Appeal of Yerger

333 A.2d 902, 460 Pa. 537, 1975 Pa. LEXIS 687
CourtSupreme Court of Pennsylvania
DecidedMarch 18, 1975
DocketNo. 74
StatusPublished
Cited by44 cases

This text of 333 A.2d 902 (Appeal of Yerger) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Yerger, 333 A.2d 902, 460 Pa. 537, 1975 Pa. LEXIS 687 (Pa. 1975).

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

This election contest presents the question whether write-in votes may be counted when they are cast on a voting machine for a candidate whose name appears on the face of the machine. The trial court directed that such votes be counted. We reverse.

On November 6, 1973, an election was held to select the Tax Collector of Jackson Township. The result of the official canvass was that William Yerger had received 207 votes and Norman Frederick had received 205 votes. A petition to contest the election was filed by supporters of Frederick, challenging the failure to count eight write-in votes.1 Appellant Yerger answered that those votes were void because they were cast, in violation of section 1216(e) of the Election Code, on a voting machine for a candidate whose name appeared on the face of the machine.2

[540]*540After hearing evidence,, the trial court found that Frederick and Yerger were listed on the machine as candidates for tax collector. Above the line on the machine containing the names of Yerger and Frederick as candidates for tax collector was a slide which

“when pushed up enabled a voter to write in a vote for the office of tax collector and when this [slide] was raised, it was no longer possible to register a vote by activating the lever of either of the candidates whose names were printed on the machine . . . because once the write-in [slide] was raised, the only vote that could thereafter be registered on the machine for the office was a write-in vote.”

The trial court concluded that section 1216(e)’s command that “no irregular ballot shall be cast on a voting machine for any person . . . whose name appears on the machine as a candidate for that office, and any ballot so cast shall be void” 3 was unconstitutional. It first noted that write-in votes cast on paper ballots on which the name of the same candidate is printed are counted. James Appeal, 377 Pa. 405, 105 A.2d 65 (1954). Relying on dictum in Parente Appeal, 390 Pa. 249, 253, 135 A.2d 62, 64 (1957), the court held that subjecting write-in votes cast on machines to a different rule violated the command of article VII, section 6 of the [541]*541Pennsylvania Constitution, P.S., that election laws be uniform.

Because it concluded that the Election Code provision in issue was unconstitutional, the trial court ordered the write-in votes counted and declared Frederick the winner. This appeal ensued.4

Before considering the constitutional question decided by the trial court, we must first resolve an issue of statutory construction. On its face, section 1216(e) appears capable of only one construction, for it unambiguously commands that

“no irregular ballot shall be cast on a voting machine for any person for any office, whose name appears on the machine as a candidate for that office, and any ballot so cast shall be void and not counted.” 5

Appellees, however, contend that section 1107(h) of the Election Code,6 relating to standards required of voting machines, alters the impact of section 1216(e). Section 1107(h) requires that the machine

“permit each voter to change his vote for any candidate . . . up to the time that he begins the final operation to register his vote.” 7

Here there appears to be a conflict between these two sections, for both cannot be given full literal effect on existing voting machines. The trial court found that the machine used in this election does not permit a voter who raises the write-in slide to vote for that office except by write-in. If a voter lifts the slide either by accident [542]*542(there were several write-in contests on nearby lines) or intending to cast a write-in vote, he cannot, “before he begins the final operation to register his vote,” correct his error or change his mind in order to cast a regular vote for one of the candidates listed on the machine.

It is therefore argued that the apparent conflict should be avoided by construing section 1216(e) to apply only where consistent with section 1107 (h). We find this argument without merit.

First, as this Court said in Cali v. Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962):

“It is an established principle of . construction that, where a conflict exists between a specific . . . provision which is applicable to a particular case and certain general provisions which, were it not for such conflict, might apply, the specific provision will prevail.”

Id. at 300, 177 A.2d at 829, quoting Lennox v. Clark, 372 Pa. 355, 371, 93 A.2d 834, 841 (1953); Statutory Construction Act, 1 Pa.C.S. § 1933 (Special Pamphlet, 1973). Section 1216(e) deals solely with write-in votes cast on machines, while section 1107(h) relates to the operation of the machine generally. Clearly, the specific language of section 1216(e) cannot be robbed of its effect by the general provisions of section 1107 (h).

Second, to construe section 1107 (h) as a limitation on section 1216(e) would deprive the latter section of all meaning. As the trial court found in this case, the locking of the regular levers when the write-in slide is raised is necessary

“because if it was possible for a write-in lever to be raised, a write-in vote cast, and then the write-in lever to be lowered and still permit voting for candidates printed on the machine for that office, more than one vote for that office could be registered on the machine [543]*543by each voter whereas a voter is permitted only one vote per man to be elected.”

Consequently, the feature of the machine causing the apparent conflict is essential to the very operation of voting machines permitting write-in votes and cannot operate to defeat section 1216(e) without making that section entirely inoperative.

Moreover, the two sections are capable of a construction which allows both to operate. This can be accomplished by limiting the scope of section 1107(h) to the mechanism involved in casting regular ballots, leaving irregular ballots to be governed by section 1216(e) In the absence of a manifestly contrary intention on the part of the Legislature, such a construction is mandatory. See Kelly v. Philadelphia, 382 Pa. 459, 472-73, 115 A.2d 238, 244 (1955); Statutory Construction Act, 1 Pa. C.S. § 1933 (Special Pamphlet, 1973). We therefore conclude that the disputed portion of section 1216(e) is to be given full effect in accordance with its words unless that result is prohibited by the Constitution.8

The constitutional provision which is said to render section 1216(e) invalid is article VII, section 6 of the Pennsylvania Constitution, which provides, with exceptions not here material, that “[a] 11 laws regulating the holding of elections . . . shall be uniform through[544]*544out the State . .

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Honey, H. v. Lycoming Co. Offices of Voter Svcs.
Supreme Court of Pennsylvania, 2026
Shambach v. Bickhart
845 A.2d 793 (Supreme Court of Pennsylvania, 2004)
In re Pennsylvania General Election for Snyder County Commissioner
841 A.2d 593 (Commonwealth Court of Pennsylvania, 2003)
Wein v. Williamsport Hospital
39 Pa. D. & C.4th 137 (Lycoming County Court of Common Pleas, 1998)
Fumo v. Hafer
625 A.2d 733 (Commonwealth Court of Pennsylvania, 1993)
McMenamin v. Tartaglione
590 A.2d 802 (Commonwealth Court of Pennsylvania, 1991)
COM., DEPT. OF TRANSP. v. Campbell
588 A.2d 75 (Commonwealth Court of Pennsylvania, 1991)
Farago v. Sacred Heart General Hospital
562 A.2d 300 (Supreme Court of Pennsylvania, 1989)
Commonwealth v. Snyder
560 A.2d 165 (Supreme Court of Pennsylvania, 1989)
M. Bucks Ea v. Ex. Coun., M. Bks. Avts
552 A.2d 763 (Commonwealth Court of Pennsylvania, 1989)
Consulting Engineers Council v. Commonwealth
551 A.2d 380 (Commonwealth Court of Pennsylvania, 1988)
Commonwealth v. Smith
544 A.2d 991 (Superior Court of Pennsylvania, 1988)
Patrick v. Pa. Bd. of Prob. & Parole
532 A.2d 487 (Commonwealth Court of Pennsylvania, 1987)
Commonwealth v. Lyons
530 A.2d 1345 (Superior Court of Pennsylvania, 1987)
Pekular v. Eich
513 A.2d 427 (Supreme Court of Pennsylvania, 1986)
Cheng v. Cheng
500 A.2d 1175 (Supreme Court of Pennsylvania, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
333 A.2d 902, 460 Pa. 537, 1975 Pa. LEXIS 687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-yerger-pa-1975.