ROSENBERG, District Judge.
This matter comes before me by a complaint of the plaintiff, Robert C. Reed, seeking a mandatory injunction against F. Joseph Thomas, Specially Presiding Judge of the Court of Common Pleas for the Thirty-Sixth Judicial District of Pennsylvania, and Eli C. Corak, Eugene V. Atkinson and George T. Pettibon, as members of the Beaver County Board of Elections.
This action arises by reason of an election contest between principally two candidates for the office of judge of the Court of Common Pleas of Beaver County, and results because of a decision of the Supreme Court of Pennsylvania that a certain number of paper ballots were valid which had not had the numbered corners removed from the ballots. The plaintiff bases his action upon the Civil Rights Act, 42 U.S.C. § 1983. He alleges that a denial of due process resulted from (1) the failure of the State's highest tribunal to provide an opportunity for the production of evidence concerning whether certain election officials had, in accordance with state law, informed certain voters of the necessity to remove the identification corners from their election ballots; and (2) the denial of an opportunity to adequately argue the question of his right to such evidence resulting from the late service of candidate Walko's brief in the Supreme Court proceeding and refusal of that Court to grant a petition for rehearing.
The defendants as members of the Beaver County Board of Elections and Judge Thomas of the Court of Common Pleas, each moved to dismiss the complaint. In substance, each motion is similar and asserts a failure in the complaint to state a cause of action and a lack of jurisdiction in this court.
At the hearing the defendants were first heard on the motions to dismiss and thereafter evidence was received on the plaintiff's request for a preliminary injunction. I first discuss the defendants' motions to dismiss. In regard to this motion, the averments of the complaint are taken as stating the facts. Gardner v. Toilet Goods Assn., 387 U.S. 167, 87 S. Ct. 1526, 18 L. Ed. 2d 704 (1967).
On November 6, 1973, in a general election held in Beaver County, Pennsylvania, three candidates ran for two seats on the Court of Common Pleas for that County. One of the candidates had received both the Republican and Democratic nominations and he is not involved in the problem here presented. The other candidates were the plaintiff, Robert C. Reed and Joseph S. Walko. The vote totals for these two candidates were close and both candidates petitioned for and brought in 112 ballot boxes for recount. During the recount, the Election Board was presided over by the Honorable F. Joseph Thomas, Judge of the Court of Common Pleas of Crawford County, Pennsylvania, who had been specially assigned by the Supreme Court of Pennsylvania. During the recount, the ballot boxes contained a number of paper ballots with the printed ballot number still appended to the corner of these ballots. The Election Board and the Presiding Judge ruled these ballots to be invalid and they were not counted. In so ruling, Judge Thomas followed the directions of the Pennsylvania Election Code, § 1004, as amended 25 P.S. § 2964 and § 1215(d) (25 P.S. § 3055(d)), which provides as follows:
". . . the election officer shall direct the elector, without unfolding the ballot, to remove the perforated corner containing the number, and the elector shall immediately deposit the ballot in the ballot box. Any ballot deposited in a ballot box at any primary or election without having the said number torn off shall be void and shall not be counted."
Upon appeal to the Supreme Court of Pennsylvania by candidate Walko, the Supreme Court declared the ballots valid and directed Judge Thomas to supervise the removal of the disputed ballot corners and to count them as if the numbers had originally been torn from the corners before being deposited in the ballot boxes. The plaintiff avers that he was not served with a copy of his adversary's brief until immediately before the Supreme Court argument, thus denying him the chance to effectively argue the questions. His petition for reargument, assumedly based upon this point, was denied. He alleges also that the Supreme Court of Pennsylvania assumed that it was the election officials who failed to inform the voters to tear off the corners; and, therefore, he has a right to adduce evidence as to whether this was in actuality the case.
As soon as this matter was returned by the Pennsylvania Supreme Court to Judge Thomas, the plaintiff brought this action to prevent Judge Thomas and the Election Board from counting the disputed ballots.
Actions have been brought against state courts under the authorization of the Civil Rights Act, 42 U.S.C. § 1983.
Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972); Koen v. Long, 302 F. Supp. 1383 (E.D.Mo., 1969), affirmed, 428 F.2d 876, C.A. 8, 1970, cert. den., 401 U.S. 923, 91 S. Ct. 877, 27 L. Ed. 2d 827 (1971); Mills v. Larson, 56 F.R.D. 63, 67-68 (W.D.Pa., 1972). As stated in Mitchum, supra, 407 U.S. at page 240, 92 S. Ct. at page 2161:
"It is clear from the legislative debates surrounding passage of § 1983's predecessor that the Act was intended to enforce the provisions of the Fourteenth Amendment 'against State action, . . . whether that action be executive, legislative, or judicial.' Ex parte Virginia, 100 U.S. 339, 346, [25 L. Ed. 676] (emphasis supplied)."