# Absentee Ballots Case > Supreme Court of Pennsylvania · November 15, 1966 · 423 Pa. 504 URL: https://www.frixlaw.com/law-library/cases/9534694 ## Case - **Full name:** Absentee Ballots Case - **Court:** Supreme Court of Pennsylvania - **Decided:** November 15, 1966 - **Citations:** 423 Pa. 504; 224 A.2d 197; 1966 Pa. LEXIS 499 - **Precedential status:** Published - **Opinion:** Dissent by Jones - **Judges:** Bell, Musmanno, Jones, Cohen, Eagen, O'Brien, Roberts - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9534694 ## Opinion text Dissenting Opinion by Me. Justice Jones: My study of the issues involved on these appeals compels the conclusion that the majority of this Court err in deciding that the scope of permissible appellate review in this case is on narrow certiorari. Having so decided, the majority of this Court — having found the court below had jurisdiction, that the proceedings were regular, that there was no excession of powers nor a violation of any constitutional right— refused to inquire into the merits of the controversy. If the majority is correct that the instant scope of review is on narrow certiorari, then, of course, the validity of the challenged ballots is not before the Court. Whether these appeals come before us on narrow or broad certiorari depends upon the language of the *518 statute by virtue of which the present appeals have been perfected. Section 1407 of the Election Code (Act of June 3, 1937, P.L. 1333, §1407, 25 P.S. §3157) provides for an appeal to the court of common pleas from an order or decision of the county election board regarding the computation or canvassing of the returns of any primary or general election or regarding any recount or recanvass thereof where fraud or error is alleged under §§1701, 1702 and 1703 of the Election Code, supra, 25 P.S. §§3261-3263. Section 1407 specifically provides, inter alia: “No appeal shall be allowed or granted from any order or decree of the court of common pleas made in pursuance of this section.” Unquestionably, upon an appeal taken under §1407 the scope of appellate review is in the nature of a narrow certiorari: Perles v. Northumberland County Return Board, 415 Pa. 154 , 202 A. 2d 538 (1964); Meell Appeal, 405 Pa. 184 , 174 A. 2d 110 (1961); Fitch Appeal (No. 2), 405 Pa. 174 , 174 A. 2d 25 (1961). In 1963, the legislature amended the Election Code (Act of August 13, 1963, P.L. 707, §24, 25 P.S. §3146.8). 1 Under §1308 of that amendment, referring specifically to absentee ballots, it is provided that the decision of the board in upholding or dismissing any challenge may be reviewed by the court of common pleas. However, §1308 contains no provision concerning an appeal from the order of the court of common pleas and is completely silent concerning the right of appellate appeal. Unquestionably, upon an appeal under §1308 the scope of review would be on broad certiorari and, upon such review, the appellate court may inquire into the merits of the controversy: Cullen Appeal, 392 Pa. 602 , 141 A. 2d 389 (1958); Kaufman Construction Co. v. Holcomb, 357 Pa. 514 , 55 A. 2d 534 (1947). *519 My reading of and comparison of §§1308 and 1407 indicates that a review on the appellate level may be had on broad certiorari under §1308 and on narrow certiorari under §1407. Whether such dual method of review is wise or not lies within the legislature and not the judicial province. I am convinced that these appeals are under §1308, not §1407, and that the scope of review is on broad, not narrow, certiorari. Even though §1308 is an amendment to the Election Code, supra, such fact does not compel the conclusion that §1407 provides the sole vehicle for appellate review. That provision in §1407 which prohibits appeals from the order or decree of the court of common pleas applies only to such order or decree of the court of common pleas which had been made “in pursuance of this section”, i.e., §1407. By its explicit language, the prohibition against appeals refers only to appeals in orders or decrees made under §1407 and cannot be extended to any other section of the Election Code, as for instance, §1308. Moreover, an analysis of both §§1407 and 1308 reveals that the former section deals with the computation or canvassing of the election returns and with the recounting or recanvassing of such returns where fraud or error is alleged, while the latter expressly provides not for the mere counting of ballots but for the resolution of questions concerning the qualifications of absentee voters. In fact, §1308 expressly provides that: “Pending the final determination of all appeals [under §1308], the board shall suspend any action in canvassing and computing all of challenged ballots . . .”, a fact which the majority in its opinion notes has been done in the instant case. A comparison of §§1308 and 1407 and the language employed therein convinces me that these appeals can only lie under §1308 and, that being so, under our case law our scope of review is upon broad certiorari and requires an inquiry into the merits of the controversy. *520 As to the merits of the controversy, I find myself in agreement with the views expressed by Mr. Justice Bobekts in his Concurring and Dissenting Opinion, I believe that the action of the court below should be sustained with respect to: (a) “those challenges directed to the qualifications of the elector, as set forth in §20 of the 1963 amendment to the Election Code, to exercise the privilege of absentee voting”; (b) “with respect to the challenges directed to matters which could have been raised ‘had . . . [the elector] presented himself in his own district to vote other than by absentee ballot. . . .’ ” However, I am of the opinion that challenges to absentee ballots, made subsequent to the election, upon the ground of some technical errors of form upon the applications for such ballots and at a time when the elector can no longer cure such errors, should not be sustained. I would affirm the orders of the court below with the modification that the matter should be remanded to the court below to dismiss all challenges predicated upon minor irregularities in the applications of the electors for absentee ballots. This Act was not applicable in Perles, Meell or Fiteh, supra. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9534694. Public record. Not legal advice.