Kauffman v. Osser

• Decision Date: 20 January 1971
• Docket Number: Civ. A. No. 70-2432.
• Citation: 321 F. Supp. 327
• Parties: Sylvia KAUFFMAN and Phyllis Gitlin v. Maurice S. OSSER, Thomas P. McHenry and Louis Menna, County Commissioners of Philadelphia County sitting as County Board of Elections, and Vincent Gaitley, Chief Clerk County Board of Elections.
• Court: U.S. District Court — Eastern District of Pennsylvania

321 F. Supp. 327

Sylvia KAUFFMAN and Phyllis Gitlin v. Maurice S. OSSER, Thomas P. McHenry and Louis Menna, County Commissioners of Philadelphia County sitting as County Board of Elections, and Vincent Gaitley, Chief Clerk County Board of Elections.

Civ. A. No. 70-2432.

United States District Court, E. D. Pennsylvania.

January 20, 1971.

Sheldon W. Farber, Norristown, Pa., for plaintiffs.

Edward G. Bauer, Jr., City Sol., John M. McNally, Jr., Asst. City Sol., Philadelphia, Pa., for defendants.

Before HASTIE, Circuit Judge, and LORD and HIGGINBOTHAM, District Judges.

OPINION

JOSEPH S. LORD, III, District Judge.

Plaintiffs, registered voters who are enrolled as members of the Democratic Party, seek injunctive relief under 42 U.S.C. § 1983¹ restraining the defendant state election officials from issuing and counting civilian absentee ballots in general elections² pursuant to Pub.L. No. 375 (Dec. 11, 1968), which amended the absentee voter provisions of the Commonwealth of Pennsylvania's Election Code of 1937, 25 Pa.Stat.Ann. § 3149.1 (1963), as amended, 25 Pa.Stat. Ann. § 3146.1 (Supp.1970). The plaintiffs also seek a declaratory judgment pursuant to 28 U.S.C. § 2201 (Supp. 1970) that P.L. 375 violates the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution.

The complaint was filed on September 4, 1970, and on September 24, 1970, defendants filed a motion to dismiss. A hearing was set for September 28, 1970, before the three-judge court which had been convened pursuant to 28 U.S.C. §§ 2281-2284. That hearing was adjourned after a short time in order to allow counsel to take certain depositions and to enter, if possible, into stipulations of fact. Depositions were taken, a stipulation was entered into, and on October 9, 1970, the case was submitted to the court as if on final hearing.³

Article 7, sec. 1, of the Pennsylvania Constitution, provides that all citizens who satisfy certain age, residency, and length of citizenship requirements

"* * * shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of voters as the General Assembly may enact."

However, while a person who fulfills the state's age, residency, and citizenship requirements and who registers⁴ to vote is entitled to vote, in fact he can only do so if he conforms to the state's requirements relating to the receipt and casting of ballots.

Any person who is entitled to vote may vote at the polls if he appears at the appropriate polling place at the appropriate time, 25 Pa.Stat.Ann. § 3045 (1963), and signs a voter's certificate, 25 Pa.Stat.Ann. § 3050 (1963). In order to protect against the possibility that a person not entitled to vote may participate in the election, it is provided that a person voting at the polls

"* * * May be challenged by any qualified elector, election officer, overseer, or watcher at any primary or election as to his identity, as to his continued residence in the election district or as to any alleged violation of the provisions of section 1210 of this act." 25 Pa.Stat.Ann. § 3050 (1963).

The election can be contested after the results are in on the ground that, inter alia, unqualified voters participated. 25 Pa.Stat.Ann. § 3326 (1963).

While all persons who are entitled to vote may vote at the polls, there is a sub-class of such persons the members of which are also authorized to receive and cast their ballots in a different manner. Article 7, sec. 14, of the Pennsylvania Constitution provides that

"The Legislature shall, 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 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 convass of their votes in the election district in which they respectively reside."

25 Pa.Stat.Ann. § 3146.1 (Supp.1970) includes civilians who will be absent due to their "* * * duties, occupation or business * * *" among the classes of persons entitled to vote by absentee ballot, and elsewhere in Pub.L. No. 375 (Dec. 11, 1968) it is provided that

"* * * the words `duties, occupation, business ' (sic) shall include leaves of absence for teaching or education, vacations, sabbatical leaves * * * and also include an elector's spouse who accompanies the elector." 25 Pa.Stat.Ann. § 2602(z-3) (Supp. 1970).

Those who ground their application for an absentee ballot on an absence due to "duties, occupation or business" generally must apply to the county election board not earlier than fifty days before the election and not later than 5:00 P.M. of the first Tuesday prior to the election. 25 Pa.Stat.Ann. § 3146.2a (Supp. 1970). This application form

"* * * shall be signed by the applicant and shall include the surname and christian name or names of the applicant, his occupation, date of birth, length of time a resident in voting district, voting district if known, place of residence, post office address to which ballot is to be mailed, the reason for this absence, and such other information as shall make clear to the county board of elections the applicant's right to an official absentee ballot." 25 Pa.Stat.Ann. § 3146.2(e) (1) (Supp.1970).

The county election board decides whether or not to issue an absentee ballot on the basis of the information in the absentee application and the permanent registration card. Not less than five days before the election the board must post a complete list of persons to whom absentee ballots have been issued. 25 Pa.Stat.Ann. § 3146.2c (Supp.1970). Approval of an application by the Board is a final and binding decision, except that challenges may be made on the ground that the applicant did not qualify as an absentee elector if such challenge is made by 5:00 P.M. on the Friday before the election. 25 Pa.Stat.Ann. § 3146.2b (Supp.1970).

Absentee ballots, enclosed in an envelope bearing a "voter's declaration,"⁵ are received by the county election board and then distributed to the local election districts with the other election supplies. 25 Pa.Stat.Ann. § 3146.8 (Supp.1970). These absentee ballots are canvassed, along with all other votes, on election evening by district election officials, and at that time poll watchers have an opportunity

"* * * to challenge any absentee elector upon the ground or grounds (1) that the absentee elector is not a qualified elector; or (2) that the absentee elector was within the county of his residence on the day of the primary or election during the period the polls were open, except where he was in military service or except in the case where his ballot was obtained for the reason that he was unable to appear personally at the polling place because of illness or physical disability; or (3) that the absentee elector was able to appear personally at the polling place on the day of the primary or election during the period the polls were open in the case his ballot was obtained for the reason that he was unable to appear personally at the polling place because of illness or physical disability." 25 Pa.Stat.Ann. § 3146.8(e) (Supp.1970).

All challenges to absentee applications and absentee ballots require a deposit of ten dollars, which sum is only refunded if the challenge is sustained or the challenge is withdrawn within five days after the primary or election. 25 Pa.Stat. Ann. § 3146.8(f) (Supp.1970).

In evaluating the contention that Pennsylvania's civilian absentee elector provisions (P.L. 375) deprive plaintiffs of their constitutional rights, we consider the following evidence which we find as facts.

1. Plaintiffs are citizens of the Commonwealth of Pennsylvania and residents of the City and County of Philadelphia, residing respectively at 13th Street and Lindley Avenue and at 3900 Ford Road; they are registered voters who are enrolled as members of the Democratic Party and who intend to vote in person at their proper polling places in the general election of 1970 and at succeeding elections thereafter.

2. Defendants Osser, McHenry and Menna, County Commissioners of Philadelphia sitting in their capacity as the County Board of Elections, and defendant Gaitley, the Chief Clerk of that Board of Elections, will act pursuant to the provisions of P.L. 375.

3. Approximately two to three percent of the registered voters of Pennsylvania will vote by absentee ballot in the November, 1970, election.

4. In the general election of 1969, the only general election yet held in Pennsylvania under the present absentee voter provisions, the Democratic candidate for statewide office received, in the County of Philadelphia 48.24% of all votes cast in person at the polls and 41.23% of all civilian absentee votes. In Montgomery County, the Republican candidate received a share of the absentee vote 7.67 percentage points higher than his share of the votes at the polls.

5. Before the enactment of P.L. 375 approximately 35-50% of absentee applicants could be challenged successfully. The main ground for successful challenge was that the applicant—though entitled to vote—failed to qualify as an absentee elector.

6. (a) The county board of elections in Philadelphia is approximately one block removed from the county registration commission and can accommodate eight persons examining applications for absentee ballots.

(b) The county board of elections in Montgomery County is one floor above the county registration commission and can accommodate six persons examining absentee ballot applications.

(c) The county board of elections in Delaware County is across the corridor (approximately 60 feet) from the county registration commission and can accommodate five persons examining absentee ballot applications.

7. The Montgomery...