Pennsylvania Advisory Opinions December 15, 1919: AGO 138

Advisory Opinion Text

IN RE BALLOTS.

The Act of July 9, 1919, P. L. 829, made a radical change in the method of voting, at a general or municipal election. Where a ballot marked with a cross-mark (X) in the party square also contains a cross-mark opposite the name of one of two or more candidates on the same party ticket, for the same office, every candidate of that party will receive one vote, except the candidates for the office which the voter marked individually. As to that office, only the candidate whose name was followed by the cross-mark (X) receives a vote.

Honorable Cyrus E. Woods, Secretary of the Commonwealth, Harrisburg, Pa.

Sir: There was duly received your communication of the 3rd inst. inquiring to be advised how a ballot marked as follows should be counted:

"The voter makes a cross-mark (x) in a party square in the straight party column on the ballot and also makes a cross-mark (x) opposite the name of one candidate of the same party for an office where two are to be elected."

The answer to the question involves the interpretation of the Election Law approved July 9, 1919, P. L. 1919, P. L. 829, which is the last amendment of the twenty-second section of the Act of June 10, 1893, P. L. 419. This is the section of our election law which provide the method of preparing and marking the ballot at the election, as distinguished from the primary.

Since 1893, the Aets of Assembly have provided two methods of voting, the one where the voter desired to vote for all the candidates of a particular political party; and the other where he desired to vote for particular candidates. In the first case, the simplest method of expressing his intention was by marking in the party square; in the second case, it is necessary to place the cross-marks after individual names. These methods were mutually exclusive. When a voter had placed a cross in the party square he had exhausted his privilege of voting . See Gearhart Township Election, 192, Pa. 446; and Dailey's Appeal, 232 Pa. 540. No further marking was allowed unless the voter wished to mark the names of all his party nominees in addition to marking in the same party square, or unless there were two officers to be elected and only one name was printed in the party designation, in which case the voter might vote for the candidate of another party. Pfaff v. Bacon, 249 Pa. 297.

The Act of 1919 made a radical change in the law by the following language:

"* * * * Provided, That the voter may make a cross-mark in the appropriate square, opposite the name of the party of his choice, in the straight party column on the left of the ballot, and may also make a cross-mark in the square to the right of any individual candidate whom he favors. In such case his vote shall be counted for all the candidates of the party in whose straight party column on the left of the ballot he placed such cross-mark, except for those offices for which he has indicated his choice by marking in the squares to the right of individual candidates, and his vote shall be counted for such individual candidates which he has thus particularly marked, notwithstanding the fact that he made a mark in the straight party column on the left of the ballot: Provided further, That in any case where more than one candidate is to be elected to any office, the voter shall, if he desires to divide his vote among candidates of different parties, make a cross (x) mark in the appropriate square, to the right of each candidate for whom he desires to vote, not exceeding the total number to be elected for such office, and no vote shall be counted for any candidate in such group not individually marked, notwithstanding the mark in the party square."

The evident purpose and certain effect of this amendment was to render it easy to cut a straight party ticket by making it possible for a voter to make a cross-mark in a party square and also to place cross-marks to the right of the names of any individual candidates whom he favors. Under this provision of the law, where a cross-mark (x) is placed in a party square and an additional cross-mark (x) is placed in a square to the right of the name of a candidate for any office on the same or any other party ticket, the latter cross-mark (x) eliminates that office from the effect and operation of the cross-mark (x) in the party square. This is true whether one or more than one candidate is to be elected to that office and whether the voter divides his vote between candidates of different parties or votes for the proper number of candidates of one party or votes for less than the whole number of candidates for that office for whom he is entitled to vote. In every such case, as to the office so eliminated from the effect of the mark in the party square the vote must be counted only for the candidates opposite whose names the cross-mark (x) has been placed, as though there were no mark in the party square; provided, of course, that the voter has not invalidated his ballot for that office by marking more than the requisite number of candidates. As to the offices not thus eliminated from the effect of the mark in the party square, that mark casts a vote for each candidate of the party m whose party square the cross-mark (x) was placed.

Specifically answering your inquiry, therefore, when a voter makes a cross-mark (x) in a party square in the straight party column on the ballot and also makes a cross-mark (x) opposite the name of one candidate of the same party for an office where two are to be elected, the cross-mark (x) in the party square operates to cast a vote for every candidate of the party in whose party column it was placed, except the candidates for the office for which the voter marked individually. As to that office, only the candidate whose name was followed by the cross-mark (x) receives a vote.

Very truly yours,

ROBERT S. GAWTHROP, First Deputy Attorney General.