In re Contest of 1979 General Election for the Office of District Attorney

414 A.2d 310, 489 Pa. 404, 1980 Pa. LEXIS 599
CourtSupreme Court of Pennsylvania
DecidedApril 25, 1980
DocketNos. 80-1-33, 80-1-47, and 80-1-56
StatusPublished
Cited by8 cases

This text of 414 A.2d 310 (In re Contest of 1979 General Election for the Office of District Attorney) 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
In re Contest of 1979 General Election for the Office of District Attorney, 414 A.2d 310, 489 Pa. 404, 1980 Pa. LEXIS 599 (Pa. 1980).

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

This case arises out of the 1979 General Election in Washington County, Pennsylvania, involving the race for District Attorney. John C. Pettit was the Republican nominee and Herman J. Bigi the Democratic nominee. The election was conducted by the use of paper ballots. After the initial counting of the ballots in the two hundred five [407]*407precincts in Washington County was completed, Pettit had an unofficial lead of fifty-five votes. However, after the recanvassing of the vote, Bigi led by an unofficial forty-eight votes. Prior to completion of the recanvassing, both Bigi and Pettit filed Petitions for a General Election Contest alleging, inter alia, certain errors and irregularities in the various ballots as counted in the precincts. Three Judges, sitting both as the county election board by virtue of the county commissioners running for office and as the court en banc, unanimously ordered that all two hundred five ballot boxes be opened and that each ballot be scrutinized and counted individually in order to ascertain an accurate count.

Upon completion of the recount, numerous ballots went before the court because of challenges made by both sides during the recount. The lower court ruled on over two thousand challenged ballots. Broadly summarized, the challenges to the lower court’s rulings fall into three categories: 1) there was a challenge to the decision with respect to ballots which were allegedly fraudulently or erroneously marked; 2) there was a challenge to the decision not to count ballots with numbered corners left on; and 3) there was a challenge to the decision to invalidate ballots containing more than one mark in the straight-party column. Since the ballots with numbered corners left on are not contested on appeal, we will begin with a consideration of Bigi’s challenge to the lower court’s decision that ballots containing more than one mark in the party column should not have been counted.

In order to describe the nature of the challenge to the decision not to count ballots in which more than one mark appeared in the party column — “double-straight ballots” — a brief description of the ballot will be helpful. The official election ballot prepared by the Washington County Election Office contained the following political party and political body designations in the party column on the upper left-hand side of the ballot:

[408]*4081. Republican

2. Democratic

3. Vincent Register Wills

4. In some precincts of the various municipalities of Washington County, other alleged political body designations; for example, in the Second Precinct of Centerville, “Fowler for Council”; in the Eighth Ward of the City of Washington, “Comer for Constable”; in the Sixth Ward of the City of Washington, “Muti for Constable”; in the Nineteen Precincts of the City of Washington, “Marshman for Mayor”.

A graphic representation of the pertinent portions of both the right and left sides of the ballot is as follows:

Both the Republican party and the Democratic party had a full slate of candidates for offices as to which statewide or county-wide voting was required. The political body “Vincent Register Wills” was represented on the ballot by a single candidate, Josephine Vincent, who was a contender for a single office, the Register of Wills. No other person was listed as a candidate of the “Vincent Register Wills” political body for any other office shown on the ballot.

The one hundred twenty-nine ballots at issue in the present case were marked in one of the two following manners.

[409]*409I

It will be noted that only the two party column marks and no other marks appeared on each of these ballots.

During the recount, all of the double-straight ballots containing either a straight Republican or a straight Democratic vote and a vote for “Vincent Register of Wills” were invalidated by the attorney-master who was appointed by the court to supervise the recount. These ballots were challenged respectively by both parties and eventually, the one hundred twenty-nine such ballots went before the court. Had the ballots not been invalidated, and the votes counted, Bigi would have received a net gain of ninety-two votes.

[410]*410The lower court ruled on the various challenges to individual ballots, and it also ruled, Judge Bell dissenting, that ballots on which “double-straight” voting was indicated would not be counted. The result of this ruling was that Bigi lost the election by forty-eight votes.

The Election Code provides that persons who wish to vote a straight party ticket must be given an opportunity so to indicate on the ballot.1 Accordingly, the ballot must be divided into two major parts. A party column, consisting of a list of the names of all of the political bodies or parties, appears to the extreme left of the ballot. The other part of the ballot consists, in the main, of the names and offices for which named individuals, identified by party affiliation, are running. The voter may indicate on the ballot, by placing a mark in a party square, and no other, that he wishes to vote for all of the candidates of a political party; or he may vote for each individual candidate by placing marks in the squares opposite each candidate’s name; or he may indicate that he wishes to vote for all of the candidates of his chosen political party except for those candidates whom he has [411]*411individually identified by placing marks in the squares next to the names of each, regardless of their party affiliation, in which case he makes a mark in the party square in addition to the individual marks.

In In re Recount of Ballots Cast in General Election Held on November 6, 1978 Appeal of Walko, 457 Pa. 279, 325 A.2d 303 (1974) this Court held that ballots which had been cast with the voter’s identification number still attached should have been counted where there was no instruction on the face of the ballot that the corners should be removed before casting and where there was nothing on the record to indicate that voters had received any oral instruction from election officials that the corners should be removed before casting. The court reached this result in spite of a requirement of the Election Code § 3055, which provided: “Any ballot deposited in a ballot box . . . without having the said number torn off shall be void and shall not be counted.” 457 Pa. at 287, 325 A.2d at 308. The Court’s rationale for this holding was that while it was a proper legislative purpose to attempt to insulate the voter from untoward influences in the exercise of his judgment by eliminating any device by which any particular ballot might be identified, it would be an unreasonable encroachment on the franchise to refuse to count these ballots where the voter had complied with all instructions on the ballot and where there was no showing of improper influence, 457 Pa. at 288, 325 A.2d at 309. Similarly, in Reading Election Recount Case, this Court stated:

As enunciated in the Norwood case [382 Pa. 547, 116 A.2d 552 (1955)], the power to throw out a ballot for minor irregularities should be sparingly used. It should be done only for very compelling reasons. Again, in Bauman, [351 Pa.

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Bluebook (online)
414 A.2d 310, 489 Pa. 404, 1980 Pa. LEXIS 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-contest-of-1979-general-election-for-the-office-of-district-attorney-pa-1980.