In Re: Nomination Petitions of Mallory B. Scott, Candidate in the Democratic Primary for the 127th State Legislative District Petition of: Thomas R. Caltagirone ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Nomination Petitions of :
Mallory B. Scott, Candidate in the :
Democratic Primary for the : No. 164 M.D. 2016
127th State Legislative District :
: Heard: March 16 and 18, 2016
Petition of: Thomas R. Caltagirone :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: March 23, 2016
Thomas R. Caltagirone (Objector) has filed a Petition to Set Aside the
Nomination Petition of Mallory B. Scott (Candidate) as a candidate for the
Democratic Nomination for the Office of Representative for the 127th Legislative
District in the General Primary Election to be held on April 26, 2016. For the
reasons that follow, this Court grants Objector’s Petition to Set Aside.
I. BACKGROUND
Pursuant to Section 912.1(14) of the Pennsylvania Election Code 1 (Election
Code), a candidate for the Office of Representative in the General Assembly must
present at least 300 valid signatures of registered and enrolled electors of the
political party of the candidate. On or about February 16, 2016, Candidate filed a
1
Act of June 3, 1937, P.L. 1333, added by Section 2 of the Act of December 12, 1984,
P.L. 968, as amended, 25 P.S. § 2872.1(14).
Nomination Petition and a Candidate Affidavit with the Department of State’s
Bureau of Commissions, Elections and Legislation (Department). The Department
issued a “Nomination Petition Rejection Notice” for the reason that the
Nomination Petition signature pages were “not copied back to back (2-sided).”
(Petition for Writ of Mandamus, ¶ 5, docketed at 74 M.D. 2016.) Candidate filed a
“Petition for Writ of Mandamus for the Acceptance of Nomination Petition”
(Mandamus Petition) with this Court. The Department did not oppose the
Mandamus Petition, so it was granted by the Court, subject to the condition that
Candidate file “a sworn affidavit from each circulator of the [N]omination
[P]etitions stating that the [P]etitions remained attached, at all times, during
circulation . . . .” Scott v. Commonwealth of Pennsylvania, (Pa. Cmwlth., No. 74
M.D. 2016, filed February 18, 2016).
On February 19, 2016, Candidate filed the original Nomination Petition,
which comprises 17 signature pages (previously 34 signature pages) containing
427 signatures on 429 signature lines, with supplemental affidavits from the two
circulators, Candidate and Luis Negron. The affidavits swore, in relevant part, that
“the two sides of each page of the nomination petition/petitions I circulated
remained attached, at all times, throughout the period from when I first circulated
these pages through the completion of the Affidavit of Circulator on side 2 of each
page.” (Supplemental Affidavits). Candidate’s Nomination Petition was accepted
by the Department. Objector, a qualified elector who resides in the 127th
Legislative District, timely filed the Petition to Set Aside at issue in this case.
Objector’s Petition to Set Aside contains three counts. Count I alleges that
238 signature lines in the Nomination Petition are invalid. Count II alleges that the
2
affidavit submitted by Mr. Negron is false and seeks to have all the signature lines
on pages 10 through 16 of the Nomination Petition stricken. Count III alleges that
Nomination Petition must be filed in the form prescribed by the Secretary of the
Commonwealth and that the individual pages of the Nomination Petition here were
not in the required form. On that basis, Objector requests this Court to strike every
signature on Candidate’s Nomination Petition.
On March 1, 2016, this Court entered a Scheduling and Case Management
Order (Scheduling Order), scheduling a hearing on the Petition to Set Aside2 and
imposing certain duties and obligations upon Objector and Candidate. The
Scheduling Order directed, inter alia, that Objector serve upon Candidate “one
digital media device (CD or USB Flash Drive) containing the objections to
signature lines in spreadsheet format and a key to the codes used in the
spreadsheet”; “secure . . . the presence of a Statewide Uniform Registry of Electors
(SURE) system operator at the hearing”; and “arrange to meet with Candidate or
[his] representative to review . . . each and every challenged signature line [prior to
the hearing].” (Scheduling Order, ¶¶ 1(B), 1(D), 3(A).) The Order further directed
both parties to file a stipulation identifying “signature line[s] to be stricken as
invalid or for which an objection is to be withdrawn” and directed Candidate to
“file a list of all signature lines . . . that are facially defective and that Candidate
intends to rehabilitate” and to describe “the manner in which Candidate intends to
rehabilitate the signature lines.” (Scheduling Order ¶¶ 3(B)(e), 3(C).)
2
The hearing originally scheduled for March 17, 2016, was rescheduled for March 16,
2016.
3
Candidate and Objector could not reach an agreement on any signature lines
to be stricken or withdrawn nor did Candidate file a list of signature lines to be
rehabilitated prior to the hearing. In accordance with the Scheduling Order,
Objector filed a witness list. Candidate did not file a witness list. The hearing
convened on March 16, 2016 at 9:30 a.m. After hearing arguments and testimony
on Counts II and III of Objector’s Petition to Set Aside, this Court proceeded to a
line-by-line review of the 238 challenged signature lines.
II. DISCUSSION
The Courts have long held that the Election Code must be construed
liberally “so as not to deprive an individual of his right to run for office, or the
voters of their right to elect a candidate of their choice.” Nomination Petition of
Ross, 190 A.2d 719, 720 (Pa. 1963); accord In re Nomination Petition of Flaherty,
770 A.2d 327, 331 (Pa. 2001). Furthermore, “the purpose of the Election Code is
to protect, not defeat, a citizen’s vote.” Dayhoff v. Weaver, 808 A.2d 1002, 1006
(Pa. Cmwlth. 2002). Thus, nomination petitions are presumed to be valid, and it is
the objector’s heavy burden to prove that a candidate’s nomination petition is
invalid. In re Nomination Petition of Shimkus, 946 A.2d 139, 141 (Pa. Cmwlth.
2008) (Cohn Jubelirer, J., single judge op.). As recently reaffirmed by our
Supreme Court:
A party alleging defects in a nominat[ion] petition has the burden of
proving such defects, and, where the court is not convinced that
challenged signatures are other than genuine, the challenge is to be
resolved in favor of the candidate. Further, the Election Code should
be liberally construed to protect a candidate’s right to run for office
and the voters’ rights to elect the candidate of their choice.
4
In re Nomination Petition of Gales, 54 A.3d 855, 857 (Pa. 2012) (citations
omitted).
Nevertheless, the Supreme Court has consistently “recognized that the
signature requirement serves as ‘a means of preventing forgery and assuring that
each elector personally signs the petition with an understanding of what he is
signing.’” Id. at 54 A.3d at 859 (quoting Flaherty, 770 A.2d at 332). This Court
is, therefore, mindful that a balance must be struck between the liberal purposes of
the Election Code and “the provisions of the [E]lection [C]ode relating to . . .
nominati[on] petitions . . . [which] are necessary . . . to prevent fraud and to
preserve the integrity of the election process.” Shimkus, 946 A.2d at 154 (citation
omitted). This Court is “entrusted with the responsibility of protecting the
Commonwealth’s compelling interest in preserving the integrity of the election
process.” In re Nomination Papers of Carlson, 430 A.2d 1210, 1212 (Pa. Cmwlth.
1981) (Crumlish, J., single judge op.). The Supreme Court may reverse this
Court’s order concerning the validity of challenges to a nomination petition only if
our findings of fact are not supported by substantial evidence, if we abused our
discretion, or if we committed an error of law. In re Nomination Papers of Nader,
858 A.2d 1167, 1177 (Pa. 2004).
During the hearing on the matter, this Court was confronted with a series of
signature line challenges that raised two unsettled legal issues. First, 12 signature
lines were signed by electors with names that differed from the names listed on
their voter registration cards insofar as the elector signed the Nomination Petition
with one surname and the voter registration card for the elector contained two
surnames. Each of these electors had traditional Spanish language surnames.
5
Objector argued that these signature lines were invalid because the names listed on
the Nomination Petition did not match a name in the voter registration system.
Second, 15 otherwise qualified electors signed the Nomination Petition and listed
addresses of residence that differed from the addresses listed for the electors on
their voter registration cards. Objector argued that these signature lines must be
stricken pursuant to the reasoning in this Court’s decision in In re Nomination
Petition of White (Pa. Cmwlth., No. 446 C.D. 2015, filed April 17, 2015) (Cohn
Jubelirer, J., single judge op.), slip op. at 11. We shall address these two legal
issues preliminarily.
A. Multiple Surnames
The voter registration cards of 12 individuals who signed Candidate’s
Nomination Petition listed traditional Spanish language surnames where the
paternal surname is combined with the maternal surname to form a single two-
name surname. See generally Yvonne M. Cherena Pacheco, Latino Surnames:
Formal and Informal Forces in the United States Affecting the Retention and Use
of the Maternal Surname, 18 T. Marshall L. Rev. 1, 9 (1992) (discussing the
tradition of Latin American names). Each of these electors signed the Nomination
Petition by using only the first of the two surnames. In determining whether a
signature on a Nomination Petition is valid, we first turn to the language of the
statute. Section 908 of the Election Code provides in relevant part:
Each signer of a nomination petition shall sign but one such petition
for each office to be filled, and shall declare therein that he is a
registered and enrolled member of the party designated in such
petition. . . . He shall add his residence, giving city, borough or
township, with street and number, if any, and shall legibly print his
name and add the date of signing, expressed in words or numbers.
6
25 P.S. § 2868.
The Supreme Court in Gales interpreted Section 908 of the Election Code
and noted that the provision “does not require that an elector sign his formal first
name” and that “the language directing an elector to ‘sign’ and print his ‘name’ is
ambiguous, as it does not delineate expressly what form of an elector’s name is
acceptable.” Gales, 54 A.3d at 859. The Supreme Court resolved the ambiguity
by looking at the purpose of the statute, which is to prevent forgery and assure
“that each elector personally signs the petition with an understanding of what he is
signing.” Id. (quoting Flaherty, 770 A.2d at 332). The Supreme Court held that
signing with a diminutive first name is acceptable
because the language of Section 908 does not affirmatively preclude
the use of an elector’s diminutive first name, the use of an obvious
diminutive first name does not compromise the integrity of the
election process, and because the Election Code is to be liberally
construed in favor of the candidate, we conclude that the
Commonwealth Court erred by striking the signatures reflecting the
electors’ obvious diminutive first names.
Id.
It is not uncommon for an individual with two Spanish language surnames to
be referred to by only one surname. See United States v. Alvarez-Ulloa, 784 F.3d
558, 562 n.1 (9th Cir. 2015) (noting the Court’s “ordinary convention is to refer to
litigants with hyphenated Hispanic surnames by the name appearing first in the
hyphenated series”). See also Cherena Pacheco, 18 T. Marshall L. Rev. at 14
(noting the societal pressures in the United States pushing Spanish speaking
women to drop second surnames). Therefore, where, through a comparison of the
relevant portion of a signature and address listed on a nomination petition with
7
voter registration cards, it is obvious that an individual is a valid elector, the
signature should not be stricken. This Court concludes that the use of one Spanish
language surname instead of two surnames in this context does not compromise the
integrity of the election process so long as (1) the address on the signature lines
matches the voter registration card; and (2) the portions of the signature that
appears on both the registration card and the petition appear to be of the same
hand. In so concluding, the Court “reaffirm[s] the principle that in cases unlike the
instant case, where it is not obvious that the signature on the nomination petition
reflects the same name that appears on the elector’s voter registration card, absent
other evidence, the signature should be stricken.” Gales, 54 A.3d at 859-60.
B. Elector Not Registered at Address
Objectors argue that 38 individuals who signed Candidate’s Nomination
Petition are not registered at the address listed on the Nomination Petition. Review
of these signature lines revealed that 15 of these 38 individuals were registered
voters in the 127th Legislative District and listed different addresses, also within the
127th Legislative District, on the Nomination Petition.
Section 908 of the Election Code requires all signers of nomination petitions
to “add his residence, giving city, borough or township, with street and number, if
any . . . .” 25 P.S. § 2868. The traditional rule, expressed by our Supreme Court in
Flaherty, was that “absent extraordinary circumstances, electors who declare a
residence at an address different than the address listed on their voter registration
card are not qualified electors at the time they sign a nomination petition unless
they have completed the removal notice required by the Voter Registration Act.”
Flaherty, 770 A.2d at 333. This interpretation of the Election Code was intended
8
to ensure that an elector signing a nomination petition is actually registered and
living in the correct district. In re Morrison-Wesley, 946 A.2d 789, 795-96 (Pa.
Cmwlth.), aff’d sub nom. In re Nomination Petition of Morrison-Wesley, 944 A.2d
78 (Pa. 2008).
More recently, this Court has adopted a more forgiving interpretation of the
Election Code. See, e.g., In re Nomination Papers of Robertson (Pa. Cmwlth. No.
507 M.D. 2012, filed September 20, 2012), slip op. at 13.3 Considering Flaherty’s
holding to have relied on the text of the Voter Registration Act in effect at that
time, which provided that voters who moved within the county could not vote in
elections unless they notified the authorities of their new address no later than 30
days preceding an election,4 the Court looked instead to a subsequently enacted
Voter Registration Act. Under the subsequent Act, a voter who has moved within
the same county is entitled to vote in one election at his old polling location even
without notifying the authorities of his or her move. Section 1501(b)(2) of the
2002 Act, 25 Pa. C.S. § 1501(b)(2). Based on the subsequent Act and recent
developments in federal election law, the panel held that “the mere fact that the
address [listed on a voter registration card] does not match [the address written on
the nominating papers] does not invalidate the signature.” In re Nomination Papers
3
Pursuant to Section 414 of the Commonwealth Court Internal Operating Procedures,
unreported opinions of a panel of the Commonwealth Court, if issued after January 15, 2008,
may be cited for “persuasive value, but not as binding precedent.” 210 Pa. Code § 69.414(a).
4
25 Pa. C.S. §§ 961.901-961.902, repealed by the Act of January 31, 2002, P.L. 18, No.
3, § 5(2).
9
of Robertson (Pa. Cmwlth. No. 507 M.D. 2012, filed September 20, 2012), slip op.
at 13.5 According to the Court:
[T]he Election Code requires only that the signer write his current
residence address and does not state that he must write the address at
which he is registered or that his present residence must match his
registered address. Where the Election Code does not affirmatively
require that information on a nomination petition or paper match the
voter registration record and the difference does not compromise the
integrity of the election process, signatures cannot be stricken based
on a difference from the voter registration records.
Robertson, slip op. at 25-26.
Balancing the competing concerns, in the Election Law of ensuring that an
elector signing a nomination petition is actually registered and living in the correct
district, and the new Voter Registration Act, of allowing individuals who have
moved without notifying the authorities to continue to vote, is complicated. It is
not surprising, then, that this Court’s jurisprudence has not been entirely
consistent. Compare In re Payton, 945 A.2d 279, 286 n.3 (Pa. Cmwlth.), review
denied, order aff’d, 945 A.2d 162 (2008), abrogated on other grounds by In re
Stevenson, 40 A.3d 1212 (Pa. 2012) (not striking signature lines that listed their
residences with addresses in the district even though the addresses differed from
the registration addresses); In re Nomination Petition of Brown, 846 A.2d 783, 787
(Pa. Cmwlth. 2004) (not allowing amendment to addresses listed on a nomination
petition because “to do so would be pointless” given that different addresses within
the political district has “no legal effect on the signers’ status as a qualified and
5
Pursuant to Section 414 of the Commonwealth Court Internal Operating Procedures,
unreported opinions of a panel of the Commonwealth Court, if issued after January 15, 2008,
may be cited for “persuasive value, but not as binding precedent.” 210 Pa. Code § 69.414(a).
10
registered elector”); with In re Nomination Petition of Vodvarka, 994 A.2d 25, 30
(Pa. Cmwlth. 2010) (Leavitt, J., single judge op.) (applying Flaherty’s
extraordinary circumstances test); White, slip op. at 13 (applying the
“extraordinary circumstances” test of Flaherty and holding that a recent move
within a district is an extraordinary circumstance).
Given these competing concerns, we are going to strike the following
balance which we believe is well-supported by the statutes and case law. We will
not strike a signature where the only defect is that the elector is registered at a
different address within the district than the in-district address written on the
nomination petition. The fact that an elector moves within the district without
immediately updating voter registration information, by itself, does not render the
elector unqualified to sign a nomination petition, as long as the signature is
consistent with the signature on the registration card.
C. Signature Line Challenges
With the foregoing in mind, this Court conducted an extensive line-by-line
review of all 238 challenged signature lines. In reviewing the challenges, this
Court was assisted by the testimonies of Karen J. Barsoum of Berks County
Election Services, who testified as a SURE system operator, and Objector’s expert,
William J. Ries, a forensic documents examiner who was qualified and accepted
by the parties as an expert in document examination and handwriting analysis. 6
6
Mr. Ries’ curriculum vitae was submitted into evidence as Exhibit P-1.
11
During the hearing, Candidate agreed that 106 signature lines7 were not valid
where review of the registration data showed, inter alia, that the elector was not a
registered voter in the district, the elector did not include a date of signing,8 the
elector was not registered as a Democrat, or that Candidate or a third party assisted
the elector by filing in portions of the electors’ address or date of signing.
The Court reviewed the 12 signature lines where the elector signed with one
Spanish language surname instead of the two surnames listed on their respective
voter registration cards.9 Upon thorough examination of each signature and
address, and based upon the explanation of this ruling previously set forth, the
Court concluded that it is obvious that all 12 signatures were valid. The signatories
were registered at the address on the Nomination Petition, and the signatures were
consistent. The Court also reviewed each of the 38 signature lines where the
address listed on the Nomination Petition did not match the address for the named
7
The following signature lines were struck by agreement of Candidate: page 1, lines 3,
12, 26, and 27; page 2, lines 1, 7, 16, 19, 25, and 27; page 3, lines 6, 14, 16, 26, and 28; page 4,
lines 10, 11, 20, 24, and 26; page 5, lines 6, 11, 13, 14, and 16; page 6, lines 8, 15, 18, 19, 20,
and 21; page 7, lines 2, 5, 11, 16, and 26; page 8, lines 21, and 24; page 9, lines 9, 13, and 22;
page 10, lines 7, 8, 11, 13, 16, 17, 20, 21, and 24; page 11, lines 1, 2, 4, 7, 15, 18, 20 and 27;
page 12, lines 7, 10, 14, 16, 20, 21, 23, 25, and 26; page 13, lines 1, 2, 3, 4, 5, 6, 7, 8, 15, 16, 17,
18, 19, and 20; page 14, lines 4, 5, 7, 9, 10, 13, and 14; page 15, lines 2, 3, 4, 5, 6, 9, and 11;
page 16, lines 1, 4, 5, 8, 9, 10, 11, 17, and 18; and page 17, lines 2, 5, and 8.
8
While the signature lines that included an incomplete date of signing were not struck
pursuant to In re Nomination Papers of Robertson, 55 A.3d 1044, 1045 (Pa. 2012), Candidate
conceded all signature lines where the date of signing was not added or where the elector wrote
their zip code in the box designated for the date of signing.
9
These valid signatures are found on page 1, line 15; page 2 lines 10, 11, and 28; page 4,
line 25; page 5, lines 4 and 25; page 6, line 13; page 7, line 28; page 12, lines 3, and 5; and page
14, line 2.
12
person on their respective voter registration cards. On 15 of these 38 signature
lines, the elector listed an address on the Nomination Petition within the district
that differed from the in-district address listed on their respective voter registration
cards. After review, we concluded that the 15 signatures at issue written on the
Nomination Petition were consistent with the signatures written on the voter
registration cards, and appeared to be written in the same hand. Based on the
explanation previously set forth, this Court did not strike the signatures of these 15
electors, subject to Objector’s ongoing objection.10 For the same reasons, the
Court struck the remaining 23 signature lines that were signed by individuals that
listed in-district residences that differed from the address at which they were
registered because the evidence showed that the elector was not registered in the
district at the time of signing or the signatures written on the Nomination Petition
were not consistent with the individual’s signature on their voter registration
cards.11
Objector argued that 20 signature lines on Candidate’s Nomination Petition
are invalid because the elector was not registered in the Democratic Party at the
time of signing or not registered to vote at all. Section 907 of the Election Code,
25 P.S. § 2867, states that nomination petitions must be signed by “duly registered
and enrolled members of such party who are qualified electors of the State, or of
10
These valid signatures are found on page 2, lines 3 and 9; page 3, line 2; page 5, line
10; page 6, line 24; page 7 lines 6 and 7; page 10, line 14; page 11, line 30; page 12, lines 8 and
11; page 14, line 3; page 15, lines 1 and 10; page 16 line 3.
11
These signatures are found on page 1, line 13; page 3, lines 10, 29, and 30; page 4 line
3; page 5, line 19; page 7, lines 9, 10, 15, and 20; page 8, line 11; page 9, lines 7, 14, 15, and 21;
page 11, line 8; page 12, line 26; page 13, lines 9, 10, and 11; page 14, lines 1, 8, and 12; and
page 16 line 2.
13
the political district, as the case may be.” Because the evidence showed that these
individuals were not registered voters of the Democratic Party at the time of
signing, the Court agreed with Objector and struck these 20 signatures.12
Next, Objector alleged that 5 signatures do not match the signatures found
on the voting cards. After review, the Court concluded that 3 signatures were
printed on the Nomination Petition instead of being signed and there was no
evidence that the elector intended to sign the Nomination Petition with a printed
signature.13 See Flaherty, 770 A.2d at 333 (concluding “that in stating that a
person must ‘sign’ the nomination petition, the General Assembly intended that a
person make that insignia that the person uses to represent herself, rather than print
her name”). Additionally, the Court concluded that 2 signatures bore no
resemblance to the signatures written on the voter registration cards and were,
therefore, invalid. Id.
Finally, Objector alleged that 6 signatures are invalid because the signatures
or other line information were written in the hand of another. After review, the
Court found that the signature on page 8, line 1 is written by the hand of the elector
that appears in the subsequent signature line, and concluded that this signature is
invalid. Morrison-Wesley, 946 A.2d at 796. Further, the Court found that the
12
The following signatures are stricken because the elector was not registered to vote or
registered to vote but not affiliated with the Democratic Party: page 1, lines 13 and 16; page 2
lines 4, 13, 17, 18, 23; page 3, line 11; page 4, lines 8, 17, and 18; page 5, lines 26 and 27; page
6, line 29; page 7, lines 18, 21, and 23; page 9, line 24; page 11, line 17; and page 12, line 12.
13
These signatures lines include page 4, line 13; page 5, line 20; and page 9, line 5.
14
addresses in 5 signature lines were written by someone other than the signer.14 We
were therefore compelled to strike these 5 signature lines. In re Silcox, 674 A.2d
224, 225 (Pa. 1996).
III. CONCLUSION
In sum, Candidate agreed that 106 signature lines should be stricken and the
Court struck an additional 54 signature lines, leaving Candidate with 269
signatures on his Nomination Petition. Because Candidate’s Nomination Petition
contains less than 300 valid signatures as required by Section 912.1(14) of the
Election Code, this Court grants the Petition to Set Aside.15
RENÉE COHN JUBELIRER, Judge
14
The Court’s finding in this regard includes the address information on page 4, lines 5,
14, and 28; page 5, line 18; and page 7, line 22.
15
Because we conclude that Candidate has not submitted the required 300 signatures, we
need not address the issues raised in Counts II and III of the Petition to Set Aside.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Nomination Petitions of :
Mallory B. Scott, Candidate in the :
Democratic Primary for the : No. 164 M.D. 2016
127th State Legislative District :
:
Petition of: Thomas R. Caltagirone :
ORDER
NOW, March 23, 2016, after hearing, the “Petition to Set Aside Nomination
Petitions of Mallory Scott, Candidate in the Democratic Primary for the 127th State
Legislative District” in the above-captioned matter is GRANTED. The Secretary
of the Commonwealth is directed to remove the name of Mallory B. Scott as a
Candidate for the Democratic Nomination for the Office of Representative in the
General Assembly for the 127th Legislative District from the April 26, 2016
General Primary Election ballot. The Chief Clerk is directed to send a copy of this
Order to the Secretary of the Commonwealth. The parties shall bear their own
costs.
RENÉE COHN JUBELIRER, Judge