The Resolution of Election Disputes: Legal Principles that Control Election Challenges
670 A.2d 629
543 Pa. 216, 670 A.2d 629
(Cite as: 543 Pa. 216, 670 A.2d 629)
voters in the District Justice election. These voters, who
could identify their ballots because they had designated
themselves as write-in candidates for various offices, all
testified that marks for Laughlin on their ballots were not
made by them. Laughlin maintains that this testimony
should not have been allowed because Article VII, Section 4
of the Pennsylvania Constitution provides for "secrecy in
voting."
Judge Woodside's opinion in Thomas A. Crowley Election
Contest, 57 Dauphin Co.Rep. 120 (1945), is most often
cited in support of the contention that a voter may not waive
his right to the secrecy of his ballot. According to Judge
Woodside, the secrecy of the ballot
is sound public policy. It is to prevent intimidation and
bribery. When a person has a right to reveal how he voted
he can be intimidated into revealing it.... If in every close
*237 election in this Commonwealth voters could be subpoenaed into Court ... and asked how they voted, bribery
and intimidation would become a simple matter, even
though the witness after taking the stand would have the
legal right to refuse to answer the question.
The sanctity of the ballot must be preserved, and the
courts must throw no technicalities in the way of discovering false and fraudulent election returns, but neither can
we abandon the keystone of our democracy--the secrecy
of the ballot, on the pretense of discovering an error in the
return.
57 Dauphin Co.Rep. at 126-27; see also Orsatti, 143
Pa.Commw. at 17, 598 A.2d at 1344 (voter cannot be permitted to waive right to secrecy) (citation omitted); In re
General Election of Nov. 4, 1975, 71 D. & C.2d 83, 91-92
(1975) (voters should not be permitted to testify where no
fraud is present).
However, as the court below observed, Judge Woodside
also noted in Crowley that
[w]e 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 on his own circumstances and testify how he voted. There may be circumstances where it is proper.... But, ... 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
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to accept the oral testimony of the voter as to his vote....
Crowley, 57 Dauphin Co.Rep. at 127.
Here, in contrast to Crowley and General Election of Nov. 4,
1975, the evidence clearly establishes that at some point
after election night and before the first recount, fraud occurred with regard to at least some of the ballots. We agree
with the lower court that, under the unusual circumstances
of this case, the sanctity of the ballot is not best preserved
by secrecy, but instead by allowing those whose legitimate
votes were altered through no fault of their own to testify, if
they so choose, regarding how they originally voted. Therefore, we hold that, under these limited circumstances, where
a vote has been properly cast but subsequently altered
through no fault *238 of the voter, the voter should be allowed to voluntarily appear and testify regarding how he or
she originally voted.
[15] Laughlin also claims that the court below erred in
denying her motion to disqualify the Beaver County District
Attorney and her staff from participating in the election contest. Laughlin maintains that such disqualification was necessary because the District Attorney openly endorsed Zupsic for District Justice. The lower court, however, found no
authority for Laughlin's position and concluded that it had
no authority to **640 order the District Attorney to refrain
from any investigation. Petition II, slip op. at 10. Further, if
the testimony of the District Attorney's investigator was affected by any conflict, the lower court noted that this would
go to the weight of that testimony rather than its admissibility.
[16] As the lower court noted, we also find no authority for
the proposition that the District Attorney and her staff
should have been disqualified from investigating this case.
Rule 1.11 of the Rules of Professional Conduct, which
Laughlin cites, is clearly inapplicable because it prohibits
attorneys in the public sector from participating in matters
"in which [they] participated personally and substantially
while in private practice." The District Attorney's endorsement of Zupsic has nothing to do with what she may have
done in private practice. Further, we agree with the lower
court that any supposed conflict of interest would go to the
weight of testimony rather than its admissibility. See, e.g.,
Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 501, 556
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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