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CONTEST 1979 GENERAL ELECTION FOR OFFICE DISTRICT ATTORNEY WASHINGTON COUNTY (04/25/80)

decided: April 25, 1980.

IN RE CONTEST OF 1979 GENERAL ELECTION FOR THE OFFICE OF DISTRICT ATTORNEY OF WASHINGTON COUNTY, PENNSYLVANIA. APPEAL OF HERMAN J. BIGI AT 80-1-33 AND 47. APPEAL OF JOHN C. PETTIT AT 80-1-56


No. 80-1-33, No. 80-1-47, No. 80-1-56, Appeal from the Order of the Court of Common Pleas of Washington County, Pennsylvania, No. 320 November Term, 1979 A.D. and No. 321 November Term, 1979 A.D.

COUNSEL

D. Keith Melenyzer, Grayce R. Kovacs, Charleroi, Daniel L. Chunko, Washington, for Herman J. Bigi.

George K. Hanna, Washington, for John C. Pettit.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a concurring opinion in which Kauffman, J., joins.

Author: Flaherty

[ 489 Pa. Page 406]

OPINION OF THE COURT

This case arises out of the 1979 General Election in Washington County, Pennsylvania, involving the race for District Attorney. John C. Pettit was the Republican nominee and Herman J. Bigi the Democratic nominee. The election was conducted by the use of paper ballots. After the initial counting of the ballots in the two hundred five

[ 489 Pa. Page 407]

    precincts in Washington County was completed, Pettit had an unofficial lead of fifty-five votes. However, after the recanvassing of the vote, Bigi led by an unofficial forty-eight votes. Prior to completion of the recanvassing, both Bigi and Pettit filed Petitions for a General Election Contest alleging, inter alia, certain errors and irregularities in the various ballots as counted in the precincts. Three Judges, sitting both as the county election board by virtue of the county commissioners running for office and as the court en banc, unanimously ordered that all two hundred five ballot boxes be opened and that each ballot be scrutinized and counted individually in order to ascertain an accurate count.

Upon completion of the recount, numerous ballots went before the court because of challenges made by both sides during the recount. The lower court ruled on over two thousand challenged ballots. Broadly summarized, the challenges to the lower court's rulings fall into three categories: 1) there was a challenge to the decision with respect to ballots which were allegedly fraudulently or erroneously marked; 2) there was a challenge to the decision not to count ballots with numbered corners left on; and 3) there was a challenge to the decision to invalidate ballots containing more than one mark in the straight-party column. Since the ballots with numbered corners left on are not contested on appeal, we will begin with a consideration of Bigi's challenge to the lower court's decision that ballots containing more than one mark in the party column should not have been counted.

In order to describe the nature of the challenge to the decision not to count ballots in which more than one mark appeared in the party column -- "double-straight ballots" -- a brief description of the ballot will be helpful. The official election ballot prepared by the Washington County Election Office contained the following political party and political body designations in the party column on the upper left-hand side of the ballot:

[ 489 Pa. Page 4081]

. Republican

2. Democratic

3. Vincent Register Wills

4. In some precincts of the various municipalities of Washington County, other alleged political body designations; for example, in the Second Precinct of Centerville, "Fowler for Council"; in the Eighth Ward of the City of Washington, "Comer for Constable"; in the Sixth Ward of the City of Washington, "Muti for Constable"; in the Nineteen Precincts of the City of Washington, "Marshman for Mayor".

A graphic representation of the pertinent portions of both the right and left sides of the ballot is as follows:

Party Column District Attorney

Republican [] (Vote for not more than one)

Democrat [] John C. Pettit Republican []

Vincent Register Herman J. Bigi Democrat []

Wills [] Register of Wills

[] (Vote for not more than one)

Julia Uram Republican []

Kathleen Flynn Democrat []

Vincent Register Wills

Josephine Vincent []

Both the Republican party and the Democratic party had a full slate of candidates for offices as to which statewide or county-wide voting was required. The political body "Vincent Register Wills" was represented on the ballot by a single candidate, Josephine Vincent, who was a contender for a single office, the Register of Wills. No other person was listed as a candidate of the "Vincent Register Wills" political body for any other office shown on the ballot.

The one hundred twenty-nine ballots at issue in the present case were marked in one of the two following manners.

[ 489 Pa. Page ...


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