IN RE ABSENTEE BALLOTS OF NOV. 4, 2003

• Decision Date: 08 March 2004
• Citation: 577 Pa. 231,843 A.2d 1223
• Parties: In re CANVASS OF ABSENTEE BALLOTS OF NOV. 4, 2003 GENERAL ELECTION. Appeal of John Pierce, Thomas Stepnick and Susan Gantman and Susan Gantman for Superior Court, Inc.
• Court: Pennsylvania Supreme Court

843 A.2d 1223

577 Pa. 231

In re CANVASS OF ABSENTEE BALLOTS OF NOV. 4, 2003 GENERAL ELECTION.

Appeal of John Pierce, Thomas Stepnick and Susan Gantman and Susan Gantman for Superior Court, Inc.

Supreme Court of Pennsylvania.

Submitted January 14, 2004.

Decided March 8, 2004.

Ronald Lee Hicks, David James Porter, Pittsburgh, Lawrence J. Tabas, Philadelphia, for John Pierce, et al.

Lazar Melton Palnick, Clifford B. Levine, Pittsburgh, for Democratic State Committee of PA.

Allan Joseph Opsitnick, Pittsburgh, Charles P. McCullough, for Allegheny County Dept. of Elections.

Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION

Justice CASTILLE.

The issue on this appeal is whether non-disabled absentee voters may have third persons hand-deliver their ballots to the Allegheny County Board of Elections under Section 3146.6(a) of the Election Code, 25 P.S. § 3146.6(a), where the Board of Elections indicated that this practice was permitted. The Commonwealth Court affirmed the trial court and held that absentee ballots delivered by third persons were valid under these circumstances. For the reasons that follow, we hold that Section 3146.6(a)'s "in person" delivery requirement is mandatory, and that absentee ballots delivered in violation of the provision are invalid, notwithstanding the Board's erroneous instructions to the contrary. Accordingly, we reverse.

This appeal arises from the Board's decision to void seventy-four absentee ballots cast in the November 4, 2003 general election. Fifty-six of the ballots were deemed to be invalid absentee ballots. An additional eighteen ballots were deemed to be invalid because two potentially problematic absentee ballots were inadvertently commingled with sixteen valid ballots, so that it was no longer possible to tell which two of the eighteen were disputable.

Appellants are John Pierce, a Republican candidate for Allegheny County Treasurer, Thomas Stepnick, a Republican candidate for Allegheny County Register of Wills, Susan Gantman, a Republican candidate for the Pennsylvania Superior Court, and her Campaign Committee, Susan Gantman for Superior Court, Inc. Appellees are John Driscoll, a Democratic candidate for the Superior Court, Carol Krupski, M.D., an Allegheny County voter whose absentee ballot was disallowed, and the Democratic State Committee of Pennsylvania. The parties inexplicably do not discuss how, or if, our decision will affect the ultimate outcome of any of the contested elections. We do note that appellant Pierce decisively lost the County Treasurer election by 60,307 votes, while appellant Stepnick decisively lost the Register of Wills election by 77,472 votes.¹ The statewide race for Superior Court was far closer, however, with appellant Gantman defeating appellee Driscoll by twenty-eight votes out of more than two million two hundred fifty-thousand cast.² Although it is again not clear from the pleadings, we presume that these certified results do not include the ballots at issue here, as this Court stayed the Commonwealth Court's order pending our resolution of the appeal. Moreover, it is not apparent from the pleadings, or the sparse record that exists, whether the ballots at issue, if counted, would have had an effect upon the outcome of the Superior Court election.³

The fifty-six absentee ballots at issue were hand-delivered to the Allegheny County Elections Board by third persons on behalf of non-disabled voters. Section 3146.6(a) of the Election Code unequivocally provides, inter alia, that absentee ballots must be delivered by mail or in person to the Board of Elections:

(a) At any time after receiving an official absentee ballot, but on or before five o'clock P.M. on the Friday prior to the primary or election, the elector shall, in secret, proceed to mark the ballot only in black lead pencil, indelible pencil or blue, black or blue-black ink, in fountain pen or ball point pen, and then fold the ballot, enclose and securely seal the same in the envelope on which is printed, stamped or endorsed "Official Absentee Ballot." This envelope shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of the elector's county board of election and the local election district of the elector. The elector shall then fill out, date and sign the declaration printed on such envelope. Such envelope shall then be securely sealed and the elector shall send same by mail, postage prepaid, except where franked, or deliver it in person to said county board of election....

25 P.S. § 3146.6(a) (emphasis added). Although the Election Code does not provide for third-party deliveries of absentee ballots, the Allegheny County Elections Board apparently has allowed third-party deliveries of absentee ballots in past elections. On October 10, 2003, with an eye to the upcoming November 4, 2003 election, the Republican Committee submitted a letter to the Board objecting to this practice and requesting that it strictly construe the "in person" delivery requirement set forth in Section 3146.6(a). In response, on October 22, 2003, the acting Chairman of the Board of Elections, the Honorable James McGregor of the Court of Common Pleas of Allegheny County, directed the Elections Division to refuse absentee ballots delivered by third parties. This policy was strictly enforced between October 22, 2003, and October 27, 2003.

Following a public hearing to reconsider the chairman's decision, however, the Board of Elections reversed course and decided to accept third-party deliveries of absentee ballots. On October 27, 2003, the Board issued a directive indicating the change in voting procedure; under the new procedure any person delivering another person's absentee ballot would be required to show photo identification and sign a form certifying that he was authorized by the voter to deliver the ballot and that the ballot had not been tampered with. The record indicates that, in addition to placing a poster on the Elections Division door, the Board published notice of the policy change in local newspapers. Allegheny County residents who applied to vote absentee in the November 4, 2003 election, however, received a package that included pre-printed instructions prepared by the Pennsylvania Secretary of State which followed the language of the Election Code:

Sign and print your name and the date beneath the "Absentee Elector's Declaration" on the reverse side of the Return Envelope and mail or deliver in person so that it reaches the Board of Elections office prior to the ballot deadline of 5:00 p.m., Friday, October 31, 2003.

By October 31, 2003—the deadline for receiving absentee ballots—the Elections Division in Allegheny County had received approximately 937 hand-delivered ballots.⁴

On October 31, 2003, appellants Pierce and Stepnick sought a temporary restraining order/preliminary injunction in the United States District Court for the Western District of Pennsylvania, alleging, inter alia, that the Board of Elections had violated the Equal Protection Clause by failing to enforce the "in person" delivery requirement of Section 3146.6(a) of the Election Code. After an emergency hearing, the court granted injunctive relief to "preserve the rights of voters to challenge the absentee ballots consistent with the procedures set forth in the election code." Federal District Court slip op. at 32.⁵ In granting the injunction, the court abstained from interpreting the unsettled question of whether Section 3146.6(a) is mandatory, but reasoned that appellants' equal protection claim would have a reasonable likelihood of success on the merits because if state courts approve Allegheny County's construction of the provision, disparate statewide policies would prevail and that, in turn, would result in unconstitutional vote dilution.⁶ Accordingly, the federal district court deemed the 937 hand-delivered absentee ballots "challenged" under Pennsylvania law and ordered that the ballots be set aside so that the challenges could be considered by the Board under Section 3146.8(e) of the Election Code.

On November 14, 2003, ten days after the General Election, the Board held a hearing to consider the challenges of appellants Pierce and Stepnick. Prior to the hearing, appellants withdrew challenges to 487 hand-delivered ballots, which included all hand-delivered ballots of voters who had identified themselves on their absentee ballot applications as having a physical disability or illness.⁷ Their remaining challenges concerned fifty-two absentee ballots that had been hand-delivered by third parties on behalf of absentee voters under the procedure established by the Board of Elections on October 27, 2003— i.e., a signed form certifying that the third party was authorized by the voter to deliver the absentee ballot, etc.—and more than 318 additional hand-delivered absentee ballots that may or may not have been delivered by third parties.⁸ After a hearing, the Board determined that a total of fifty-six absentee ballots had been hand-delivered by third persons for non-disabled voters, and that these ballots were therefore invalid. These fifty-six ballots included the fifty-two absentee ballots that had been delivered in accordance with the Board's October 27, 2003 procedure, and four additional absentee ballots that had been completed prior to October 27 by voters who testified that their ballots had been delivered by third parties.

The Board of Elections also determined that two hand-delivered ballots that the federal district court had ordered set aside had been inadvertently opened and commingled with a group of sixteen valid ballots, and thus sua sponte ruled that all eighteen "tainted" ballots were invalid. The Board rejected a challenge concerning a seventy-fifth absentee ballot, that of a county employee, Ronald Rydzak, who had delivered his ballot through the county's inter-office delivery system. Thus, all...