Wieskerger Appeal

290 A.2d 108, 447 Pa. 418, 1972 Pa. LEXIS 546

• Court: Supreme Court of Pennsylvania
• Decided: April 20, 1972
• Docket: Appeal, 222
• Status: Published

Opinions

Opinion by

Mr. Justice Nix,

This is an appeal from the Luzerne County Court of Common Pleas affirming decision of the Luzerne County Return Board in the Wyoming Area School Director Contest. The parties herein are two of six aspirants for the three seats that were to be filled in the general election held on November 2, 1971.

A stipulation of counsel provided;

“1. It is hereby agreed and stipulated by and between Anthony B. Panaway and Carmen John Maffei, counsel for appellant, and J. Earl Langan, counsel for appellee, that there are 16 absentee ballots marked in either red or green ink, which have been counted in the votes for school director of Wyoming Area in the November 2, 3.971 election, which resulted in the election of Casimir Kizis.

“2. It is further agreed and stipulated that the only question for this Honorable Court to resolve is the legality of the marking and counting of the aforesaid ballots in the election.

“3. It is further agreed and stipulated that counsel for appellant will withdraw and does hereby withdraw any other objections they have to the decision of the Luzerne County Court of Common Pleas in the aforesaid election matter.” By virtue of the small plurality the resolution of this issue will decide the election for the third seat which is in contest. This Court assumed plenary jurisdiction under the Appellate Court Jurisdiction Act of 1970, July 31, P. L. 673, Art. II, §205, 17 P.S. §211.205, to assist in the determination of the dispute.¹

The pertinent provision of the Election Code provides as follows: “[a] No ballot which is so marked as to be capable of identification shall be counted. Any ballot that is marked in blue, black or blue-black ink, in fountain pen or ballpoint pen, or black lead pencil or indelible pencil, shall be valid and counted."²

In dismissing the objections to the ballots marked in red ink, but otherwise in order, the court en banc stated: “So that the real test of the validity on an absentee ballot marked in this manner is not if it is in blue, black, red or green, but it is capable of identification."³

As stated in the Reading Election Recount Case, 410 Pa. 62 (1963): “the power to throw out a ballot for minor irregularities should be sparingly used. It should be done only for very compelling reasons. . . . ‘Marking a ballot in voting is a matter not of precision engineering but of an unmistakable registration of the voter’s will in substantial conformity to statutory requirement1 ”. In construing election laws while we must strictly enforce all provisions to prevent fraud our overriding concern at all times must be to be flexible in order to favor the right to vote. Our goal must be to enfranchise and not to disenfranchise. See, James Appeal, 377 Pa. 405 (1954). This section of the code merely assures the validity of ballots marked in blue, black or blue-black ink. It does not as the appellant urges us to find specify that any other type of marking will necessarily be void. We have noted in other cases that the dominant theme of this section is to prevent ballots from being identifiable. “A ballot should not be inva1',bated under Section 1223 of the Act of 1937, supra 25 P.S. §3063, unless the voter purposely makes a mark thereon or commits some other act in connection with his ballot to distingush and identify it.” McKelvey Appeal, 444 Pa. 392 at 396 (1971). The proper interpretation of this portion of the statute considering the occasion for its enactment, the mischief to be remedied, and the policy to liberally construe voting laws in the absence of fraud, is that the ballot is valid unless there is a clear showing that the ink used was for the purpose of making the ballot identifiable.

In view of the prevalent use of multi-colored inks today, particularly in ballpoint pens easily accessible to all, we are not persuaded that the electors involved herein attempted by the use of red ink to render their ballots capable of identification.

Accordingly, we affirm the order of court en banc.

1 In view of the stipulation of counsel and our acceptance of the cause under Sec. 205 of the Appellate Court Jurisdiction Act there is no reason to consider the question of scope of review raised by the appellee.

2 Act of August 13, 1963, P. I/. 707, §19, 25 P.S. §3063 (1971 supplement).

3 See. lower court’s opinion at page 4.