § 2201 (Supp. 1970) that P.L. 375 violates the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution. Jurisdiction is invoked under the Civil Rights Act of 1871, 42 U.S.C.A. § 1983 (Supp. 1970).
Presently before us are several motions to dismiss filed by the defendants, some of which urge dismissal because plaintiffs have failed to exhaust their state remedies.
At least one of the questions raised here was raised before the Pennsylvania Supreme Court in the case of Haakenson v. Parkhouse, No. 145, January Term, 1970, now dismissed by that court, on plaintiffs' motion, as moot. Even if we assume that plaintiffs have not exhausted their state remedies, that contention is directed only to the exercise of our equity jurisdiction and would not affect plaintiffs' request for a declaratory judgment. Zwickler v. Koota, 389 U.S. 241, 254, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); see Devita v. Sills, 422 F.2d 1172 (C.A. 3, 1970). Further, such exhaustion is not required under the Civil Rights Act. McNeese v. Board of Educ., 373 U.S. 668, 671-674, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963); Kelly v. Butler County Bd. of Comm'rs, 399 F.2d 133 (C.A. 3, 1968).
All the motions to dismiss maintain that the complaint fails to state a claim under the Civil Rights Act. Plaintiffs' first contention is that P.L. 375 enlarges the class of absentee voters beyond the limits set out in Article VII, section 14 of the Pennsylvania Constitution, which provides:
"The Legislature shall, by general law, provide a manner in which, and at 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, * * *." (Emphasis added.)
"The words 'duties, occupation business['] (sic) shall include leaves of absence for teaching or education, vacations, sabbatical leaves, and all other absences associated with the elector's duties, occupation or business, and also include an elector's spouse who accompanies the elector." 25 Pa. Stat. Ann. § 2602(z-3) (Supp. 1970), as amended, act 375, § 2  Pa. Laws 1013.
Plaintiffs therefore argue that in violation of Article VII, Section 14 of the Pennsylvania Constitution,
"* * * P.L. 375 permits civilian absentee votes to be cast by persons plainly not required to be absent from their polling places by reasons of duties, business and occupation, specifically including (1) vacationers, and (2) spouses who accompany them, without respect to whether their duties, occupation or business require them to be elsewhere." Complaint P6(B). (Emphasis in original.)
Regardless of the merits of this contention it of course presents only a question of state law. We pass over this argument for the moment and consider the federal constitutional questions raised in the complaint.
Plaintiffs contend that the Election Code expressly provides a "right" to challenge prospective voters for lack of qualification, but that P.L. 375 creates "a special, arbitrary and privileged classification of voters not subject to adequate challenge, in violation of the Equal Protection and Due Process Clauses * * *." Plaintiffs' Brief p. 2. Plaintiffs claim to be members of the class of qualified and registered voters whose civil rights "are being unlawfully jeopardized, and * * * the effect of their votes is being diluted * * *." Complaint P2. They argue that the "purity" of elections held under the act "will be unlawfully jeopardized and all valid votes cast thereat will be diluted in their proper force and effect." Complaint P6. This argument is concerned solely with the restrictions which P.L. 375 has placed upon the state "right" of private parties, presumably candidates or their political organizations, to challenge an elector's qualifications before election day.
Plaintiffs argue that P.L. 375 has made it extremely difficult for private persons to challenge any number of ...