Pennsylvania Advisory Opinions November 06, 1972: AGO 156 (November 06, 1972)

Advisory Opinion Text

Absentee Voting—Right to do so Despite Loss of Registration Records in Flood.

1. Loss of part of an elector's registration record is not a basis for refusing to process an absentee ballot application of such an elector if his/her name and address appears on surviving election records as having been properly registered.

Honorable C. DeLores Tucker

Secretary of the Commonwealth

Department of State

Harrisburg, Pennsylvania

Dear Mrs. Tucker:

You have requested my opinion of whether an elector who has properly registered for the impending election should be denied the right to vote absentee because a part of his or her registration record was lost during the June flood.

It is my opinion, and you are formally advised, that an elector should not be deprived of the right to vote absentee because of the loss of some part of the registration records during the June flood.

Under the circumstances presented, all the voter signature cards and "Permanent Voter Registration" forms of voters in Luzerne County were lost as a result of flooding of the County Court House. A record of the names and addresses of electors who had been properly registered did survive. The Legislature has facilitated replacement of lost records of some registered voters by allowing them to complete such records until the closing of the polls on Election Day. See Act No. 1, Special Session No. 2, 1972, October 6, 1972.

However, the Legislature failed to make any provision to replace the lost records of registered voters who are unable to physically return to the Court House or polling place before Election Day. A number of voters had properly registered before the time the records were destroyed, anticipating they would be unable to return before or on Election Day. Such individuals registered in the knowledge that, once properly registered, existing Pennsylvania Law permits an absentee elector to make application for an absentee ballot and vote by mail. Section 20 et seq., Act of August 13, 1963, P. L. 707, as amended, 25 P. S. § 3146, et seq.

There is no legal basis to deprive these individuals, shown to be registered in surviving records, of the right to vote absentee solely because of their present inability to physically return to the voting district to replace records lost through an unavoidable general catastrophy.

Local election officials of Luzerne County are to be instructed that loss of some part of an elector's registration record is not a basis for refusing to process an absentee ballot application of such an elector, if the elector's name and address appear on surviving election records as having been properly registered. Enclosed with the absentee ballot sent to such voters must be a "Permanent Voter Registration" form and signature card to be filled out by the voter to replace the lost records. Additionally, the voter should be required to affirm that he or she is eligible to vote and will vote only by the enclosed absentee ballot. Such documents must be notarized.

Of course, the regular statutory safeguards to protect the security of the ballot will fully apply to those absentee ballots. For example, see Act of July 25, 1913, P. L. 1043, § 2, as amended, 25 P. S. § 2920; Act of April 29, 1937, P. L. 487, § 20, as amended, 25 P. S. § 951-20; Act of April 29, 1937, P. L. 487, § 36, as amended, 25 P. S. § 951-36; Act of June 3, 1937, P. L. 1333, § 417, as amended, 25 P. S. § 2687; Act of June 3, 1937, P. L. 1333, § 1850 et seq., as amended, 25 P. S. § 3550 et seq.

Sincerely yours,

Barton Isenberg, Deputy Attorney General.

J. Shane Creamer, Attorney General.