Canvass of Absentee Ballots of 1967 General Election, In re

• Decision Date: 04 September 1968
• Citation: 431 Pa. 165,245 A.2d 258
• Parties: In re CANVASS OF ABSENTEE BALLOTS OF 1967 GENERAL ELECTION, Lackawanna County, Pennsylvania. Appeal of Charles R. HARTE and Samuel C. Call.
• Court: Pennsylvania Supreme Court

Page 258

245 A.2d 258

431 Pa. 165

In re CANVASS OF ABSENTEE BALLOTS OF 1967 GENERAL ELECTION,

Lackawanna County, Pennsylvania.

Appeal of Charles R. HARTE and Samuel C. Call.

Supreme Court of Pennsylvania.

Sept. 4, 1968.

Richard S. Campagna, Donald B. Cahoon, Jr., Scranton, Huette F. Dowling, Harrisburg, for appellants.

Paul A. McGlone, Hugh J. McMenamin, Scranton, David Berger, Howard L. Schambelan, Philadelphia, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

MUSMANNO, Justice.

On November 7, 1967, a general election was held in Lackawanna County for County Commissioners, the two Republican candidates being Charles R. Harte and Samuel C. Cali, and the Democratic candidates being Edward Zipay and Patrick Mellody. Following the casting of votes, the voting machine tabulations registered the following tally:

Zipay - Democrat - 46,435

Harte - Republican - 46,194

Cali - Republican - 46,154

Mellody - Democrat - 45,002

According to this score, if there were no other votes to be counted, Zipay, Harte and Cali would have been elected because, in providing for minority representation on the Board of Commissioners, the law declares that the three candidates receiving the highest number of votes shall constitute the Board of Commissioners. However, the computation recorded above did not tell the whole story. There were absentee votes yet to be counted, 6,080 of them. 574 ballots were sent in by military personnel and by war veterans; 5506 were mailed in by civilians who were, under the election code, entitled to vote by mail because of inability to get to the polls. When these absentee votes were counted and added to the voting machine totals, the election picture changed. The new lineup showed the winning candidates to be Zipay, Mellody and Harte.

However, before the actual tallying of the absentee ballots, the candidates Harte and Cali, anticipating or fearing that the tide of absentee votes would wash out their margin of victory, went before Lackawanna County's Board of Elections and objected to the counting of the absentee ballots, claiming that absentee voting was unconstitutional. After various procedural steps unnecessary to relate here, the County Board of Elections ruled against Harte and Cali. This ruling was confirmed by the Court of Common Pleas, and Zipay and Harte filed a petition for review by this Court under Supreme Court Rule 68 1/2 ¹ which was granted.

It is the contention of Harte and Cali, appellants, that the County Board of Elections had no constitutional authority to canvass the absentee votes. Article VIII, Section 19, of the Constitution, P.S. (Amendment of 1957) (now Article VII, Section 14), states:

'The Legislature may, 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 unavoidably 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.'

The Act of August 13, 1963, P.L. 707, 25 P.S. § 3146.8, provides that the County Board of Elections shall canvass all absentee ballots received in any particular county.

The appellants maintain that this statute is unconstitutional because 'it provides a procedure for the return and canvass of absentee ballots on a county-wide basis by the County Board of Election whereas, Article VIII, Para. 19, provides for the return and canvass of their (absentee) votes in the election district in which they respectively reside.'

It is an elementary principle of statutory constitution, which this court has affirmed on numerous occasions, that 'An act of assembly may not be declared unconstitutional unless 'it violates the constitution clearly, palpably, plainly; and in such manner as to leave no doubt or hesitation in the minds'.' Land Holding Corp. v. Board of F. and R. 388 Pa. 61, 72, 130 A.2d 700, 706.

In considering whether a statute offends against the Constitution, the courts look at it through historical as well as analytical eyes.

'Where a statute has been in force for many years without any question as to its constitutionality being raised and engagements have been entered into on the strength of its validity, the court will not undertake the drastic measure of wiping it off the statute books unless it is convinced beyond all peradventure of doubt that it violates a provision of the fundamental law.' Wilson v. Philadelphia School District, 328 Pa. 225, 242, 195 A. 90, 99, 113 A.L.R. 1401 (1937).

The history of the canvass of absentee ballots reveals that at no time prior to this litigation (and companion litigation in York County, a decision on which case is also being handed down today) ² did anyone question the authority of the County Board of Elections to do what the Lackawanna County Board of Elections did here. In 1937 the Election Code provided that the machinery of administering absentee soldiers' votes was to be operated by the County Board of Elections, which was also to count and record those votes. (Act of June 3, 1937, P.L. 1333, Art. XIII, §§ 1329, 1330, pp. 1443, 1444.)

In 1957, as above cited, the Constitution was amended to extend voting privileges to civilians as well as military personnel and disabled war veterans. Between 1937 and 1963 the Election Code was amended frequently, and in each instance, where this subject was involved, the Code provided that absentee ballots were to be canvassed by the County Board of Elections.

During all this time, county commissioners, legislators, mayors, and other governmental officials have been elected, (partly through absentee votes) they have served out their terms of office, they have enacted laws, supervised the expenditure of public moneys, administered complicated governmental enterprises, all of which form an integral part of the fabric and business of the Commonwealth of Pennsylvania. To say today that many of these officials were illegally elected and that everything they have done has no constitutional sanction, would be to shake the very structure of our State government. However, it is not for that reason that we would declare constitutional the provisions of the Election Code here under fire. If something is demonstrated to be monumentally wrong it becomes the duty of the courts to so declare, regardless of current embarrassment and discomfort, all to the end that what is wrong may be made right and illegal wounds inflicted may be cured as quickly as possible, whatever may be the surgery and legislative therapy required. We refer to the hitherto freedom from attack of the Election Code, (on the subject of county canvassing of absentee ballots) only for the purpose of showing that the absence of constitutional condemnation would suggest that the lawmakers of the state are satisfied it conforms to the Constitution. Otherwise, it would be reasonable to suppose that, considering the number of times the Legislature has had opportunity to review the Code, if the county canvassing of absentee ballots were as flagrant a violation of the Constitution as the appellants contend, the Legislature would have noted this, and made the demanding correction.

Absentee voting is a salutary feature in our democratic processes of government. It assures the exercise of the most sacred privilege of citizenship, namely, a participation in the selection of those who are to guide the destiny of community, state and nation, even though illness or pressing business might make it impossible for the elector to appear at the voting poll in his district on election day. The appellants themselves recognized the importance of absentee balloting by having solicited the votes of those they had reason to believe could not be in their election districts on election day. It is stated in the appellee's brief, and not questioned in the appellant's brief, that 'appellants-candidates Harte and Cali were elected at the primary elections partially on the strength of absentee ballots solicited by them.'

For the appellants to argue for the unconstitutionality of absentee voting, could be to argue against their own nominations. In addition, it must be noted that the paramount rights of the voters must be considered. The appellants do not deny the validity of the 574 military ballots, but they would nullify the votes of 5,506 civilians. Such mass disfranchisement should not be proclaimed except for grave constitutional infirmities, certainly not present here. In Perles v. Northumberland Co. Return Board, 415 Pa. 154, 159, 202 A.2d 538, 540, where absentee voting was involved, Justice Jones, speaking for the Court, said:

'This disfranchisement of even one person validly exercising his right to vote is an extremely serious matter. If, assuming, arguendo, some but all of the ballots were invalid, and we should declare all the absentee ballots void because of the few that might be invalid, we would be disfranchising a large number of voters whose votes have not been shown to be invalid.'

Here it is not a matter of disfranchising one person, but 5,506 persons because of ballots which no one claims were illegally marked, cast or counted. The disfranchisement of 5,506 citizens for following a procedure laid down by the election authorities would be unconscionable, since the appellants do not contend that they were the victims of fraud, or even mistake. The challenges to absentee ballots were heard by a commission of four able, respected lawyers of Lackawanna County (two from each major political party), appointed by the judges of Lackawanna County. The appellants do not suggest that they were harmed in any way by this bi-partisan, impartial,...