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10/25/95 PATRICIA DIPIETRAE BERNARD BUKOWSKI MARY

October 25, 1995

PATRICIA DIPIETRAE; BERNARD BUKOWSKI; MARY BOICE; MARINA DOMIT; AND MARYANNE HILDENBERGER
v.
CITY OF PHILADELPHIA AND PHILADELPHIA CITY COMMISSIONERS/PHILADELPHIA COUNTY BOARD OF ELECTIONS, APPELLANTS



APPEALED From No. 4317 April Term, 1994. Common Pleas Court of the county of Philadelphia. Judge NIGRO.

Before: Honorable James Gardner Colins, President Judge, Honorable Doris A. Smith, Judge, Honorable George T. Kelton, Senior Judge.

The opinion of the court was delivered by: Kelton

OPINION BY

SENIOR JUDGE KELTON

FILED: October 25, 1995

Issues

This case presents two issues: 1) whether the Court of Common Pleas of Philadelphia County (trial court) erred in determining that a disabled elector may have the assistance of another person in order to obtain an absentee ballot from the Philadelphia County Board of Elections (Board) and to have that ballot be returned to the Board once the disabled elector has completed and signed it; and 2) whether the court erred in finding that election Judges may delegate the task of transporting election materials on election days. On October 13, 1995, we entered the attached order affirming the September 21, 1994 order of the Honorable Russell M. Nigro for the trial court. This opinion is filed in explanation of our order.

Background

Appellants in this case are the City of Philadelphia and the Philadelphia City Commissioners in their official capacity as the Philadelphia County Board of Elections (collectively "the City"). Appellees are Judge of Elections Patricia DiPietrae and disabled electors Bernard Bukowski, Mary Boice, Marina Domit and Maryanne Hildenberger. The disabled electors are all registered to vote, but physically disabled to the extent that they are unable to travel to polling places or to the Office of the City Commissioner, must vote in their homes and need assistance in sending their applications and completed ballots to the City Commissioners. (Trial Court's September 21, 1994 Opinion at 3.)

On April 29, 1994, Appellees filed a complaint for declaratory and injunctive relief seeking guidance as to the way in which they may legally vote by absentee ballot and the way in which they may legally perform their duties as election Judges. (R.R. 5-10.) Their concerns arose after the Honorable Clarence C. Newcomer for the United States District Court for the Eastern District of Pennsylvania entered an order on April 26, 1994 in a case involving widespread and flagrant election fraud. Judge Newcomer determined that certain past practices of Philadelphia election officials in discharging their election duties violated the Pennsylvania Election Code (Code). *fn1 Marks v. Stinson, No. 93-6157, aff'd, 37 F.3d 1487 (3rd. Cir. Pa. 1994), cert. denied, U.S. , 115 S. Ct. 901 (1995). *fn2

On May 6, 1994, the trial court granted temporary injunctive relief to Appellees for the May 10, 1994 Philadelphia primary election. (R.R. 39-40.) The trial court entered permanent declaratory and injunctive relief on September 21, 1994, the appeal of which is the subject of this action.

The City appeals from the September 21, 1994 order of the trial court directing that

(1) Disabled voters are authorized to appoint any person of their choice as their agents to obtain absentee ballot applications, to deliver absentee ballot applications to the Board of Elections, to obtain absentee ballots, and to deliver completed absentee ballots to the Board of Elections in person or by mail with the limitation that an individual cannot be the agent for persons living in more than one household;

(2) [The City is ordered] to issue instructions that permit [election Judges] within the County of Philadelphia to designate any competent adult person to assist in the transportation of election materials between the polling places and the designated receiving areas for such materials, provided that:

(a) The Judges of Elections or acting Judges of Elections shall obtain the assent of the minority inspector to the above designation, if he or she is available;

(b) The Judges of Elections or acting Judges of Elections shall obtain possession of the voting machine keys before the opening of the polls, and shall retain possession of the keys throughout the election process; and

(c) The City Commissioners shall continue to take all reasonable steps to assure that the election paraphernalia and voting machine keys are actually at each polling place prior to the time set for the scheduled opening of the polls.

(3) All other procedures of the Pennsylvania Election Code shall ...


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