(dissenting).
Today a majority of this Court reverses the certification by the trial court of Norman E. Frederick as Tax Collector of Jackson Township, Pennsylvania. In doing so the majority ignores the clear intention of the voters of Jackson Township and unseats an elected official who has been serving as Tax Collector for over one year. I respectfully dissent.
The controversy centers upon eight write-in votes for Mr. Frederick which the majority concluded should not be counted in view of section 1216(e) of the Election Code, Act of June 3, 1937, P.L. 1333, art. XII, § 1216(e), 25 P.S. § 3056(e) (1963).
The majority analysis, however, ignores basic concepts which this Court has followed in construing election laws. In Melody Appeals, 449 Pa. 386, 296 A.2d 782 *548(1972), we quoted from Weiskerger Appeal, 447 Pa. 418, 420, 290 A.2d 108 (1972) as follows:
“ ‘As stated in the Reading Election Recount Case, 410 Pa. 62, 188 A.2d 254 (1963): “the power to throw out a ballot for minor irregularities should be sparingly used. It should be done only for very compelling reasons. . . . ‘Marking a ballot in voting is a matter not of precision engineering but of an unmistakable registration of the voter’s will in substantial conformity to statutory requirement.’ ” In construing election laws while we must strictly enforce all provisions to prevent fraud our overriding concern at all times must be to be flexible in order to favor the right to vote. Our goal must be to enfranchise and not to disenfranchise [citing a case].’ ” 449 Pa. at 391, 296 A.2d at 784.
In In Re: Recount of Ballots, 457 Pa. 279, 325 A.2d 303 (1974), we said:
“At the outset it is important to be reminded that the right of suffrage is the most treasured prerogative of citizenship in this nation and this Commonwealth. It is this right that made the American dream distinctive, where men were to be governed not by the state but by themselves. Unreasonable impairment or unnecessary restrictions upon this right cannot be tolerated whether the contest be for the selection of the President of the United States or the district committeeman.” Id. at 287, 325 A.2d at 308.
The majority, ostensibly to insure added protection against double voting and an efficient machine voting operation, disregards the manifest intent of eight voters in an election where the margin of difference was only two votes.
If the excerpts quoted above mean anything, they at least stand for the proposition that voter intent should override the “efficiency” of machine voting. Moreover, double voting is amply prevented by the locking mecha*549nism of the machine whereby once the lever is depressed the write-in slide will not operate. Should the person first use the write-in slide, then the lever will not operate. Thus, there is no reason to cancel these votes, especially where there is no evidence of fraud, nor any evidence that write-in votes plus lever votes amounted to a greater number of votes than there were voters.
The mechanism of the machine operates so that a person who opens the slide and then wishes to vote for a listed candidate can do so only by writing in that name. To disenfranchise that voter merely for changing his mind is clearly contrary to the admonition in Melody Appeals, supra, that “our overriding concern at all times must be to be flexible in order to favor the right to vote.” I can find no distinction between the instant situation and clear erasures which we permitted in In Re: Recount of Ballots, supra, in the face of a contrary statutory provision, Act of June 3, 1937, P.L. 1333, art. XII, § 1223, as amended, Act of August 13, 1963, P.L. 707, § 19, 25 P.S. § 3063.
Most importantly, where it is clear that the voter was not expressly instructed that his write-in vote for a listed candidate would not be counted and the voter would not otherwise reasonably question the integrity of his vote, invalidation should not occur. In In Re: Recount of Ballots, supra, we said at 287-88, 325 A.2d at 308:
“There was no direction on the face of the ballot instructing the voter of the need to remove that particular portion before casting the ballot nor is there any evidence on this record that would support a finding that voters who cast the ballots in question were, in fact, advised of this requirement by the appropriate election official .
[Wjhile it is most appropriate for the state to legislate to achieve these ends those regulatory measures must not ever be permitted to unduly infringe upon the exercise of the right to vote. Clearly, . . . where the voter has *550complied with all instructions communicated to him and in the absence of any evidence of improper influence having been exerted, invalidation would necessarily amount to an unreasonable encroachment upon the franchise and the legislative enactment should not be interpreted to require such a result.”
We continued:
“To deny the vote under these circumstances particularly where the inadequacies of the instructions appearing on the face of the ballot coincide with the reasons for the challenged votes would be without justification”. Id. at 294, 325 A.2d at 312. (Footnote omitted).
In this case, not only was there a lack of proper instructions, but because this was the first time voting machines were used in this district, a state of confusion among the voters on election day was amply shown on the record during the questioning of a judge of elections:
“Q. I see. Will you tell us some of your experiences on this day in regard to the use of the machines and the explanations given ?
A. Well, it was mass confusion, I guess you would call it. It was the first time the machines had ever been used, and they combined two districts, Jackson east and Jackson west after the primaries were held, and they said when they were, combined them they would give us three machines, and on election day we had two machines, and so many people came to vote, no one had used the machines, and they didn’t understand them and we were to explain how to use them before everyone went into the machine, and that took an awful lot of time, and there was so many voters that didn’t come. Well, between five and, or even say between six and eight we had more voters in those two hours than we had the whole day, and there were so many people lined up at eight o’clock, then, we closed the doors. It took us to nine ¡thirty before we got the *551last person voted. That’s how many were waiting to vote, and a lot of them got disgusted and some people complained they had waited two hours to vote.
Q. Mrs. Brandon, did you have questions during the day as to how to make write-in votes ?
A. No. We tried to explain to them before then went in to vote, but on the sample little machine they give us to demonstrate, the keys for the printed ballots was there but it didn’t have a, those, like those little slots for the write-ins and we told them they were above the keys and to slide the slot up, you know, to write in.” In my judgment the proper rule to be followed where
there is no finding of fraud or improper influence is that the voter will not be disenfranchised unless his vote is unclear, or he knew, or should have known, or was expressly told that the method of voting which he employed would invalidate his vote.
I would affirm the order of the court below.