Absentee Ballots Case

¶1Concurring and Dissenting Opinion by

¶2■ I concur to the extent that the majority sustains the action of the court below with respect to those challenges directed to the qualifications of the elector, as set forth in §20 of the 1963 amendment to the Election Code,1 to exercise the privilege of absentee voting. I also concur with respect to the challenges directed to matters which could have been raised “had . . . [the elector] presented himself in his own district to vote other than by absentee ballot. . . .” Act of August 13, 1963, P.L. 707, §24, 25 P.S. §3146.8 (Supp. 1965).

¶3I dissent, however, from any action on the part of this Court which sanctions a post-election attack on the sufficiency or regularity of the application for an absentee ballot. As I read the pertinent provisions of the Act, once the county board of elections has approved the application for an absentee ballot, the form of the application, not being a matter of substance, is no longer subject to challenge.

¶4In my view, challenges directed to the sufficiency or regularity of the application for an absentee ballot *514must be distinguished from a challenge to the qualifications of the individual as a “qualified elector” within the meaning of the Act. The former embodies attacks on the validity of the ballot because of errors of dates, the absence of the attending physician’s signature, the failure to state the nature of the disability which prevents attendance at the polls, or similar errors of form on the application. Challenges directed to the qualifications of the elector include all those matters which could be raised in attacking the right of one appearing at the polls to cast his vote, such as age, citizenship, registration, residence, and the like,2 and, more specifically, the issue of whether the elector falls within the class of persons authorized by §203 to exercise the privilege of absentee balloting. See the Act of August 13, 1963, P.L. 707, §24, 25 P.S. §3146.8 (Supp. 1965).

¶5An examination of the 1963 amendment reveals that §24,4 the section which provides for challenges to absentee ballots, makes reference only to the qualifications of the elector, as therein set forth. Thus, by necessary implication, challenges directed to matters of form with respect to the application for the ballot are foreclosed.

¶6My conviction on this point is strengthened by the fact that §21 of the Act provides that in the event that an application for an absentee ballot is rejected by the county board of election, the board must inform the elector immediately, stating the reasons for disapproval. Act of August 13, 1963, P.L. 707, 25 P.S. §3146.2b (Supp. 1965). The obvious purpose of the requirement *515is to provide the elector with an opportunity to take curative action, if possible, and thus to preserve his privilege of absentee balloting. To permit, as the majority does, a challenge to a ballot subsequent to the election, on the ground of some technical error of form on the application, when curative action on the part of the elector is no longer possible, is to unreasonably disenfranchise the voter. Since all matters of substance may be raised by a challenge to the qualifications of the elector, I do not believe that the Legislature intended that a voter be deprived of his significant interest in having his vote counted merely on the ground of some technical error of form on his application for an absentee ballot. Once the elector has relied upon the issuance of the ballot, as an approval of his application, I see no justification for depriving him of his right to have his ballot counted because of some irregularity of form.

¶7Finally, the position here advanced is consistent with the principle which has guided the decisions of this Court in previous cases that an individual is not to be disenfranchised except for compelling reasons. Thus, we have repeatedly taken the position that the election code should be liberally construed in order to enfranchise voters and that the power to disallow a ballot for minor irregularities should be sparingly exercised. See, e.g., Perles v. Northumberland County Return Board, 415 Pa. 154, 202 A. 2d 538 (1964); Reading Election Recount Case, 410 Pa. 62, 188 A. 2d 254 (1963); Norwood Election Contest Case, 382 Pa. 547, 116 A. 2d 552 (1955); Bauman Election Contest Case, 351 Pa. 451, 41 A. 2d 630 (1945). In my view, those admonitions control the disposition of challenges directed to minor irregularities in the application of the elector for an absentee ballot.

¶8Accordingly, I would remand the case to the court below with directions to dismiss all challenges which are predicated on such matters.

¶13*516Dissenting Opinion by

¶14Paul E. Wagner, candidate for the State Senate, took these appeals from the decision of the Court of Common Pleas of Schuylkill County which reversed the County Election Board and sustained challenges to 153 absentee electors’ ballots which were cast in the 1964 election. These appeals were taken from the Board to the Court of Common Pleas under §1308 of the Election Code which was added to the Code by §24 of the Act of August 13, 1963, P.L. 707, 25 P.S. §3146.8. Section 1808 allows appeals to the Court of Common Pleas, hut, unlike many other Sections of the Election Code is silent as to the right of appeal from the Court of Common Pleas to an appellate Court. Because of this fact an appeal will be considered by this Court on broad certiorari and not, as the majority think, on narrow certiorari. Democratic County Committee Appeal (Musmanno-Blatt), 415 Pa. 327, 203 A. 2d 212. Cf. also Fitch Appeal (No. 1), 405 Pa. 169, 174 A. 2d 23; Culfen Appeal, 392 Pa. 602,141 A. 2d 389; Kaufman Construction Company v. Holcomb, 357 Pa. 514, 55 A. 2d 534.

¶15The election of a State Senator is of such importance that even if his term has expired the case falls within the exception to the principle reiterated in Manganese Steel Forge Company v. Commonwealth, 421 Pa. 67, 218 A. 2d 307 (page 69) : “In Schuster v. Gilberton Coal Company, 412 Pa. 353, 194 A. 2d 346, the Court said (page 358) : ‘ “It has long been the rule in Pennsylvania that this Court will not decide moot questions. We will do so only in rare instances where exceptional circumstances exist or where questions of great public importance are involved: Conti v. Department of Labor and Industry, 405 Pa. 309, 175 A. 2d 56 (1961).” Ridley Park Shopping Center, Inc. v. Sun Ray Drug Co., 407 Pa. 230, 232, 180 A. 2d 1, 3 (1962).’”

¶16*517Over 100 of the challenged absentee ballots were challenged only for the form of the application. A reasonable construction of the applicable section, and we have frequently said that the Code should be liberally construed, indicates that such errors cannot be challenged after the Election Board has approved the application and mailed the ballots.* Thereafter the only facts that can be challenged are whether the elector was absent, or ill or disabled on election day, and his age, residence, citizenship and registration.

¶17For these reasons I would reverse the lower Court as to all the aforesaid challenged absentee ballots and direct that all absentee ballots should be opened and counted as well as all other unopened or uncounted ballots, and for this purpose remand the case to the lower Court.