The opinion of the court was delivered by: SEITZ
The following facts were stipulated by the parties. Joseph O. Canby (Canby), a registered Republican, was elected a County Commissioner of Bucks County in a general election held on November 7, 1967, for the term commencing January 1, 1968 and expiring the first Monday in January 1972. On June 8, 1970 Canby resigned. On August 4, 1970, the Court of Common Pleas of Bucks County appointed Warden, a registered Republican elector of Bucks County, to fill the vacancy for the balance of the term.
The election of Canby and the appointment of Warden were pursuant to Title 16, Chapter 1, § 501 of the Pennsylvania County Code which provides:
"(a) Three county commissioners shall be elected in each county in the year one thousand nine hundred and fifty-five, and every fourth year thereafter. In the election of commissioners, each qualified elector shall vote for no more than two persons. The three persons having the highest number of votes shall be elected.
"(b) Any casual vacancy in the office of county commissioners shall be filled, for the balance of the unexpired term, by the court of common pleas of the county in which such vacancy shall occur by the appointment of a registered elector of the county who was a member of the same political party as the commissioner whose place is to be filled at the time the commissioner was elected."
Plaintiffs, in challenging the statute on its face, aver that it deprives them of rights guaranteed by the Equal Protection and Due Process Clauses of the Fourteenth Amendment and of a republican form of government guaranteed by Art. IV, § 4 of the Constitution.
We turn first to plaintiffs' contention that § 501(a) abridges the principle of "one man, one vote" as developed in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), and its progeny. We do so even though we recognize that it is arguable that under the present facts that precise issue may not be properly before us.
By enacting § 501(a) Pennsylvania has chosen to utilize a scheme known as limited voting.
Since each elector is restricted to voting for two of three commissioners to be elected and since the majority and minority parties each ordinarily nominate two candidates, it is expected that the choice of the largest minority will ordinarily be elected as one of the commissioners. Plaintiffs assert that as a result of this scheme, one commissioner who assumes office must necessarily have been rejected by a majority of voters and elected by a minority of voters. Since in the board of commissioners an elected minority commissioner is given a vote equal to that of an elected majority commissioner, plaintiffs conclude that the votes of majority party electors count for less than those of the minority. Such a result, they say, violates the principle of "one man, one vote."
Plaintiffs' attack on the statute derives from what we believe to be a specious conception of its effect and a misplaced reliance upon the principle of "one man, one vote." The statute does not, as plaintiffs assert, insure the election of a commissioner who was rejected by a majority, but rather its purpose is to encourage the election of members of both major political parties. Commonwealth ex rel. Teller v. Jennings, 409 Pa. 513, 186 A. 2d 916 (1963). In fact, the effect of the statute is never wholly predictable for it is possible for a board of commissioners to be elected consisting of three members of the same party, three members of different parties or three independents. Commonwealth ex rel. Teller v. Jennings, supra ; Commonwealth v. Wise, 216 Pa. 152, 65 A. 535 (1907).
Under the Pennsylvania scheme each elector necessarily has the same relative voting strength since each is permitted to cast two votes and the election is at-large. The Equal Protection Clause is thus satisfied, Hadley v. Junior College District, supra, 397 U.S. at 56, 58, 90 S. Ct. 791, unless plaintiffs can demonstrate that this scheme is designed to dilute the voting or representational strength of a particular political element. Burns v. Richardson, 384 U.S. 73, 88, 86 S. Ct. 1286, 16 L. Ed. 2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S. Ct. 498, 13 L. Ed. 2d 401 (1965). Plaintiffs cannot sustain this burden by demonstrating merely that the statute encourages representation for political minorities or by a showing that in a particular instance a particular minority has succeeded in electing a commissioner. Nothing in the Constitution militates against a scheme which is designed to encourage some minority representation, unless it can be shown that it results in invidious discrimination, which we cannot find. Cf. Gordon v. Lance, 403 U.S. 1, 91 S. Ct. 1889, 29 L. Ed. 2d 273 (1971).
The statute may be viewed as having an effect which encourages a fairer or more effective representation than would otherwise result if a simple plurality rule were used in which the majority elects all the commissioners, for this would necessarily discriminate by entirely discounting the votes of the minority electors. No compelling reason has emerged to cause us to inhibit the state from attempting to achieve what it considers to be a legitimate political goal. The Supreme Court has often recognized that the states should be afforded flexibility to tailor viable local governmental structures to meet their particular needs. Hadley v. Junior College District, supra, 397 U.S. at 59, 90 S. Ct. 791; Avery v. Midland County, 390 U.S. 474, 485, 88 S. Ct. 1114, 20 L. Ed. 2d 45 (1968); Sailors v. Board of Education, 387 U.S. 105, 110-111, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967). We hold that the scheme reflected in § 501(a) is one such acceptable method. See Blaikie v. Wagner, 258 F. Supp. 364 (S.D.N.Y. 1965).
Plaintiffs next contend that the power delegated to the Court of Common Pleas to appoint an interim successor to fill a casual vacancy in the office of county commissioner deprives them of the rights to a republican form of government guaranteed by Art. IV, § 4 and to Due ...