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

DISSENTING OPINION BY

Judge SIMPSON.

I agree with the manner in which the thoughtful trial judge, the Honorable Joseph M. James, and the majority resolve the substantive problems for 74 absentee ballots created by Allegheny County’s persistent departure from the absentee voting provision of the Pennsylvania Election Code (Election Code).1 However, because no appeal was timely filed by a person aggrieved, I disagree that the matter was properly before the trial court.

The Election Code permits “any person aggrieved” by an election board order to appeal. Section 1407 of the Election Code, 25 P.S. § 3157. It is undisputed that the only entity to either file an appeal to or seek intervention with the trial court within the short statutory appeal period2 was the Democratic State Committee.

Aside from the obvious concern that a political party may not be a “person” within the meaning of the Election Code,3 our *462Supreme Court holds a political party does not enjoy standing to assert a reapportionment challenge because, lacking the right to vote, it is not aggrieved. Erfer v. Commonwealth, 568 Pa. 128, 794 A.2d 325 (2002); Albert v. 2001 Legislative Reapportionment Comm’n, 567 Pa. 670, 790 A.2d 989 (2002). Following this reasoning, a political party cannot be “aggrieved” by an election board decision because it does not have the right to vote.

Section 310 of the Election Code, 25 P.S. § 2650, does not compel a different result. Subsection (a) permits a “party or political body or body of citizens” to appoint watchers or attorneys to represent it at any session of the election board. 25 P.S. § 2650(a). Also, subsection (c) permits any “candidate, attorney or watcher” present at a recount or recanvass to raise objections to be decided by the election board, subject to appeal. 25 P.S. § 2650(c). Under these provisions, a “party or political body or body of citizens” must act through an identified individual. Age, citizenship, residence and registration, all qualifications for voting and therefore standing, of such person can be verified. Section 701 of the Election Code, 25 P.S. § 2811.

Here, however, no qualified elector, candidate, or appointed watcher or attorney brought the appeal. Thus, the statutory authority of a political party to appoint a watcher representative, while interesting, has no relevance to this case. The bare statutory authority cannot overcome the factual absence of timely appeal by a “person aggrieved” where no voting representative appealed.

If a political party itself enjoys standing to appeal based on the authority to appoint a representative to attend election board sessions, every “party or political body or body of citizens,” resident or otherwise,4 also enjoys standing. Because expanding the right to appeal to non-resident sponsors of candidates- could have far-reaching consequences, it is a policy decision best left for others.

For the forgoing reasons, I would vacate the order of the trial court with regard to the appeal brought by the Democratic State Committee, thus reinstating the election board’s order.

. Section 1306 of the Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 3146.6.

. Section 1407 of the Election Code, 25 P.S. § 3157, allows an appeal within two days after an election board decision is made "whether then reduced to writing or not....”

. While the Election Code specifically defines "party” to mean "a political party, as defined in section 801 of this act [25 P.S. § 2831],” 25 P.S. § 2602(n), it does not define “person.” *462Article VII of the Election Code, 25 P.S. §§ 2811 — 2814, consistently refers to residence of a "person” in discussing the qualifications of electors. Section 802 of the Election Code, 25 P.S. § 2832, refers to a person's enrollment as a member of a political party as a condition to voting in a primary or holding party office.

. Residence is a vital qualification of an elector. See Article VII of the Election Code, 25 P.S.§§ 2811 — 2814.