On May 15, 1979, primary elections were held throughout the Commonwealth of Pennsylvania. Included in the primaries being held in the City of Philadelphia was the Democratic nomination for the office of Mayor. The two principal candidates seeking this nomination were Charles W. Bowser, Esq. and William J. Green, Esq. At 7 p.m. on May 15, this court sat as the Election Court, and until approximately 8:45 p.m. it appeared that it would be a very uneventful evening; however, at 8:45 p.m., in rapid succession, reports began to come in which alleged that voting machines were failing to register votes for both candidate Green and candidate Bowser. Subsequently Gregory Harvey, Esq., candidate Green's representative, informed and demonstrated to the court that an improper printing of the tally sheet for the Jamestown voting machines had created the problem. The court quickly convened a hearing; in attendance were representatives from the District Attorney's Office, the City Solicitor's Office, representatives of candidates Bowser and Green, Fred Voigt, Esq. of the Committee of Seventy and representatives from both the Republican and Democratic City Committees. In addition, this court invited the news media including television cameras to record and publicize the proceedings in order to advise the public what steps were being taken to preserve the integrity of the primary. At this hearing the court issued the following orders:
(1) That all Jamestown machines be impounded; (2) that all Jamestown machines be immediately picked up from their polling locations and delivered to the warehouses located at 4700 Wissahickon Avenue and 5400 North Sixth Street; (3) that the keys to all of the Jamestown machines
In addition, the court advised all parties that the candidates and their representatives could be present during the actual canvass of the Jamestown machines. On the following day, May 16, the court met at the 4700 Wissahickon Avenue warehouse with several of the candidates and their representatives. Only one machine was canvassed on May 16. On this same date, it was agreed that a civilian monitoring group of candidate Bowser's representative's choosing would be permitted to remain in the warehouses overnight along with the police guard in order to insure that there would be no overnight tampering with the voting machines. This monitoring group was permitted to continue its activities throughout the canvass of the Jamestown machines and later during the inspection of the Shoup machines. On May 17, it became apparent to all concerned that if the approximately 950 Jamestown machines were to be canvassed quickly and accurately additional help would be needed. John Street, Esq., candidate for councilman of the Fifth Councilmanic District, suggested that the judges of the Court of Common Pleas be used to canvass the machines. After consultation with President Judge Edward J. Bradley, this court was informed that this was not possible. It was then suggested by a representative from candidate Green's staff that an accounting firm be retained to canvass the Jamestown machines. This suggestion was acceptable to all parties who later submitted a list of accounting firms to this court. From this list
Pursuant to a petition filed May 22, 1979, by Sylvia Meek, Esq. on behalf of candidate Charles W. Bowser, Esq., et al. to waive fee and to impound, open and recount all the Shoup machines, and a like petition filed by William T. Coleman, III, Esq. on behalf of David W. Marston, Esq. on May 23, 1979, the court, in cooperation with the Acting County Board of Elections, the Honorable Marvin R. Halbert, the Honorable Lawrence Prattis and the Honorable Paul Silverstein, scheduled a conference on May 24, 1979, with all the interested parties and proposed an inspection of the Shoup machines under the court and Acting County Board of Elections supervision; all parties agreed. The inspection of these machines was carried out by teams of inspectors which were composed of one representative of each opposing candidate and an employe of the County Board of Elections. These inspection teams were permitted to inspect the machines and to record the vote for their respective candidate and the opposing candidate. It should be noted that the inspection of the Shoup machines
On June 4, 1979, 20 days after the primary contest held on May 15, 1979, a petition for election contest was filed with the Prothonotary of the Court of Common Pleas of Philadelphia on behalf of five petitioners represented by Sylvia Meek, Esq., who also represented mayoralty candidate, Charles W. Bowser. The petition sought to have the Democratic mayoralty race between William J. Green, Esq., and Charles W. Bowser, Esq. "set aside" and a special election held.
Notwithstanding the fact that the petition stated that it was filed pursuant to 25 P.S. §§3431 and 3456 of the Pennsylvania Election Code of June 3, 1937, P.L. 1333, the petition failed to contain 20 signatures of 20 electors as required by section 3431 but in fact was signed by only five petitioners.
On the afternoon of June 4, 1979, which was the last day for filing said petition, counsel for petitioners, having filed the defective petition with the prothonotary's office, presented a copy of the petition to the court. The court upon its examination of the petition recognized that the petition failed to comply with section 3431 of the Pennsylvania Election Code.
On June 6, 1979, at the request of counsel for petitioners, a conference was held in the court's
On June 8, 1979, the court, over the objections of
Question I: Can A Petition For Election Contest Be Amended To Comply With The Jurisdictional Requirements As Set Forth In Section 3431 Of The Pennsylvania Election Code After The Expiration Of The Twentieth Day As Set Forth In Section 3456 Of The Pennsylvania Election Code?
"Class I. Nominations and elections of the Governor and Lieutenant Governor of the Commonwealth.
"Class II. Nominations and elections of electors of President and Vice-President of the United States and all officers of this Commonwealth, including Judges of the Supreme and Superior Courts (except Governor and Lieutenant Governor), who now are or hereafter shall be required to be nominated or elected by the electors of the State at large, and nominations of United States Senators.
"Class III. Nominations and elections of judges of the several courts of records, to be learned in the law, other than Judges of the Supreme and Superior Courts.
"Class IV. Nominations and elections of Senators and Representatives in the General Assembly, and nominations of Representatives in Congress.
"Class V. All other officers, whether nominated or elected by the qualified voters of counties, cities, boroughs, townships, wards, school districts, poor district or any other division of the State." All of the parties concerned agreed that the present contest was a Class V action.
Section 3431 of the Pennsylvania Election Code entitled "Jurisdiction" states: "Cases of the fifth class shall be tried and determined upon petition of twenty registered electors, as hereinafter provided
Section 3456 entitled "Petition, time of filing amendment" states:
"The commencement of proceedings in the case of contests of second, third, fourth and fifth classes shall be by petition, which shall be made and filed, as hereinafter required, within twenty days after the day of the primary or election, as the case may be. The petition shall concisely set forth the cause of complaint, showing wherein it is claimed that the primary or election is illegal, and after filing may be amended with leave of court, so as to include additional specifications of complaint. After any such amendment, a reasonable time shall be given to the other party to answer."
Although section 3456 of the Pennsylvania Election Code permits a party to amend a petition to aver "additional specifications of complaint," it does not permit amendments to meet expressed jurisdictional requirements. Counsel for petitioners has cited Snodgrass's Case, 267 Pa. 494, 110 Atl. 293 (1920), as support for her contention that even after the twentieth day as prescribed by section 3456 an amendment can be allowed to meet a jurisdictional requirement. Counsel's reliance upon Snodgrass is misplaced. First, the Supreme Court in Snodgrass's Case, supra, stated at page 497: "Therefore, all matters which merely concern exactness or particularity in the petition, as distinguished from the omission of facts expressly required to be originally pleaded therein, may, on cause shown, be amended, even after the time limit for initiating the proceedings has expired." (Emphasis supplied.)
In a more recent decision concerning sections 3431 and 3456 of the Pennsylvania Election Code: Bayuk v. Bucks Co. Bd. of Election, 5 D. & C. 3d 328 (1977); it was again held that there could be no amendment of matters required to be pleaded upon the expiration of the 20-day time limit. In Bayuk the election contest petition was signed by only six petitioners and the 20 days in which petitioners had to file a contest action had expired before the petition could be amended. The court in Bayuk placed great reliance upon the Supreme Court's decision in Dunmore Borough's Election, 264 Pa. 231, 107 Atl. 725 (1919), and held that after the expiration of the twentieth day as set forth in section 3456 a court cannot permit amendments to meet jurisdictional requirements. This court itself has searched to find case law which would have permitted it to allow an amendment such as the one in question after the expiration of the time limit; however, the court was unable to find any such case.
It is unfortunate that counsel for petitioners did not file a petition sooner than the last day permitted by section 3456 of the Pennsylvania Election Code.
"The Pennsylvania Election Code, Act of June 3, 1937 P.L. 1333, art. 1 §101 et seq., as amended, 25 P.S. §2601 et seq., reflects a clear intention of the Legislature to expeditiously dispose of objections and to provide for prompt certification of the vote. The integrity of the election process requires immediate resolution of disputes that prevent certification. This is particularly true in Primary Elections where the results must be finalized in sufficient time to enable the election machinery to be readied for the General Election. Recognizing these considerations, this Court has held that compliance with statutorily imposed time limits is especially important in this area."
The court holds that the petition for election contest failed to comply with section 3431 of the Pennsylvania Election Code and that the court does not have the power to permit an amendment which would establish jurisdictional requirements after the expiration of the 20-day time limit as set forth in section 3456 of the Pennsylvania Election Code.
Question II: Did The Petition For Election Contest Set Forth A Cause Of Action?
The setting aside of any election is a matter of grave concern and such a remedy should be granted only as a last resort. Those who seek such an extraordinary remedy must plead sufficient facts to enable a court to conclude that an error or fraud of such gravity and magnitude has been committed which makes it impossible for the court to ascertain the true will of the electorate. The Supreme Court of Pennsylvania stated in Winograd v. Coombs, 342 Pa. 268, 20 A.2d 315 (1941), at 271-272:
"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 (as the case may be) 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."
The courts must always be cognizant of the fact that those among us who have properly voted have a right to expect that vote to be counted. It is not enough for a petitioner in a contested election to aver facts which if proven might cause a change in the reported results; but rather a petitioner must aver facts that if proven would definitely change
Chief Justice Michael J. Eagen, in writing for the Supreme Court in Madigan Appeal, 434 Pa. 361, 253 A.2d 271 (1969), stated at page 365 the holding of the lower court in Weaver v. Given, 6 Phila. 65, which was: "`"The court will not grope in the dark, or follow a contestant on a fishing expedition, in the hope of being able to find enough to enable him by the investigation to make out his case."'"
There can be no doubt that the paramount concern of a court when faced with a contested election is to ascertain the true will and desire of the electorate; but the court cannot allow a shadow to be cast upon the will of the electorate on the basis of mere speculation.
The petition for election contest in the present case is composed of 75 paragraphs; however, many of the paragraphs can be grouped together and shown to be suffering from a common deficiency. Paragraphs (3), (16), (30), (46) and (68) all aver that fraud or error was possible but fail to aver that it did in fact occur. Illustrative of this point is paragraph (3) which states: "The action taken by the County Board of Elections and Registration Commission and employees under their control aided and abetted an outmoded election process which makes possible widespread abuse, illegality, fraud, negligence, irregularity, and human error."
Even should the court accept everything which this paragraph avers as being true, there is no allegation that illegality, fraud, negligence, irregularity
Perhaps the most widespread and glaring defect throughout this petition for new election is the fact that it calls upon the court to make very broad assumptions which are not supported by any facts in the pleadings. Paragraphs (28), (31), (33), (42), (46), (50), (58) and (59-69) best demonstrate this weakness.
Paragraph (28) states: "Petitioners allege that voting machines which were non operative for whatever reason caused the loss of a sufficient number of votes for mayoralty candidate Charles W. Bowser which materially affected the outcome of the election." Paragraph (28) requires the court to assume that when a voting machine malfunctioned it adversely affected candidate Bowser only and that candidate Bowser would have been the recipient of all votes which were lost due to machine failure. The petitioners ask the court to act upon a broad assumption despite their failure to plead facts in support of that assumption. The petitioners throughout their petition fail to name any
Paragraph (31) states: "Petitioners allege that the late changes in the polling locations caused the loss of substantial number of votes for candidate Charles W. Bowser." This paragraph calls upon the court to make two assumptions. First, this court must conclude that votes were lost due to a late change in polling places and, second, the court must conclude that all votes lost would have gone to candidate Bowser. As with paragraph (28), the petitioners have failed to support their allegations in paragraph (31) with any factual averments. Further discussion of paragraph (31) would serve only to reiterate the court's views as discussed in its analysis of paragraph (28).
Paragraphs (59-69) allege that illegal assistance was rendered to different voters in the voting booth; each paragraph named a different location; there is however no mention for whom the vote was cast. The petitioners apparently believe the court should conclude that if an illegal vote was cast it was cast for candidate Green, notwithstanding their failure to plead any facts which would permit the court to draw this conclusion. Although each of the complaints in the above cited paragraphs may differ in its substance, there is a common denominator and that is that each requires the court to draw broad assumptions. It should be stated that the court has chosen to discuss the above paragraphs because it believes that they best exemplify the petitioners' failure to state a cause of action, and that the paragraphs chosen best demonstrate the deficiencies which the court found throughout the petition for election contest.
Although this court believes that the above discussion
Query: If this court were to have ordered a new election, how would the court have conducted it? If there are complaints about the present system, are the petitioners suggesting that this court would be called upon to hire entirely new personnel to conduct this election and new machines? Or just what should the system be?
The court suggests that the Acting County Board of Elections was acting properly when it retained and used the present personnel and the present machinery, and that the attempts to repair the voting machines and to get additional machines were proper exercises of its discretion. The Acting County Board of Elections had little alternative; in fact they had practically none. It also appears to the court that the petitioners, aside from requiring the court to take upon itself a task which no court is capable of carrying out, would have the court substitute its will for that of the legislature. If there is a need for reform in the electoral process, it must come from the legislature and not from the court acting upon an election contest petition.
To conclude, this court dismissed the petition for
Finally, even had the petition for election contest and the amended petition for election contest not suffered from the above stated defects both petitions would have been dismissed due to their failure to state a cause of action.