In re General Election for District Justice
670 A.2d 629
543 Pa. 216, 670 A.2d 629
(Cite as: 543 Pa. 216, 670 A.2d 629)
[9] However, we agree with Laughlin's third contention that
the court of common pleas' failure to make specific findings
regarding the degree of tampering makes it impossible for
this Court to review whether setting aside the election was
the appropriate remedy in this case. For the same reasons,
we also find it impossible to evaluate Zupsic's claim that the
court should have awarded the election to him based on the
first machine count, as audited, together with the write-in
votes.
[10][11] To achieve the goal of enfranchisement wherever
possible, this Court has consistently recognized that "the
power to throw out a ballot for minor irregularities should
be sparingly used." In re Petitions to Open Ballot Boxes,
410 Pa. 62, 65, 188 A.2d 254, 256 (1963). Even the mere
casting of fraudulent votes is not sufficient to throw out a
return. See In re West Mahanoy Township's Contested Election, 258 Pa. 176, 179, 101 A. 946, 946 (1917). Instead, if it
is at all possible, the fraudulent votes should be purged and
the remaining votes retained. See id.; see also In re Bright's
Contested Election, 292 Pa. 389, 393, 141 A. 254, 255
(1928).
*235 It is only when an election has been characterized by
such fraud or intimidation or other unlawful conduct as to
make the election a mere travesty or when the ballots or
voting machines ... are in such condition that it is impossible to ascertain from an inspection of them the will
of the voters that a court will reject the entire returns from
a district and annul the election.
Winograd v. Coombs, 342 Pa. 268, 271-72, 20 A.2d 315,
316 (1941).
In the present case, the court of common pleas set aside the
election because it was "impossible to accurately strike all
the altered ballots so the result of the election can be
reached by ascertaining the honest intent of the voters
without disenfranchising the voters who cast ballots which
were altered." Petition I, Finding of Fact No. 12. Therefore,
the court claimed that it could not determine that the alterations definitely changed the election's outcome; instead, at
best, it could only conclude that the alteration "probably" affected the outcome. Petition II, slip op. at 10.
However, the mere possibility that the alteration of ballots
affected the outcome of the election is clearly insufficient to
Page 10
set aside an election and disenfranchise the vast majority of
voters whose ballots remained unaffected by the tampering.
Instead, this Court's previous rulings required the lower
court to specify which ballots it concluded had been altered
and to explain the reasons for its conclusions. Likewise, the
lower court should have identified the ballots that it was unable to classify as either altered or unaltered, and again to
explain the reasons for its conclusions. Without such findings, it is impossible for this Court to make a review of the
ballots to determine whether the election should have been
awarded to one of the candidates rather than set it aside in
its entirety.
[12][13] We understand the lower court's concern that, if it
were to purge all of the altered ballots, the result would be
to disenfranchise voters whose ballots were tainted through
no fault of their own. The court errs, though, in concluding
that the appropriate and only course would be to disregard
the *236 altered ballots. Where evidence establishes that
ballots were altered between the time of initial tabulation
and a recount, discarding the votes is "wholly untenable."
See In re Opening of Ballot Box, 344 Pa. 350, 355, 25 A.2d
330, 333 (1942). Instead, where
a discrepancy result[s] from fraudulent tampering with the
ballot boxes and their contents, since the official canvass
of the votes, ... the court [is] fully justified in directing
that the fraudulently altered ballots be counted for ... the
candidate for whom the evidence shows they must necessarily have been counted by the election **639 officials,
and it would ... [commit] grievous error [to do] otherwise.
Id. Therefore, far from striking the altered ballots, the court
of common pleas has the duty to enfranchise legitimate
voters by awarding those ballots to the intended recipient if
that recipient can be determined by clear and convincing
evidence. [FN9]
FN9. For these reasons, we also reject Zupsic's
second contention that the court of common pleas
should have rejected all of the votes in the five
tainted districts and awarded him the election based
on the results in the remaining districts.
[14] Finally, we turn to Laughlin's remaining claims of error. First, and most significantly, she claims that the lower
court erred in admitting the voluntary testimony of five
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
251
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