Shankey v. Staisey
| Decision Date | 27 October 1969 |
| Citation | 436 Pa. 65,257 A.2d 897 |
| Parties | Geo. W. SHANKEY, Jr., W. A. Schmid, Jr., Michael J. Kazell, John A. Chess, James A. Fedeli, Donald Mangone, Dr. W. A. Schmid, William E. Kennedy v. Leonard C. STAISEY, Thomas J. Foerster and Dr. William R. Hunt, Acting as theBoard of Elections of Allegheny County, Appellants. |
| Court | Pennsylvania Supreme Court |
Opinion Oct. 27, 1969.
Order Oct. 2, 1969.
Francis A. Barry, Deputy County Solicitor, Thomas M Rutter, Jr., Asst. County Solicitor, Pittsburgh, William C Sennett, Atty. Gen., Edward Friedman, Counsel Gen., Dept. of Justice, Harrisburg, for appellants.
John H. Neely, Pittsburgh, for appellees.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN ROBERTS and POMEROY, JJ.
The order of the Court of Common Pleas of Allegheny County, Civil Division, is reversed and the action of the Board of Elections of Allegheny County is sustained. Opinion to follow.
POMEROY, J., did not participate in this decision.
At issue in this case is the constitutionality of Act No. 17, Section 1 of 1968 known as The Amending Act of March 13, 1968, P.L. ---, No. 17, Section 1, amending the Act of June 3, 1937, P.L. 1333, Art. XIV, Section 1405 (25 P.S. § 3155 (Supp.1969)). [1] As amended, that statute says:
There is no dispute as to the facts in the case. The Constitutional Party, having received sufficient votes at the election preceding the May 20, 1969 primary, is a legal county party under the Act of June 3, 1937, P.L. 1333, Art. VIII, Section 801, as amended by the Act of July 28, 1941, P.L. 526, Section 1 (25 P.S. § 2831(b)). It was thus entitled to 'nominate all its candidates for office in such (Allegheny) county and in all political districts within such county.' None of the appellees filed nomination petitions but all received the highest number of votes cast for various offices in Allegheny County by electors of the Constitutional Party, their names having been 'written in.' The County Board of Elections refused to certify the votes cast for appellees for the named offices because the number of votes cast for each did not satisfy the requirements of § 1405.
Plaintiffs-appellees brought a mandamus action in the Common Pleas Court of Allegheny County to require the Board to certify the votes cast for plaintiffs for a place on the ballot. The lower court found that the statute in question violates Art. I, Section 5 of the Pennsylvania Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We reverse.
It is clear that the legislature may enact laws governing the conduct of general and primary elections. Winston v. Moore, 244 Pa. 447, 455, 91 A. 520 (1914); 25 Am.Jur.2d Elections § 150 (1966). It is also clear that no legislative enactment may contravene the requirements of the Pennsylvania or United States Constitutions. Article I, Section V of the Pennsylvania Constitution requires that 'elections * * * be free and equal.' It has never been expressly decided whether that clause applies to primary elections, and in light of the conclusions we reach, it is not absolutely necessary to decide the point. However, in view of the central role primary elections play in the electoral process and the crucial importance of that process to our form of government, it is difficult to see how a practice could be sustained which provided for something other than 'free and equal' primary elections. Assuming, therefore, that the clause applies to primaries, it is necessary to see how this statute fulfills its requirements:
'In a general way it may be said that elections are free and equal within the meaning of the Constitution when they are public and open to all qualified electors alike; when every voter has the same right as any other voter; when each voter under the law has the right to cast his ballot and have it honestly counted; when the regulation of the right to exercise the franchise does not deny the franchise itself, * * * and when no constitutional right of the qualified elector is subverted or denied him.' 244 Pa., supra at 457, 91 A. at 523.
There seems no question as to 'freedom'; each voter can vote for whomever he chooses. The complaint is as to 'equality'--that the statute wrongfully equates public petitions with secret ballots so as to deny the ballots of people who voted for appellees the same weight as the ballots of people who voted for major party candidates. The statute, however, promotes 'equal' elections by requiring every candidate who desires to appear on the general electoral ballot to have satisfied the same condition--the show of support by a set number of people. This can be done by petition or by primary election victory, and what is important is not that ballots and petitions are equated but that the number of people behind each are equated. Any other system would create unequal elections by giving minority party candidates and their supporters the advantage of not having to secure the same showing of public support before being put on the ballot as required by a majority party candidate.
It is also alleged that the statute violates the Equal Protection Clause of the Fourteenth Amendment. There are two classifications contained in the statute which must bear analysis. One is the distinction as to placement on the general election ballot between those who have shown the mandated amount of public support, whether by petition or votes in the primary, and those who have not. The other is the distinction between county and local elections, to which the statute applies, and state-wide elections, to which it does not. It is the generally accepted rule that the Equal Protection Clause is satisfied when there is a reasonable basis for the classification created and that a scheme must be stricken down when its distinctions are 'invidious.' Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); 16A C.J.S. Constitutional Law § 505 (1956).
As to the first classification created by Section 1405, there appears to be a reasonable basis for the legislature's action. What this Court must consider is both the right of the elector to vote for the candidate of his choice and the right of a candidate to have his name appear on the ballot. By providing for write-in votes, the Election Code gives every elector the right to vote for whomever he chooses. The right of a candidate to have his name on the ballot is not such an absolute one, however, because there is a competing interest at stake--the avoidance of an unduly complicated ballot which may confuse the voter and make impossible the use of voting machines. The legislature has taken this interest into account by creating a two-tier system a candidate must satisfy before his name may appear on the ballot. First, his party must become a legal state or county party under the requirements of the Act of June 3, 1937, P.L. 1333, Art. VIII, § 801, as amended by the Act of July 28, 1941, P.L. 526, § 1 (25 P.S. § 2831). Then the individual must show a minimum of public support either through a nomination petition (§ 912) or through the votes received at the primary (§ 1405). The legislature felt that a candidate should have to show at least this much public support before he deserved a spot on the ballot.
In past cases this Court and other courts have recognized the avoidance of a cluttered ballot and the possible necessity of using paper ballots rather than voting machines as a legitimate and reasonable goal of public policy. In Kerns v. Kane, 363 Pa. 276, 283, 69 A.2d 388, 392 (1949), this Court said: 'Sec. 801 (25 P.S. § 3831) was designed to prevent election ballots and voting machinery from being cluttered with the names of inactive or defunct political parties and their candidates,--a condition that can become especially serious in connection with voting machines. * * *' See also, Winston v. Moore, supra; State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041 (1910). [2] Thus, when the legislature has created a distinction between those showing a certain minimum of public support and those who do not, it has created a classification that meets the requirements of the Equal Protection Clause.
The second classification arises from the statute's non-applicability to state-wide elections as by its terms it only applies to city, county, borough and other local contests. It appears that this distinction is related to distinctions created in 25 P.S. § 2831 pertaining to the definition of political party. Under that section a 'political party within the State' is defined as one receiving at the last general election 'in each of at least ten counties of the State not less than two percentum of the largest entire vote cast in each of said counties for any elected candidate, and polled a total vote in the State equal to at least two per centum of the largest entire vote cast in the State for any elected candidate.' A 'political party within said county' which the Constitutional Party is, is defined as one whose candidates...
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