In re Canvass of Absentee Ballots of November 4, 2003 General Election

DISSENTING OPINION BY

Judge LEADBETTER.

I must respectfully dissent, at least in part. This court has long held that, “While it is true that a defect which is minor or technical in nature will not void an otherwise valid ballot, violations of substantive provisions of the Code cannot be overlooked on the pretext of pursuing a liberal construction.” In re April 10, 1984 Election of East Whiteland Township, Chester County, 85 Pa.Cmwlth. 594, 483 A.2d 1033, 1036 (1984). Nothing in the present case causes me to conclude that we should depart from this longstanding principle. I fully agree with the majority and the trial court that the right to vote is of great importance and that we should not lightly disenfranchise citizens who have followed a local Board’s announced procedure. However, there exists strong policy considerations on the other side of the coin which I believe must prevail under the circumstances presented here.

First, although the Board had adopted the procedure at issue, it must be noted that it was not only contrary to State law, but also contrary to the explicit written directions sent -with the absentee ballots. Thus, any reliance by the voters can hardly be deemed reasonable, let alone compelling. More fundamentally, however, by adopting its estoppel doctrine, the majority has given carte blanche to local election *461boards to establish whatever rules they choose, even where those rules violate explicit directives of the Election Code. So long as voters follow the Board’s local practice, the statutory mandates must be ignored, or at least unenforced, in the name of protecting the franchise. Aside from being in derogation of law and our constitutional allocation of power,1 as Judge Conti noted in the federal litigation, allowing a patchwork of different rules from county to county in a statewide election implicates equal protection concerns. Cf. Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000).2 Accordingly, I would reverse common pleas, in part, and disallow the fifty-six ballots known to have been hand-delivered by third parties.

I would not, however, disallow the eighteen ballots which were invalidated by the election Board because two improperly hand-delivered ballots were inadvertently co-mingled with sixteen others. First, the co-mingling was simply an error, not Board policy adopted in violation of the Code. Second, the vast majority of these ballots were undisputedly valid. In this circumstance, I would find the statutory violation to be de minimis and thus insufficient to disenfranchise the sixteen voters who followed lawful procedures. Thus I would affirm common pleas as to those eighteen ballots.

. Local bodies have only the authority granted them by the General Assembly, and even home rule municipalities may not act inconsistently with State laws of general application. See Devlin v. Philadelphia, 809 A.2d 980, 985 (Pa.Cmwlth.2002) [citing Genkinger v. New Castle, 368 Pa. 547, 549, 84 A.2d 303, 304 (1951)]. The Election Code empowers county boards of election "to make and issue such rules, regulations and instructions, not inconsistent with law, as they may deem necessary for the guidance of voting machine custodians, elections officers and electors.” Section 302 of the Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2642(f) (emphasis added).

. Union Electric Corporation v. Board of Property Assessment, Appeals & Review of Allegheny County, 560 Pa. 481, 746 A.2d 581 (2000), relied upon by the majority, does not command a different result. That case allowed a nunc pro tunc appeal because the tax assessment Board had erroneously extended a filing deadline. A breakdown in the administrative process is a classic ground for allowing nunc pro tunc appeals. Administrative error is not, however, a basis for changing substantive law to conform to the bureaucratic misconception.