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RAY v. COMMONWEALTH (04/22/71)

SUPREME COURT OF PENNSYLVANIA


decided: April 22, 1971.

RAY, APPELLANT,
v.
COMMONWEALTH

Appeal from decree of Court of Common Pleas of Dauphin County, Commonwealth Docket No. 351 1/2 of 1969, in case of Robert Allen Ray v. Commonwealth of Pennsylvania.

COUNSEL

Robert Allen Ray, appellant, in propria persona.

Frank P. Lawley, Jr., Deputy Attorney General, and Fred Speaker, Attorney General, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri.

Author: Barbieri

[ 442 Pa. Page 607]

This is an appeal from the decision of the Court of Common Pleas of Dauphin County dismissing appellant's complaint.

Appellant requested the lower court to enjoin enforcement of Section 102(y) of the Election Code, Act of June 3, 1937, P. L. 1333, Art. I, § 102 (as amended),

[ 442 Pa. Page 60825]

P.S. § 2602(y). Section 102(y) excepts "any person committed to and confined in a penal institution" from the definition of "absentee elector." Appellant, who is "confined in a penal institution" by reason of his convictions for armed robbery and aggravated robbery, contends that Section 102(y) is unconstitutional insofar as it prohibits him from voting as an absentee elector.

Even assuming that appellant's claim has not been mooted by the fact that it was concerned with the already past November, 1970 elections, or that injunction rather than mandamus was the proper form of remedy, appellant's claim still must fail. Appellant cites two provisions of the Pennsylvania Constitution in support of his arguments: (1) "Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage," (Art. I, Sec. 5), and (2) "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." Art. VII, Sec. 14.

Appellant's contention that Section 102(y) of the Election Code is inconsistent with Art. I, Sec. 5 of the Constitution shows a misunderstanding of the scope and purpose of that constitutional provision. As this Court said in Winston v. Moore, 244 Pa. 447, 457, 91 A. 520 (1914), "elections are free and equal within the meaning of the constitution when they are public and open to all qualified electors alike." (Emphasis added) The

[ 442 Pa. Page 609]

    right to vote guaranteed under Art. I, Sec. 5 is thus subject to the same condition as is the right to an absentee ballot guaranteed in Art. VII, Sec. 14 -- that the voter must be a "qualified elector." And just as the Legislature has the power to define "qualified electors" in terms of age and residency requirements, so it also has power to except persons "confined in a penal institution" from the class of "qualified electors." See Davis v. Beason, 133 U.S. 333 (1890); Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 51 (1959); McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969); Ray v. Commonwealth, 263 F. Supp. 630 (W.D. Pa., 1967).*fn1 This Court does not sit to judge the wisdom of the Legislature's policies. The exception as enacted is within the permissible scope of legislative authority and we are satisfied that it does not violate any provision of either the Pennsylvania or United States Constitutions.

Decree affirmed. Each party to pay own costs.

Disposition

Decree affirmed.


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