Neshaminy School District Election Contest

Satterthwaite, P. J., Specially Presiding, This is an election contest of class Y (section 1711 of the Election Code of June 3, 1937, P. L. 1333, 25 PS §3291), challenging the return by the board of elections that C. William VanTilburg had been elected school director for Neshaminy School District, region no. 3, at the municipal election held on November 7, 1967. The problem at issue is the significance and effect to be attributed to erroneously printed absentee ballots provided for voters regis — 106 — tered as electors in three of the nine election districts comprising such region no. 3 of the school district. The proceedings were regularly instituted and carried on under section 1751, et seq., of the Election Code, 25 PS §3431, et seq. The matter came on for hearing in due course before Judge Monroe. Briefs of argument were subsequently furnished, but, in view of the public importance and interest in the questions involved, Judge Monroe informally communicated to counsel his desire that the proceedings be duly considered by other members of the court as well as himself. Accordingly, in order to avoid delay and in recognition of the circumstance that President Judge Biester and Judges Beekert and Power had disqualified themselves, counsel filed a stipulation in writing agreeing that the matter might be considered and decided by a court en bane comprised of such others of the judges of this court, including President Judge Satterthwaite, of the Orphans’ Court, specially presiding, as might be assigned for the purpose, on the stenographic record of the hearing before Judge Monroe and the briefs filed, without necessity for further hearing or argument before such other judges. Accordingly, the matter has been duly considered and is now decided on such record and argument briefs by a majority of a court en banc consisting of Judge Monroe (the hearing judge), President Judge Satterthwaite, and Judges Bodley and Garb. The facts involved are relatively simple and not in dispute. As mandated by section 1773 of the Election Code, 25 PS §3473, such facts are separately and formally stated, as follows: Findings of Fact 1. At the municipal election held on November 7, 1967, one of the offices to be balloted for was that of school director, four-year term, to represent region no. 3 of the Neshaminy School District, in this county, — 107 — said region no. 3 being composed of nine voting districts or precincts, to wit, Middletown Township Upper Election District No. 1, Middletown Township Lower Election Districts Nos. 1, 2, 7 and 11, Langhorne Borough Election District, Langhome Manor Borough Election District, Penndel Borough Election District and Hulmevi'lle Borough Election District. 2. At said election, the duly nominated candidates for the office of school director, four-year term, in said region no. 3 were C. William VanTilburg, Republican Party, and Larry A. Brossman, Democratic Party. 3. Except only as stated in findings nos. 4 and 5, infra, the names of VanTilburg and Brossman, as such candidates, properly and accurately were printed on all voting machine labels and on all absentee ballots in all nine voting precincts constituting said region no. 3. 4. The erroneous printing and preparation of ballots by the board of elections, constituting the occasion for and subject matter of the within proceedings, related only to the absentee ballots prepared for and distributed to absentee voters of only three of the nine election precincts constituting said region no. 3, to wit, Middletown Township Upper Election District No. 1, Middletown Township Lower Election District No. 7, and Middletown Township Lower Election District No. 11. 5. In preparing the absentee ballots for the three election precincts mentioned in finding no. 4, supra, the names of K. Ward Vinson, Republican Party, and Adolf Putterweit, Democratic Party, were erroneously printed as the candidates for school director, four-year term, instead of VanTilburg and Brossman, respectively, and said errors were not detected by, or brought to the attention of, the board of elections until after the date of said election on November 7, 1967. — 108 — 6. Vinson and Futterweit, in fact, were the respective nominees for election as school director, four-year term, in region no. 2 of Neshaminy School District; neither was a resident of region no. 3, nor was either a candidate or eligible to be a candidate for school director in region no. 3. 7. The unquestioned and unchallenged tally of the votes cast at said election for school director, four-year term, region no. 3 of Neshaminy School District, except for the absentee ballots for the three voting precincts mentioned in finding no. 4, supra, including those cast on the voting machines in all nine precincts and those by absentee ballots for the other six precincts, was as follows: for VariTilburg 2,170; for Brossman 2,152; resulting in a majority of 18 for VanTilburg. 8. Twenty-six of the erroneously printed absentee ballots were duly returned to the board of elections for tally from electors of the three voting precincts specified in finding no. 4, supra. They were marked, so far as presently pertinent, as follows: (a) Fourteen thereof, by an X in the square after the Democratic Party name in the party column, with no separate or other marking of choice of any individual candidate for any office on the ballot, whether school director or otherwise, except that some thereof did register separate votes on a constitutional amendment question. (b) One thereof, by an X indicating a similar straight Republican vote, with no individual candidates marked. (c) Three thereof, by an X in the Democratic Party column, and also by X’s after the name of each and every Democratic Party candidate as printed on the ballot, including the name of Futterweit for school director. — 109 — (d) Eight thereof, by X’s after the names of various individual candidates as printed on the ballot, including seven after the name of Futterweit and one after the name of Vinson, respectively, for school director, but with no marking in either Republican or Democratic party column; two ballots in this category were marked by X’s after the name of each and every Democratic Party candidate as printed thereon. (e) On none of the 26 ballots in question was the name of either VanTilburg or Brossman, or of any other candidate, written in by any elector. 9. The board of elections tallied the absentee ballots mentioned in finding no. 8, supra, as two votes for Vinson and 24 votes for Futterweit, leaving unchanged the tabulation for VanTilburg and Brossman as stated in finding no. 7, supra, and resulting in the certification of VanTilburg as the duly elected school director, four-year term, in Neshaminy School District, region no. 3. 10. The absentee ballots for the three election precincts in question were so defectively printed, by reason of the misstatement of the names of the candidates respectively nominated for school director, four-year term, for election in said region no. 3, as to be calculated to mislead the absentee voters of said election precincts in regard to the candidates actually nominated for said office. 11. Such defective condition of the absentee ballots in the three voting precincts in question may have affected the result of the entire election for school director, four-year term, for Neshaminy School District, region no. 3, as conducted in all nine election precincts constituting such region no. 3, notwithstanding that such defective condition did not obtain with respect to the absentee ballots in the six other election precincts thereof or with respect to the voting machine labels in any of the election precincts thereof. — 110 — Discussion Petitioners-contestants assert alternative grounds for their attack upon VanTilburg’s certification as the elected school director, four-year term, Neshaminy School District, region no. 3, contending either (1) that the 24 votes ostensibly cast for Futterweit on the erroneously printed absentee ballots of electors in the three subject voting precincts should be counted for Brossman, thus overcoming VanTilburg’s certified majority of 18, plus, applying the same argument on the other side, the two votes cast on such absentee ballots for Vinson, and, hence, resulting in Brossman’s election; or, if this contention be unavailing, (2) that the school director election should be set aside and a vacancy in said office should be declared under section 1772 of the Election Code, 25 PS §3472. All of the judges comprising the court en banc believe that the first position is lacking in merit, but a majority of the participating judges concur in the conclusion that the second must be sustained. On the first of these arguments, it may well be contended with some persuasiveness that the 14 straight Democratic ballots with no individual candidates separately voted for, as well as the one straight Republican ballot in the same category, should be regarded as votes for Brossman and VanTilburg, respectively, since a vote in the party column only, with no vote for individual candidates, constitutes a vote “for every candidate of a party or political body so marked” (sections 1215(c) and 1223(b) of the Election Code, as amended, 25 PS §3055, 3063), and Brossman and VanTilburg, in fact, were such candidates even though not so named on the ballots in question. We need not decide this proposition, however, nor the further question of whether the same rationale would apply to the additional three ballots where, in addition to marking the Democratic Party — 111 — column, the voters also marked the name of each and every individual Democratic candidate printed on the ballot. Even if Brossman be entitled to 17 additional votes on this basis, he still would not overcome VanTilburg’s certified majority of 18 plus the one more which the latter would pick up on the same argument, unless Brossman also be given at least three of the seven “split-ticket” or individual votes marked for Futterweit with no party-column vote indicated. We fail to understand how Brossman may legally claim any of these seven “split-ticket” or individually marked ballots in any view of the case. In these instances, and notwithstanding that under contestants’ own evidence, much publicity had been given to Brossman’s candidacy for school director in region no. 3, seven electors took the trouble, not to vote a straight party ticket in the manner directed by the Election Code and printed on the ballot, but rather to select and choose among the individual candidates, by name. In effectuating this discriminating process, they deliberately voted for Futterweit, rather than writing in Brossman’s name. While various possibilities may be conjectured as to what motivated them to mark their ballots in this fashion, speculation and guesswork may not legally provide the basis for resolving problems arising out of a questionable manner of exercising the voting privilege. Compare Democratic County Committee Appeal, 415 Pa. 327, 339 (1964). Section 1215 (c) of the Election Code, as amended, 25 PS §3055, provides, in relevant part: “(c) At elections, the elector shall prepare his ballot in the following manner: He may vote for the candidates of his choice for each office to be filled according to the number of persons to be voted for by him for each office, by making a cross (X) or check (V) mark in the square opposite the name of the candidate, or he may insert by writing, stamping or sticker, in — 112 — the blank spaces provided therefor, any name not already printed on the ballot, and such insertion shall count as a vote without the making of a cross (X) or check (V) mark. . . .” (Italics supplied.) This provision, subject to the additional provisions of the same section relative to voting a straight party ticket and the presently immaterial exceptions from such straight party ballot, must be regarded as the exclusive manner of voting for a particular nominee, whether or not he be named on the ballot as printed. As noted in Little Beaver Township School Directors’ Election, 165 Pa. 233, 237 (1895) : “In so far as the mode of voting is thus specifically prescribed by the act, all other modes are, by necessary implication, forbidden. Expressio unius, est ex-clusio alterius. The ordinary rule, as has been stated by recognized authority, is that where power has been given to do a thing in a particular way, then affirmative words, marking out the way, by necessary implication prohibit all other ways”. See also In re Contested Election of Frank T. Redman, 173 Pa. 59, 63 (1896); Rodgers’ Contested Election, 234 Pa. 512 (1912); and compare Democratic County Committee Appeal, supra, 415 Pa. at 334. Accordingly, since Brossman’s name was neither printed nor written in on the seven ballots in question, and no party column vote was marked, no legal vote for him could have been accomplished under these exclusive statutory directions. Nor is the situation altered by the circumstance that contestants proposed to show that certain of the electors who claimed to have cast some of the absentee ballots in question really intended to vote for Brossman. This offer was in the form of ex parte affidavits purportedly executed by 23 persons whose names appeared on exhibit P-6, the list of electors voting absentee ballots who were — 113 — registered in the three election precincts in question. Objection to these affidavits, a ruling on which was reserved by the hearing judge, is hereby sustained, and said documents are hereby disregarded. Apart from their inherently ex parte and hearsay nature with no opportunity to cross examine the affiant (and the fact that they are apparently statements under oath does not obviate this objection: Pore v. Pore, 189 Pa. Superior Ct. 615, 620 (1959)), such evidence should not be admissible in an election contest as a matter of policy in any event. Judge Woodside, in In re Thomas A. Crowley—Election Contest, 57 Dauph. 120 (1945), after an exhaustive citation and discussion of the precedents, concluded on this subject, at page 127: “We are not prepared to state nor called upon to say that there are no circumstances under which a legal voter will be permitted to take the witness stand of his own volition and testify how he voted. There may be circumstances where it is proper, as for example if the ballots were lost or destroyed. But we are satisfied that, where it is possible to determine from the ballots what the vote of the district was, and there is no proof of fraud, we have no authority to accept the oral testimony of the voter as to his vote, rather than to accept the ballots as they are found in the ballot box. “If instead of returning the votes as shown on the ballots we should make return of votes according to the oral testimony of the voters we would be making a mockery of secrecy of the ballot, and at the same time we would be violating one of the most firmly established principles of our law, to wit: thát it is not the intent of the voter that governs, but only such intent as is expressed in the manner prescribed by statute. Counting of Votes, Middle Paxton Township, 43 Dauphin 180, 183 (and cases there cited) affirmed in 325 Pa. 48”. — 114 — Compare In re Appeal of Bert Transue from Returns of County Board of Electors, 35 Northamp. 329, 333 (1959), wherein the court noted that such testimony not only would violate the spirit of secrecy of the ballot, but would also actively invite bribery and fraud. The very purpose of the mandates of the Election Code as to the form of ballots and manner of their use is to avoid such extraneous inquiries and the adverse consequences likely to result therefrom, so that the cast ballot “should be per se self-explanatory”: Redman’s Election, supra, 173 Pa. at 64-5. The intent of the voter must appear from what he did and not by his evidence of what he intended to do: Contested Election of Corry School Director, 18 Dist. R. 4, 5, 35 Pa. C. C. 152, 153 (1908). Turning to contestants’ second argument, a majority of the court regretfully comes to the conclusion that the case is within section 1772 of the Election Code, 25 PS §3472, and that, therefore, no alternative is presented but to declare the within-contested election for school director to be invalid so that a vacancy in office results, to be filled by appointment as in the case of other vacancies. We reach this determination with regret because it means that, in effect, over 4,300 voters will have been thwarted in their right of franchise as to this office solely because of the erroneous printing of the 26 absentee ballots in the three voting precincts in question. But we see no choice in the matter in view of the closeness of the election and the mandatory requirements of section 1772. The latter provides, in relevant part, as follows: “Whenever in any contested . . . election, the tribunal trying the case shall decide that the ballots . . . used in one or more election districts, by reason of the . . . misstatement of one or more . . . names of candidates . . . were so defective as to the office in contest as to be calculated to mislead the voters in — 115 — regard to any of the candidates nominated . . . for said office, and that the defective condition of the said ballots . . . may have affected the result of the entire . . . election for said office, the said tribunal shall declare the . . . election to be invalid as regards the said office, and in the case of elections shall report their decision, in cases where vacancies in such offices are filled by appointment, to the proper officer or officers who are by law authorized to fill vacancies occurring in such office, who, upon receipt of such notice, shall, without delay, proceed to appoint a suitable person or persons to fill the vacancies thus created, and the person or persons so appointed shall continue in office until the next election succeeding his appointment at which such office is by law required to be filled . . .” It seems clear to a majority of us that the various ramifications of the erroneous preparation of the absentee ballots in the present case demonstrate that they were so defective as to be calculated to mislead the crucially significant number of those using them, under the precedents construing and applying this statutory language or that of its practically identical predecessors, the Act of June 10, 1893, P. L. 419, sec. 29, as amended by the Act of April 14, 1897, P. L. 23, now repealed. Erroneous, confusing or ambiguous printing of the names of candidates on the ballot provided the occasion for invoking such statutory provisions and setting aside elections in Foy’s Election, 228 Pa. 14 (1910); Contested Election of Corry School Director, 18 Dist. R. 4, 35 Pa. C. C. 152 (1908); Snodgrass’s Contested Election, 29 Dist. R. 562, 49 Pa. C. C. 39 (1920), affirmed, 267 Pa. 494 (1920); In re Election of Straban Township School Directors, 30 D. & C. 651 (1937); Harmony School District v. Butler Commissioners, 3 Butler 42 (1963). — 116 — Similarly, where the format of the ballot was prepared in a misleading or uncertain fashion, as by failure to separate and particularize, or otherwise provide for, the respective candidates nominated or to be named where there had been no nominations for different classes or terms of the same office when more than one class was to be elected, such deficiency was found to require the admittedly drastic and reluctantly applied remedy provided by this legislative direction in Elizabethville Borough Election, 5 Dist. R. 227 (1896); Upper Mahanoy Township Election, 16 Dist. R. 568 (1907); Gallagher’s Contested Election, 23 Dist. R. 864 (1912); Danville Election Contest, 29 Dist. R. 946, 48 Pa. C. C. 445 (1920). Lanzi’s Election, 94 Pitts. L. J. 286, 4 Lawrence 270 (1945), is a case almost precisely on point factually with the instant case. It involved the election of a borough councilman from the second ward of Ell-wood City. That ward was divided into two voting precincts, the first being in Lawrence County and the second in Beaver County. The ballots used in the former were correctly printed with the names of the duly nominated candidates for the councilmanic office; those in the latter, however, like the absentee ballots for the three subject precincts in the present case, were printed with the names of the respective candidates for councilman from another ward of the same borough, who neither were, nor were eligible to be, candidates in the second ward. Lanzi, the duly nominated Democratic candidate, carried the first precinct by a vote of 185 to 148 for his opponent, but was returned by the election officials as having lost the second precinct, and, hence, the election, by reason of only seven votes written in for him therein as against 97 recorded for his duly nominated opponent, who, discovering the mistake early on Election Day, had had stickers printed and circulated, a strata gem — 117 — which Lanzi did not adopt. A total of 195 ballots were cast in the second precinct; however, the opinion does not disclose, and made no point whatsoever of, the straight party vote or the individual ballots marked for the candidates whose erroneously printed names appeared thereon. Judge Braham, for the Lawrence County court, held that section 1772 of the Election Code was applicable, the ballots for the second precinct being so defectively prepared by reason of the omission of the names of the duly nominated candidates and the erroneous substitution of other names therefor “as to be calculated to mislead the voters” with respect to this office, and such defective condition quite apparently being such as “may have affected the result” of the entire election. The same conclusions are compelled in the instant proceedings. It is clear that the subject absentee ballots presented at least a substantial possibility of misunderstanding, if not of outright deception, as to the identity of the duly nominated candidates in region no. 3 for the four-year term as school director in the Neshaminy School District. Moreover, this possibility was rendered even more likely under the particular circumstances here disclosed because the names of the candidates for school director, four-year term, as actually printed on the subject absentee ballots, although erroneous for this region, in fact were really in nomination for that same office, for that same term and for the same Neshaminy School District, although for another region. It is equally clear, from the closeness of the result of the undisputed votes cast, that the susceptibility to mistake presented by the 26 erroneously printed ballots in question may have affected the outcome of the entire election in contest. Because of this circumstance, a majority of the court believes that it is entirely beside the point and of no legal sig — 118 — nificance that the error occurred in connection with only a very small fraction of the ballots in comparison with the total number of ballots and ballot labels involved in the nine voting precincts comprising region no. 3 of the school district. Final Order And now, April 5, 1968, for the reasons stated in the foregoing opinion, it is hereby finally ordered, decreed and declared that the election held on November 7, 1967, for the office of school director, four-year term, for Neshaminy School District, region no. 3, was invalid and of no effect as regards said office, and that notice of this decision, consisting of a copy of this final order and accompanying opinions, which decision hereby declares a vacancy in the office of school director as of this date, shall be forthwith reported to the school directors of Neshaminy School District, who, upon receipt of such notice, without delay, shall proceed to appoint a suitable person to fill the vacancy thus created, as provided by law. The costs of the within proceeding shall be paid by the County of Bucks. President Judge Biester and Judges Beckert and Power did not participate in the consideration or decision of this case.