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KAUFFMAN ET AL. v. OSSER (11/12/70)

decided: November 12, 1970.

KAUFFMAN ET AL., APPELLANTS,
v.
OSSER



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1970, No. 2946, in case of Sylvia Kauffman and Phyllis Gitlin v. Maurice S. Osser, Thomas P. McHenry and Louis Menna et al.

COUNSEL

Sheldon W. Farber, for appellants.

John McNally, Jr., with him Levy Anderson and Matthew W. Bullock, Jr., for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell concurs in the result. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen and Mr. Justice O'Brien join in this dissent.

Author: Jones

[ 441 Pa. Page 152]

On May 15, 1970, Sylvia Kauffman and Phyllis Gitlin (appellants), instituted an action under the Uniform Declaratory Judgments Act*fn1 in the Court of Common Pleas of Philadelphia City against three named individuals who constitute the County Board of Elections and one individual, its chief clerk (election officials), in the City of Philadelphia.*fn2

This action was brought by the appellants who purported to act on their own behalf as registered electors of the Democratic party in Philadelphia who intend to vote in person at the polls in the November 1970 election and the purpose of the action was to enjoin and restrain the election officials from issuing or recognizing a certain class of absentee ballots on the ground

[ 441 Pa. Page 153]

    that the provisions of the Absentee Ballot Law*fn3 authorizing such class of ballots are invalid under the federal and state constitutions.

Preliminary objections filed by the election officials were sustained by the court below and the appellants' complaint dismissed. From that order, the instant appeal stems.

Appellants urge several reasons why various provisions of the absentee ballot statute are constitutionally infirm: (1) that, insofar as the statute permits qualified electors and their spouses while on "vacations", on election dates, to vote by absentee ballots, the statute violates Article VII, Section 14, of the Pennsylvania Constitution;*fn4 (2) that the provisions of the statute providing for the manner of challenging absentee ballots (i.e., the time when challenges must be made, the paucity of time within which a challenge may be entertained, the grounds for challenge and the lack of an appropriate method of reviewing the propriety of the challenges), violate both the equal protection and due process clauses of the U. S. Constitution and Article I, Section 5 of the Pa. Constitution;*fn5 (3) Section 8(f)

[ 441 Pa. Page 154]

    of the statute which requires a $10 deposit to challenge each absentee ballot violates both the 14th Amendment to the U. S. Constitution and ...


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