Pennsylvania Advisory Opinions September 15, 1972: AGO 148 (September 15, 1972)

Advisory Opinion Text

Enforcement of election laws of Pennsylvania as mandated by the Federal Voting Rights Act Amendments of 1970: Absentee balloting rights in presidential and vice-presidential elections, Absentee registration rights in presidential and vice-presidential elections, Voting eligibility of an individual who moves from his voting district within thirty (30) days of an election for President and Vice-President, Sanction under Federal law—Secretary of State to issue instructions to local election officials.

1. Any person who is otherwise eligible to vote and who affirms that he or she will be absent for any reason from the election district on an election day at which votes cast for President and Vice President must be permitted to vote for President and Vice President by absentee ballot provided that application for such ballot is made not later than seven (7) days prior to such election day and such ballot is returned to the appropriate election official not later than the time of closing of the polls.

2. Any person otherwise eligible to vote absentee for President and Vice President and who affirms that he or she is unable to register in person by reason of absence from the election district for any reason, must be allowed to register absentee for purposes of qualifying to vote as an absentee elector for President and Vice President providing that the application therefor is made not later than thirty (30) days prior to election day.

3. Any person who is otherwise eligible to vote and who affirms that he or she has ceased to reside in an election district in Pennsylvania and established residence in another election district in Pennsylvania or in another State within thirty (.80) days of an election for President and Vice President, and that because of the recent change of residence is not eligible to register and vote in his or her new election district or State, must be allowed to vote for President and Vice President by absentee ballot in the former election district providing that application for such absentee ballot is made not later than seven (7) days prior to such election day and that such absentee ballot is returned to the appropriate official not later than the time of the closing of the polls.

4. Any voting official depriving any person of any of the above rights secured by the Federal Voting Rights Act Amendments of 1970 is subject to being fined up to $5,000 or being imprisoned up to five (5) years, or both.

Harrisburg, Pa,

Honorable C. DeLores Tucker

Secretary of the Commonwealth

Harrisburg, Pennsylvania

Dear Mrs. Tucker:

You have asked our advice regarding the effect of provisions of the Federal Voting Rights Act Amendments of 1970, P. L. 91-285, June 22, 1970, § 4, Stat. 314, et seq., 42 U. S. C. 1973aa, et seq., on the enforceability of existing Pennsylvania law regulating absentee balloting and absentee registration for presidential elections by qualified electors. Title II of the 1970 Voting Rights Act Amendments requires voting laws to meet specified nationwide, uniform standards for absentee registration and absentee balloting in presidential and vice-presidential elections. See 202(b) (2) of the Voting Rights Act Amendments of 1970, 42 U. S. C. 1973aa-l(b) (2). Pennsylvania local election officials are required to comply with applicable provisions of the Federal law or face penalties of up to five (5) years imprisonment or fines up to $5,000, or both.

Because there is no law bringing State and local elections into harmony with federally-established standards for presidential and vice-presidential elections, great administrative burdens will be imposed on Commonwealth election officials. Under the provisions of the 1970 Voting Rights Act Amendments, local and state election officials will be required to follow a completely separate set of standards for numerous Pennsylvania voters who will be qualified only as presidential and vice-presidential electors.

While the Legislature still has an opportunity to avoid these complications by quick enactment of presently-pending Senate Bills 1540, 1541, 1542, 1543 and 1544, the shortness of time before which local election officials must begin processing absentee ballots and absentee registrations, necessitates that all election officials be immediately instructed regarding their duties and liabilities under the 1970 Voting Rights Act Amendments.

Accordingly, you are hereby formally advised and instructed that in accordance with the requirements of the Voting Rights Act Amendments of 1970, the following rights must be extended to all qualified individuals:

A. Any person who is otherwise eligible to vote and who affirms that he or she will be absent for any reason from the election district on an election day at which votes are cast for President and Vice-President must be permitted to vote for President and Vice-President by absentee ballot provided that application for such ballot is made not later than seven (7) days prior to such election day and such ballot is returned to the appropriate election officials not later than the time of closing of the polls. See § 202(d) of the Voting Rights Act Amendments of 1970. 42 U. S. C. 1973aa-l (d).

B. Any person otherwise eligible to vote absentee for President and Vice-President, and who affirms that he or she is unable to register in person by reason of absence from the election district for any reason, must be allowed to register absentee for purposes of qualifying to vote as an absentee elector for President and Vice-President providing that the application therefor is made not later than thirty (30) days prior to election day. See § § 202(d) and 202(f) of the Voting Rights Act Amendments of 1970, 42 U. S. C. 1973aa-l(f).

C. Any person who is otherwise eligible to vote and who affirms that he or she has ceased to reside in an election district in Pennsylvania and established residence in another election district in Pennsylvania or in another State within thirty (so) days of an election for President and Vice-President, and that because of the recent change of residence is not eligible to register and vote in his or her new election district or State, must be allowed to vote for President and Vice-President by absentee ballot in the former election district providing that application for such absentee ballot is made not later than seven (7) days prior to such election day and that such absentee ballot is returned to the appropriate official not later than the time of closing of the polls. See § 202(e) of the Voting Rights Act Amendments of 1970, 42 U. S. C. 1973aa-l(e).

D. Any voting official depriving any person of any of the above rights secured by the Federal Voting Rights Act Amendments of 1970 is subject to being fined up to $5,000 or being imprisoned up to five (5) years, or both. See § 204 of the Voting Rights Act Amendments of 1970, 42 U. S. C. 1973aa-3.

Existing provisions of the Constitution or laws of Pennsylvania which prevent any of the above rights mandated in the 1970 Voting Rights Act Amendments from being extended to qualified individuals are declared unenforceable insofar as such provisions apply to presidential and vice-presidential elections. Accordingly, the following provisions of Pennsylvania law must be enforced as described below:

1. Section 20 of P. L. 707, August 13, 1963, as amended, 25 P. S. § 3146.1 shall be extended to include as a qualified absentee elector for presidential and vice-presidential elections any qualified elector who will be absent for any reason from his or her voting district on election day.

2. Section 20 of P. L. 707, August 13, 1963, 25 P. S. § 3146.2 shall be enforced as requiring that a qualified absentee elector for President and Vice-President affirm that he is unable to vote in person because of absence from his or her voting district. Such a qualified voter need only affirm that he or she will be absent from the election district on election day in order to qualify for an absentee ballot for presidential and vice-presidential elections. A right to an absentee ballot for presidential and vice-presidential elections may not be limited only to those cases where the absence of qualified elector is necessitated by military service, governmental service, physical handicap, or other reason specified in § 3146.2, supra.

3. Section 1302.1, Article XIII of P. L. 1333, June 3, 1937, as amended, 25 P. S. § 3146.2a shall be enforced as requiring that an application for an absentee ballot for a presidential and vice-presidential election be honored if received in the Office of the County Board of Elections not later than seven (7) days immediately prior to the election.

4. Section 1302.2, Article XIII of P. L. 1333, June 3, 1937, as amended, 25 P. S. § 3146.2b shall be enforced as including as qualified absentee electors for the presidential and vice-presidential election, all voters qualified to vote absentee under the provisions of the Voting Rights Act Amendments of 1970.

5. Section 1302.3, Artice XIII of P. L. 1333, June 3, 1937, as amended, 25 P. S. § 3146.2c shall not be construed as preventing local election officials from segregating files and lists of voters eligible to vote only for President and Vice-President, from files and lists of other eligible voters.

6. Section 22 of P. L. 707, August 13, 1963, as amended, 25 P. S. § 3146.3 shall not be construed to prevent local election officials from printing special absentee ballots for individuals qualified to vote only for President and Vice-President.

7. Section 22 of P. L. 707, August 13, 1963, as amended, 25 P. S. § 3146.4 shall not be construed as preventing envelopes for absentee ballots from individuals qualified to only vote for President and Vice-President from being accordingly marked.

8. Section 22 of P. L. 707, August 13, 1963, as amended, 25 P. S. § 3146.5 shall be enforced as requiring that absentee ballots of voters eligible to vote only for President and Vice-President be delivered or mailed in accord with the provisions of this section for applications filed by qualified electors.

9. Section 22 of P. L. 707, August 13, 1963, as amended, 25 P. S. § 3146.6 shall be enforced as requiring the counting of any absentee votes cast for President and Vice-President if the absentee ballot is received before the closing of the polls on election day. This provision shall apply to all absentee votes cast for President and Vice-President, whether the ballot is by absentee electors qualified to vote only for President and Vice-President under the provisions of the Voting Rights Act Amendments of 1970 or absentee electors qualified to vote in all Federal, State and local elections. Any such absentee ballots may be delivered directly to the County Board of Elections up until the closing of the polls on election day.

10. Section 1306.1, Article XIII of P. L. 1333, June 3, 1937, as amended, 25 P. S. § 3146.6 shall be enforced as requiring that designated assistance be available, when required, to all qualified absentee voters, including those voters qualified only for purposes of presidential and vice-presidential elections. Further, this section shall be enforced as allowing an elector only qualified to vote for President and Vice-President under the provisions of the 1970 Voting Rights Act Amendments to cast such a ballott in person at his or her polling place as directed by the special elections Court of the Court of Common Pleas.

11. Section 24 of P. L. 707, August 13, 1963, as amended, 25 P. S. § 3146.8 shall not be enforced to deprive any individual of rights guaranteed by the Voting Rights Act Amendments of 1970. Further, this section need not be enforced to require the distribution of absentee ballots to the absentee voter's local election district, when such absentee ballots can only contain votes valid insofar as the presidential and vice-presidential elections are concerned. Such absentee ballots must be examined and counted separately from absentee ballots which might contain votes valid for all Federal, State and local elections. Provisions of this section requiring a $10.00 deposit by any individual challenging an absentee vote before the Election Board shall apply to challenges to absentee ballots of individuals who only claim the right to vote for President and Vice-President. Challenges to absentee ballots of individuals qualified under the 1970 Voting Rights Act Amendments, must be based on provisions of that law.

12. Section 14 of Article VII of the Pennsylvania Constitution shall be extended to include as a qualified absentee elector for presidential and vice-presidential elections any otherwise qualified elector who will be absent for any reason from his or her voting district on election day.

13. The election laws of Pennsylvania shall be enforced as allowing a voter otherwise qualified to cast an absentee ballot for President and Vice-President to register absentee for purposes of qualifying as an absentee elector for presidential and vice-presidential elections, if the individual is unable to register m person by reason of absence for any reason from the election district during the time the registration books are open. Procedures for such absentee registration for purposes of presidential and vice-presidential elections shall be as directed by the Secretary of the Commonwealth, acting as Chief Election Official of Pennsylvania, in accord with the general standards for absentee registrations set forth in § 20.1 of Act of March 30, 1937 P L 115, 25 P. S. § 623-20.2 and § 18.1 of Act of April 29, 1937, P, L. 487, 25 P. S. § 951-18.1.

Each of the above provisions, as well as any other affected provision of Pennsylvania law, is declared unenforceable to the extent that enforcement of that law would conflict with the granting of voting rights enumerated in the Voting Rights Act Amendments of 1970.

You are further advised that the changes in Pennsylvania's election provisions required by the Federal Voting Rights Act Amendments of 1970 pertain only to persons who seek to vote in a presidential and vice-presidential election. The present provisions of State law for elections of candidates for State and local office remain unaffected by the Federal Voting Rights Act Amendments of 1970.

As Chief Election Official of the State of Pennsylvania, you are formally advised to promptly issue complete instructions to election officials to assure that full Federal voting rights are available to all qualified individuals with the minimum possible disruption of election procedures at the local level. Further, you are formally advised to instruct all public officials charged with the administration of the election laws of Pennsylvania or with the conduct of any election, that failure to make these or other Federal voting rights available to qualified voters may make such officials subject to penalties under existing Federal law of fines of not more than $5,000, or imprisonment of not more than five (5) years, or both.

Sincerely yours,

Barton Isenberg Deputy Attorney General

J. Shane Creamer Attorney General