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January 20, 1971

Sylvia KAUFFMAN and Phyllis Gitlin
Maurice S. OSSER, Thomas P. McHenry and Louis Menna, County Commissioners of Philadelphia County sitting as County Board of Elections, and Vincent Gaitley, Chief Clerk County Board of Elections

The opinion of the court was delivered by: LORD, III

Plaintiffs, registered voters who are enrolled as members of the Democratic Party, seek injunctive relief under 42 U.S.C. § 1983 *fn1" restraining the defendant state election officials from issuing and counting civilian absentee ballots in general elections *fn2" pursuant to Pub. L. No. 375 (Dec. 11, 1968), which amended the absentee voter provisions of the Commonwealth of Pennsylvania's Election Code of 1937, 25 Pa. Stat. Ann. § 3149.1 (1963), as amended, 25 Pa. Stat. Ann. § 3146.1 (Supp. 1970). The plaintiffs also seek a declaratory judgment pursuant to 28 U.S.C. § 2201 (Supp. 1970) that P.L. 375 violates the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution.

The complaint was filed on September 4, 1970, and on September 24, 1970, defendants filed a motion to dismiss. A hearing was set for September 28, 1970, before the three-judge court which had been convened pursuant to 28 U.S.C. §§ 2281-2284. That hearing was adjourned after a short time in order to allow counsel to take certain depositions and to enter, if possible, into stipulations of fact. Depositions were taken, a stipulation was entered into, and on October 9, 1970, the case was submitted to the court as if on final hearing. *fn3"

"* * * shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of voters as the General Assembly may enact."

 However, while a person who fulfills the state's age, residency, and citizenship requirements and who registers *fn4" to vote is entitled to vote, in fact he can only do so if he conforms to the state's requirements relating to the receipt and casting of ballots.

 Any person who is entitled to vote may vote at the polls if he appears at the appropriate polling place at the appropriate time, 25 Pa. Stat. Ann. § 3045 (1963), and signs a voter's certificate, 25 Pa. Stat. Ann. § 3050 (1963). In order to protect against the possibility that a person not entitled to vote may participate in the election, it is provided that a person voting at the polls

"* * * May be challenged by any qualified elector, election officer, overseer, or watcher at any primary or election as to his identity, as to his continued residence in the election district or as to any alleged violation of the provisions of section 1210 of this act." 25 Pa. Stat. Ann. § 3050 (1963).

 The election can be contested after the results are in on the ground that, inter alia, unqualified voters participated. 25 Pa. Stat. Ann. § 3326 (1963).

 While all persons who are entitled to vote may vote at the polls, there is a sub-class of such persons the members of which are also authorized to receive and cast their ballots in a different manner. Article 7, sec. 14, of the Pennsylvania Constitution provides that

"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 convass of their votes in the election district in which they respectively reside."

 25 Pa. Stat. Ann. § 3146.1 (Supp. 1970) includes civilians who will be absent due to their "* * * duties, occupation or business * * *" among the classes of persons entitled to vote by absentee ballot, and elsewhere in Pub. L. No. 375 (Dec. 11, 1968) it is provided that

"* * * [the] words 'duties, occupation, business ['] (sic) shall include leaves of absence for teaching or education, vacations, sabbatical leaves * * * and also include an elector's spouse who accompanies the elector." 25 Pa. Stat. Ann. § 2602(z-3) (Supp. 1970).

 Those who ground their application for an absentee ballot on an absence due to "duties, occupation or business" generally must apply to the county election board not earlier than fifty days before the election and not later than 5:00 P.M. of the first Tuesday prior to the election. 25 Pa. Stat. Ann. § 3146.2a (Supp. 1970). This application form

"* * * shall be signed by the applicant and shall include the surname and christian name or names of the applicant, his occupation, date of birth, length of time a resident in voting district, voting district if known, place of residence, post office address to which ballot is to be mailed, the reason for this absence, and such other information as shall make clear to the county board of elections the applicant's right to an official absentee ballot." 25 Pa. Stat. Ann. § 3146.2(e) (1) (Supp. 1970).

 Absentee ballots, enclosed in an envelope bearing a "voter's declaration," *fn5" are received by the county election board and then distributed to the local election districts with the other election supplies. 25 Pa. Stat. Ann. § 3146.8 (Supp. 1970). These absentee ballots are canvassed, along with all other votes, on ...

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