Starkey v. Smith

283 A.2d 700, 445 Pa. 118, 1971 Pa. LEXIS 653

Opinions

Opinion

Per Curiam,

This is an appeal from a decree of the Court of Common Pleas of Centre County issued on October 26,1971, granting a mandatory preliminary injunction. That decree, in effect, directed the Centre County Board of Elections to strike from the rolls of registered electors one hundred and ninety-five student registrants. The decree further directed the Board of Elections to determine the propriety of the registration of certain other student registrants. As a result of the Board of Elections’ investigation, approximately three hundred and fifty more student registrants were struck from the Centre County rolls of registered electors.

All of the students struck had been previously registered pursuant to a Supplemental Temporary Restrain ing Order issued on September 16, 1971, by the United States District Court for the Eastern District of Pennsylvania in Fair v. Osser, C.A. No. 71-2212. That order extended the period of registration for students for five days beyond the date upon which it would have otherwise expired.

At the request of the Commonwealth, which had been permitted to intervene in the proceedings in the Court of Common Pleas, Mr. Justice Roberts granted a supersedeas on November 1,1971, ordering inter alia, that the approximately five hundred and fifty students whose registrations are disputed be permitted to vote in the November 2, 1971, election and that their votes be segregated pending argument before this Court on the validity of the tidal court’s decree.

The basic question before this Court is whether plaintiff-appellees’ challenge to the validity of the student registrations is a cause of action cognizable in equity. We conclude that it is not. The Pennsylvania election statutes provide an adequate, complete and appropriate statutory remedy for challenging registrations. Act of April 29, 1937, P. L. 487, §34, as amended, 25 P.S. §951-34

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Nor are we persuaded by appellees’ contention that the stipulation and order entered into on September 27, 1971, in the federal proceeding of Fair v. Osser, supra, precluded the Board of Elections from following the voter registration challenge procedures specified in the election statutes. That stipulation and order made it clear that any student was to be permitted to register “. . . at his college residence, provided sueh student meets the residential qualifications of an elector as set forth in all other sections of the Constitution of Pennsylvania and the Pennsylvania Flection Code of 1987.” (Emphasis added).

Moreover, even if we were convinced, and we are not, that the procedure followed by the plaintiff-appellees was appropriate, a reading of the record indicates that there was no evidence introduced to show that any individual student registrant could be struck under the provision of the Pennsylvania election statutes for striking registered electors. Act of April 29, 1937, P. L. 487, §34, as amended, 25 P.S. §951-34. Absent such evidence, there is no basis for the decree.

Accordingly, the decree of the Court of Common Pleas is vacated and the record remanded with directions to dismiss the complaint and to order that all ballots cast by registered student electors in Centre County pursuant to the special supersedeas of November 1, 1971, be tabulated and the results of said balloting be incorporated with the official returns of the general balloting in Centre County on November 2, 1971, as returned in accordance with the provisions of the Election Code. Each party to bear own costs.

Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case.

The applicable statutory procedure for challenging the legality of an elector’s registration is as follows: “At any time not later than the tenth day preceding any election or primary, any qualified elector . . . may petition the commission to cancel or suspend the registration of any registered elector . . . setting forth, under oath, supported by the affidavits of at least two adult persons, sufficient grounds for such cancellation or suspension, and also setting forth that due notice of the time and place when said petition would be presented had been given to the person so registered, personally, at least twenty-four hours prior to the presentation of the same . . . whereupon the commission shall forthwith cancel or suspend the registration of such elector, and amend accordingly the general and district registers and the other records affected, unless the person so registered shall appear and show cause why the same should not be done.” Act of April 29, 1987, P. L. 487, §34, as amended, 25 P.S. §951-34.