I would not reverse the court below, but would affirm its decision, because it is my opinion that it committed no error in excluding the two disputed ballots.
At the municipal election of November 2, 1943, there was to be filled the office of Township Commissioner for the Third Ward of Shaler Township, Allegheny County, the nominees for which were Edward T. Bauman, Jr., Democrat, and Elmer J. Mertz, Republican. One hundred twenty-one votes were cast for each of these nominees, but the election board rejected two ballots (marked for identification Exhibits "1" and "2") for Mertz, among others. During the period that the returns were being tabulated by the return board, a soldier ballot was received and credited to Bauman, thus making his total vote 122. A petition was filed in the court of common pleas and the ballots in the box were recounted. The recount board also rejected the two ballots, and Bauman *Page 458 was declared elected. An election contest was then filed in the common pleas court by twenty-four citizens and qualified electors and, after hearing, this was dismissed. A final order dismissing exceptions was filed and this appeal followed.
I think a careful examination of the disputed ballots shows that both should be rejected, because the markings on each violate specific provisions of the Pennsylvania Election Code, Act of June 3, 1937, P. L. 1333. Article XII, § 1223 of that statute provides, inter alia: "(a) No ballot which is so marked as to be capable of identification shall be counted. . . . Any ballot marked by any other mark than an (X) in the spaces provided for that purpose shall be void and not counted: Provided, however, That no vote recorded thereon shall be declared void because a cross (X) mark thereon is irregular in form. Any erasure, mutilation or defective marking of the straight party column at November elections shall render the entire ballot void, unless the voter had properly indicated his choice for candidates in any office block, in which case the vote or votes for such candidates only shall be counted. Any erasure or mutilation in the vote in any office block shall render void the vote for any candidates in said block, but shall not invalidate the votes cast on the remainder of the ballot, if otherwise properly marked. . . ."
The ballot, Exhibit "1", contains the following incorrect markings: (a) a figure consisting of three intersecting lines in the straight party column; (b) the words "no good" written in the School Director block, opposite the name of Bernard F. Hahn; (c) the adding of check marks to the crosses placed in the spaces provided in the Constable block, opposite the name of Norman Byerley, and in the Judge of Election block, opposite the name of Jacob P. Burkhart, Jr.; and (d) the insertion of a small vertical line to the left of the cross-mark in the Township Commissioner block, opposite the name of Elmer Mertz. *Page 459
The validity of the other ballot, Exhibit "2", is attacked on the ground that opposite the names of the various candidates in eight separate blocks there were placed identical marks, which identified the ballot, each consisting of two intersecting diagonal lines with a horizontal line drawn across the diagonal ones at or about the point where they intersect.
The three-line figure in the straight party column on Exhibit "1" clearly is a defective marking, within the meaning of the Pennsylvania Election Code. Therefore, the insertion of this figure voids the ballot, at least so far as the vote for Township Commissioner is concerned, since the voter thereof did not properly indicate his choice for a candidate in the block for that office. In my judgment, the other marks on the ballots disqualify them, if for no other reason than that the markings thereon make them capable of identification.
I do not agree with the majority that the legislature intended that the provision of the Pennsylvania Election Code that "No ballot which is so marked as to be capable of identification shall be counted" must be construed "with great liberality". On the contrary, I think it was clearly intended that this provision of the statute should be reasonably interpreted, in order to protect the secrecy of the ballot, which was recognized to be of supreme importance.
It is my opinion that both ballots should also be excluded because they contain marks other than "an (X)". While the cross may be "irregular in form", and need not be made with any degree of mathematical precision, nevertheless in order to be a cross it must be formed by two intersecting lines. That is the only mark sanctioned by the Pennsylvania Election Code. The use of such a mark insures uniformity in ballot marking, and prevents identification of the ballot. By no stretch of the imagination is it possible to bring any of the markings objected to within the category of "an (X)". If the legislature had intended to invalidate merely the vote *Page 460 cast in the block in which the defective marking was made, rather than to void the entire ballot, it would have so provided, as was done in the case of an erasure, mutilation, etc.
McCaffreys' Appeals, 337 Pa. 552, 11 A.2d 893, is an analogous case. An examination of ballots under consideration in that case shows that the marks on three of them to which objections were raised are quite similar to the defective markings on the ballots in the instant case. It seems to me that we fell into error in that case when we failed to declare invalid ballots, Exhibits "D", "I" and "J", and that we are repeating that error when we do not here declare invalid ballots, Exhibits "1" and "2". I am convinced that the word "omit" thrice written on Exhibit "D", and the extremely large indelible smear or smudge in the party column of Exhibit "J", in McCaffreys' Appeals, supra, rendered those ballots void, because the writing and the smear or smudge made the ballots capable of identification, just as clearly as though the voter had initialed the ballots or signed his name thereon; and that the mark on Exhibit "I", composed of more than two cross-marks, made in the Member of Council block, opposite the name ofMichael J. McCaffrey, was not "an (X)", "irregular in form", but was either an attempted "mutilation" which rendered void only the vote for the candidates in that block; or was a mark other than "an (X)", which made void the ballot in its entirety. I am forced to conclude that we should overruleMcCaffreys' Appeals, supra, in order to do justice in the instant case, to maintain the intention of the legislature, as plainly expressed in the Election Code, and what is even more important, to protect the secrecy of the ballots of all citizens against identifying marks or irregular or defective markings, which invite fraudulent practices in all elections.
The Election Code sets standards which are the only safe guide to the intention of the voter. The legislature left no choice; compliance with these standards is mandatory. *Page 461 Whether the improper marking be made through lack of skill, infirmity, or inadvertence makes no difference. Since the voters, whose ballots are here under consideration, disregarded the mandate of the lawmakers and did not avail themselves of an opportunity of obtaining another ballot, as provided by Article XII, § 1214 (b) of the Code that "if an elector inadvertently spoils a ballot, he may obtain another upon returning the spoiled one", they automatically disenfranchised themselves. The learned court below could not have found otherwise and very properly excluded both ballots.
I would affirm the order appealed from and declare Bauman to be the person elected to the office of Township Commissioner for the Third Ward of Shaler Township.