Opinion
Argued September 14, 1984
October 29, 1984.
Elections — Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333 — Deadline for absentee balloting — Words and phrases — Shall — Federal elections — State elections — Technical violation.
1. The word, shall, in legislation will ordinarily be considered mandatory except when referring to the time within which a public official must act, but the controlling factor in determining whether the word is directory or mandatory in effect is the intent of the legislature to be ascertained from a consideration of the entire statute, its nature and its object and the consequences that would result from each construction. [596-7]
2. Provisions in the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, that no absentee ballot shall be counted which is received after a specified time and date are mandatory, identifying which ballots are to be counted as opposed to establishing a time for action by an official in counting ballots. [597]
3. The fact that under federal regulations a particular absentee ballot will be counted in election of federal officers does not require that a ballot not received within the time established by statute be counted in state contests. [598]
4. The timeliness of an absentee ballot is not a minor or technical matter, and the untimeliness of an absentee ballot is a substantive violation of provisions of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333. [598-9]
Argued September 14, 1984, before Judges DOYLE, COLINS and BLATT, sitting as a panel of three.
Appeal, No. 1767 C.D. 1984, from the Order of the Court of Common Pleas of Chester County in case of In Re: April 10, 1984 Election of East Whiteland Township, Chester County, Pennsylvania, Election District Sixth Precinct, No. 84-02985.
Petition for recount filed in the Court of Common Pleas of Chester County. Petition denied. GAWTHROP, III, J. Petitioners appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Carole J. Wildoner, with her, Jeffrey P. Lewis, for appellants.
John Wm. Schreck, with him, Joseph E. Brion and John Halstead, for appellee, Florence D. Hunt.
Appellants appeal from the order of the Chester County Court of Common Pleas which denied their Petition for Recount under Section 1701 of the Pennsylvania Election Code (Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P. S. § 3261.
Alexander W. Clark, Jr., Kenneth S. Halpern and John A. Umberger.
The matter before us concerns the primary election held in East Whiteland Township, Chester County on April 10, 1984, in which there was a tie vote for the position of Republican female committee member for the sixth precinct. The two contestants, Helen Clark and Florence Hunt, settled the tie with a coin toss in which Hunt prevailed. It was established, however, that the Chester County Board of Elections (Board) had not counted the absentee ballots which were received after Friday, April 6, 1984, pursuant to Section 1308(a) of the Code, which states in pertinent part:
The ballot was, however, because of federal law, counted toward the contests in the Presidential primary, Senatorial primary, and United States Representatives' primary, and toward the delegates to the Republican National Convention. See, infra, footnote 5.
Added by Section 11 of the Act of March 6, 1951, P.L. 3 as amended, 25 P. S. § 3146.8(a).
No absentee ballot shall be counted which is received in the office of the county board of election later than five o'clock P.M. on the Friday immediately preceding the primary or November election.
Under this Section, the absentee ballot of Appellant Alexander W. Clark, Jr., which was mailed on Wednesday, April 4, but not received by the Board until Monday, April 9, was not counted toward the committee member's race.
Appellants petitioned the Court of Common Pleas, requesting a recount to include Appellant Clark's absentee ballot, together with two other absentee ballots which were received by the Board after the Friday, April 6 deadline, but before the date of the election. Appellants' petition was denied by the trial court's opinion and order of June 8, 1984, and this appeal followed.
Before this Court Appellants argue that the trial court erred in interpreting the term "shall" appearing in Section 1308(a) of the Code as mandatory rather than directory. While the word "shall" may be interpreted as either mandatory or directory, it will usually be considered as mandatory, unless it refers to the time within which a public official must act. Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965); Delaware County v. Department of Public Welfare, 34 Pa. Commw. 165, 383 A.2d 240 (1978); Kowell Motor Vehicle Registration Case, 209 Pa. Super. 386, 228 A.2d 50 (1967). The controlling factor in each case is the intention of the legislature, which "is to be ascertained from a consideration of the entire act, its nature, its object and the consequences that would result from construing it one way or the other." Francis, 418 Pa. at 428, 211 A.2d at 509, quoting Pleasant Hills Borough v. Carroll, 182 Pa. Super. 102, 106, 125 A.2d 466, 468 (1956). A consideration of the language of Section 1308(a), as well as the nature and object of the entire Code, leads us to the inescapable conclusion that the term "shall" as used in this Section is intended to be mandatory in nature.
The Code sets forth various time requirements for the completion of balloting, the strict enforcement of which is necessary to ensure the fair and orderly administration of elections. Appellants do not dispute the necessity of such deadlines, but rather argue that the mandatory deadline for absentee balloting should be the same as that which applies to voting in person. This argument, however, questions not the construction of Section 1308(a), but rather the wisdom of the Code itself, a matter not properly reviewable by this Court. In addition, we are not persuaded by Appellants' argument that Section 1308(a) should be considered directory because it refers to a time within which an official must act. The pertinent language of the Section does not specify the time within which the Board must count the absentee ballots; instead it specifies which absentee ballots the Board must count.
Appellants also argue that Section 1308(a) must be construed as directory in order for it to be consistent with Section 1306(a) of the Code, which allows an absentee voter to complete his ballot within the same time period as the ballot is to be received by the Board under Section 1308(a). Appellants' argument that a ballot could not be completed by the voter and received by the Board at the same time ignores the language in Section 1306(a) which allows submission of the ballot to the Board in person as well as by mail. Thus, we can find no inconsistency between the provisions of these two Sections.
Added by Section 11 of the Act of March 6, 1951, P.L. 3, as amended, 25 P. S. § 3146.6(a).
Appellants next argue that the Board itself does not consider Section 1308(a) as mandatory, because it counted Appellant Clark's ballot toward contests for federal offices. While we note that the Board's own characterization of Section 1308(a) would not, in any event, be determinative upon this Court, it is clear that the Board did not disregard the mandatory nature of this Section, but applied it in view of federal law which establishes a different set of rules for absentee ballots in federal elections. The fact that Section 1308(a) has been superseded by federal law with regard to federal contests does not alter its mandatory nature with regard to state contests.
See 42 U.S.C. § 1973aa-1(d) (1982). See also Federal Voting Rights Act Amendments of 1970, 58 Pa. D. C.2d 504 (1972).
Finally, Appellants argue that Section 1308(a) should be interpreted as directory pursuant to the general rule that the Election Code is to be liberally construed in order to save every possible ballot. Absentee Ballots Case (No. 1), 431 Pa. 165, 245 A.2d 258 (1968); Norwood Election Contest Case, 382 Pa. 547, 116 A.2d 552 (1955). While it is true that a defect which is minor or technical in nature will not void an otherwise valid ballot, violations of substantive provisions of the Code cannot be overlooked on the pretext of pursuing a liberal construction. See Trusio Election Case (No. 370 C.D. 1980, filed March 20, 1980). Appellant has cited cases involving ballots which were allowed despite technical defects in the manner in which they were completed. The matter before us, however, involves no technical defect on the face of the ballot, but rather the lack of timeliness of the ballot itself. Such non-compliance constitutes a substantive violation of the Code, and the Board was correct in refusing to count the ballot toward the committee member election.
Accordingly, we affirm the opinion and order of the Court of Common Pleas of Chester County which denied Appellants' Petition for Recount.
ORDER
NOW, October 29, 1984, the order of the Court of Common Pleas of Chester County, Docket No. 84-02985, dated June 8, 1984, is hereby affirmed.
Judge PALLADINO did not participate in this decision.