In re Contested Election

In re Contested Election

Opinion

 [*133]   [**200]  OPINION BY MR. JUSTICE SADLER:

At the November election of 1923, the citizens of the Fifth Ward of Lancaster City balloted for a select councilman. The returns from the local board showed Lewis, the Democratic and coalition candidate, to be credited with a total of 869 votes, while his Republican opponent was noted as having received 861. Later, under the provisions of the Act of May 22, 1923, P.L. 309, the proper officer made known the result of the count of the "absent voters," which added three to the total of the first named, and twenty for the latter, thus apparently causing the election of Bare. To contest this decision, a petition was presented to the court of quarter sessions, in which the validity of the legislation referred to was attacked,  [***3]  its unconstitutionality being urged on many grounds, and it was asked that the additional ballots cast by mail be rejected in making the final computation. This contention was sustained below, and a certificate of election directed to be issued to Lewis. From the decision rendered, this appeal was taken.

] An act of assembly being assailed here as violative of the fundamental law of the State, it is necessary that it be examined in light of the controlling constitutional provisions, for presumptively it is valid. The statute in question provides an elaborate system for the issuing, marking and recording of the ballot of a qualified voter "who by reason of his duties, business or occupation [may be] unavoidably absent from his lawfully designated election district, and outside of the county of which he is an elector, but within the confines of the United States," on the day of holding any election. More than thirty of the states of the Union now have absentee voting laws of similar character, -- usually limited in the grant of privilege to those in military service, -- and, in most cases, authorized by special constitutional provision:  [*134]  14 A.L.R. 1256. Whether such [***4]  legislation can be sustained in Pennsylvania depends upon the wording of our Constitution, in the interpretation of which we are aided by consideration of what has been decided previous to its adoption.

In 1790, amended in 1838, it was provided by the organic law that "in elections by the citizens every white freeman of the age of twenty-one years, having resided in the State one year, and in the election district, where he offers to vote, ten days immediately preceding such election, and within two years paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the right of an elector." Later, in 1839, the legislature enacted a general law regulating the conduct of elections (July 2, 1839, P.L. 519), and, by sections 43 to 50, directed that soldiers in actual service could have their votes recorded in the manner therein prescribed. The question of the right to exercise this special privilege was brought before this court in a contest from Luzerne County in 1861, and the adverse determination then made is controlling now, unless there has been some change in the fundamental law which makes necessary a different conclusion.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.