In Re: The Nomination Petitions of Daniel B. Smith, Jr. as a Democratic Candidate for State Representative in the 12th Legislative District Petition of: R. Mahmood and K.R. Costello

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: The Nomination Petitions of :
Daniel B. Smith, Jr. as a Democratic :
Candidate for State Representative :
in the 12th Legislative District : No. 138 M.D. 2018
:
Petition of: Rizwan Mahmood and : Heard: March 22, 2018
Kevin R. Costello :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION BY
JUDGE McCULLOUGH FILED: March 29, 2018
Before the Court is the Petition to Set Aside the Nomination Petition of
Daniel B. Smith, Jr. (Candidate) as a Democratic Candidate for the Office of
Representative in the General Assembly in the 12th Legislative District in the Primary
Election to be held on May 15, 2018. On March 12, 2018, Rizwan Mahmood and
Kevin R. Costello (Objectors) filed the Petition to Set Aside in this Court.
Pursuant to section 912.1(14) of the Pennsylvania Election Code (Election
Code),1 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. 25 P.S. §2872.1(14). In their Petition to Set Aside, Objectors
seek to invalidate a number of the 338 signatures contained in Candidate’s nomination
petition. Specifically, Objectors challenged a total of 46 signatures, which include 32
1
Act of June 3, 1937, P.L. 1333, added by the Act of December 12, 1984, P.L. 968, as
amended.
individual signatures and a global challenge with respect to pages 4 and 7 of the
Nomination Petition, concerning 14 signatures. The global challenge alleged that the
circulator of those pages was a registered voter of the Republican party and could,
therefore, not obtain signatures for a Democratic nominee.
On March 14, 2018, this Court entered a Scheduling and Case
Management Order scheduling a hearing on the Petition to Set Aside for March 22,
2018, at 1:00 p.m., and imposing certain duties and obligations upon Objectors and
Candidate. Therein: (1) Objectors were ordered to secure the services of a court
stenographer for the hearing and, if signatures were challenged, to secure the presence
of a SURE system2 operator (Operator) for the hearing; (2) Objectors were ordered to
personally serve Candidate or an adult member of Candidate’s family, on or before
5:00 p.m. on March 19, 2018, with a copy of the order, the Petition to Set Aside, and
one digital media device containing the objections and to file proof of service in this
Court; (3) Objectors and Candidate were ordered to file a list of all witnesses intended
to testify at the hearing; (4) Objectors were ordered to immediately arrange to meet
with Candidate or his representative and a SURE system operator, if necessary, to
review before the hearing each and every challenged signature; (5) Objectors and
Candidate were ordered to file a stipulation of the parties identifying the total number
of completed signatures submitted; the total number of uncontested signatures
submitted; the total number of signatures challenged; each and every signatures
challenged, identified by page number and line number, and the basis for the objection;
and each and every signature to be stricken as invalid or for which an objection is to be
2
As this Court has previously noted, “[t]he SURE system is the Statewide Uniform Registry
of Electors, the statewide database of voter registration maintained by the Department of State and
administered by each county.” In re Nomination Petition of Morrison-Wesley, 946 A.2d 789, 792-93
n.4 (Pa. Cmwlth.), aff’d, 944 A.2d 78 (Pa. 2008).
2
withdrawn, identified by page number and line number, if the parties reach such a
stipulation; (6) Candidate was ordered to file a list of all signatures, identified by page
number and line number, that were facially defective and that he intended to
rehabilitate, also stating the manner in which he intended to rehabilitate them; and (7)
Objectors and Candidate were ordered to file all of the foregoing items with this Court
no later than 12:00 noon on March 21, 2018. The Scheduling and Case Management
Order also stated that a party’s failure to comply with any provision of the order may
preclude the noncompliant party from presenting evidence and could result in the
imposition of monetary sanctions.
As of the March 21, 2018 deadline, there were 14 signature lines subject
to a global challenge, and 32 individual signature line challenges. While neither party
technically complied with this Court’s March 14, 2018 Scheduling and Case
Management Order, both Objectors and Candidate filed pre-trial statements on March
21, 2018. These pre-trial statements revealed that the parties had agreed that 20 of the
32 individual signature line challenges were invalid and should be stricken, leaving
only 12 signatures in dispute in that category. Candidate advised that he would present
affidavits and/or live witness testimony to rehabilitate these signatures, while Objectors
would rely on the SURE system operator to support their challenges. Both parties
agreed that the global challenge (involving 14 signatures) represented a legal issue that
would need to be decided by the Court.
On March 22, 2018, the Court conducted a hearing on Objector’s Petition
to Set Aside. Because the parties had not filed a stipulation prior to the hearing, the
3
parties read into the record the 20 signature lines that they stipulated were invalid.3
This left candidate with 318 signatures, 26 of which were in dispute.4 During the
course of the hearing, the Court considered the 12 remaining challenges to individual
signature lines5 and heard oral argument regarding the global challenge to 14
signatures.
Global Challenge
We first address the issue of whether Section 909(a) of the Election Code,
25 P.S. §2869(a), violates the First Amendment of the United States Constitution.6
Section 909(a) of the Election Code states that the circulator’s affidavit
must indicate that the circulator is “registered as a member of the designated party of
the” candidate. 25 P.S. §2869(a). Objectors argue that 14 signatures should be
stricken, specifically the 8 signatures that appear on page 4 and the 6 signatures on
page 7, because the circulator was a registered Republican circulating a nomination
petition for the Democratic candidate. In De La Fuente v. Cortes, 261 F. Supp. 3d 543(M.D. Pa. 2017), a federal district court concluded that, to the extent the circulator is
registered with a party that is not the same as that of the candidate, the restriction
3
Page 1, lines 20, 24, 26, 27, 30; page 2, line 11; page 3, lines 1, 11; page 6, line 22; page 10,
line 12; page 11, line 14; page 12, lines 23, 28; page 13, lines 8, 20; page 14, line 10; page 15, line
11; page 16, lines 2, 23; and page 17, line 22.
4
Of the remaining 26 signatures in dispute, 12 signatures were subject to individual
challenges, and 14 signatures were subject to a global challenge.
5
Page 3, line 17; page 5, line 1; page 9, lines 1, 2, 3; page 12, line 16; page 13, line 9; page
16, line 11; page 17, lines 12, 19; and page 18, lines 2, 5.
6
U.S. CONST. amend. 1.
4
imposed by section 909(a) did not contravene the rights of free speech and association
under the First Amendment of the United States Constitution.
In response, Candidate relies on the decision rendered by the federal
district court in Morrill v. Weaver, 224 F. Supp. 2d 882 (E.D. Pa. 2002), as endorsed
by our Supreme Court in In re Stevenson, 40 A.3d 1212 (Pa. 2012), along with our
decision in In re Gordon, 143 A.3d 612 (Pa. Cmwlth.), aff’d per curiam, 134 A.3d
1043 (Pa. 2016). He contends that these cases compel the conclusion that section
909(a) violates the First Amendment.
By their very nature, all election laws impose at least some burden on the
expressive and associational rights protected by the First Amendment. Burdick v.
Takushi, 504 U.S. 428, 433 (1992). To determine whether a particular burden violates
the Constitution, and level of scrutiny to be applied, a court “must weigh the character
and magnitude of the asserted injury to the rights protected” by the First Amendment
against “the precise interests put forward by the State as justifications for the burden.”
Id. at 434. When an election law imposes a “severe” burden on First Amendment
rights, it is subject to strict scrutiny and must be “narrowly drawn to advance a state
interest of compelling importance.” Id. If the law inflicts only a “reasonable,
nondiscriminatory” burden, “the State’s important regulatory interests are generally
sufficient to justify” the restriction. Id. In cases where there is no burden, or the burden
is only trivial, the State need only prove that a legitimate interest is advanced by the
law and that the law bears a rational relationship to that interest. Republican Party of
Pennsylvania v. Cortes, 218 F. Supp. 3d 396, 408 (E.D. Pa. 2016) (collecting cases);
see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 362-63 (1997).
As a starting point, both parties focus their discussion on Buckley v.
American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), and contest
5
whether the holding in that case can be extended to invalidate the party-line
requirement in section 909(a).
In Buckley, the United States Supreme Court analyzed a Colorado statue
that required the circulators of “initiative-petitions” to be registered voters. Pursuant
to Colorado’s constitution, citizens are vested with the authority to make a law directly
through an initiative that is placed on an election ballot,7 and proponents of the
initiative circulate petitions collecting signatures with the goal of obtaining enough
signatures that the initiative makes it onto the ballot. The Court held that this type of
petition circulation constitutes “core political speech” because it involves “interactive
communication concerning political change.” 525 U.S. 186-87. Applying what
appears to be a form of strict scrutiny, the Court in Buckley struck down the registration
requirement, reasoning that the statute “drastically reduces the number of persons” that
are “available to circulate petitions,” id. at 193, and does so “without impelling cause,”
id. at 197.
In Morrill, Green Party candidates and activists filed suit in a
Pennsylvania federal district court requesting a preliminary injunction restraining
enforcement of two requirements in section 251(d) of the Election Code, 25 P.S.
§2911(d). This section states, in pertinent part, that circulators must be “qualified
electors of the electoral district” in which the candidate is running, id., and the Green
7
By way of background, “in U.S. politics, the terms initiative and referendum refer to
processes that allow citizens of many states to vote directly on particular pieces of legislation. An
initiative process allows citizens to propose or initiate a statute or constitutional amendment. Citizens
initiating such legislation are known as the measure's proponents. The referendum process allows
citizens to refer a statute passed by the legislature to the ballot so that voters can enact or repeal the
measure. Once enough signatures are gathered on petitions, the law is usually stayed, or stopped from
going into effect, until the voters have decided the question.” Initiative and Referandum,
BALLOTPEDIA, https://ballotpedia.org/Initiative_and_referendum (last visited March 28, 2018).
6
Party plaintiffs contended that the registration requirement (“qualified elector”) and the
in-district requirement (“of the electoral district”) violated the First Amendment. The
federal district court agreed, concluding that both conditions “unconstitutionally
restrain the freedom of political expression and association of the plaintiff candidates
and activists.” Morrill, 224 F. Supp. 2d at 885.
At the outset, the court in Morrill noted that under the Pennsylvania
Election Code,8 the Green Party is considered a minor political party and does not hold
primary elections like the Democrat and Republican parties. Instead, the only way a
Green Party candidate can secure a spot on the ballot is when the candidate obtains the
requisite number of signatures on nomination papers, which is statutorily designated as
an amount equivalent to two percent of the largest number of votes cast for any elected
candidate or official in the previous election.
With respect to the registration requirement, the court applied Buckley and
determined that “the statute’s registration requirement limits the number of voices who
will convey the Green Party message and cuts down the size of the audience its
proponents can reach,” id. at 898, having the effect of eliminating almost 4 million
Pennsylvania citizens who are un-registered to vote. From this observation, the court
concluded that requiring circulators to “be registered voters would impose a severe
burden on Plaintiffs’ and other Pennsylvania citizens’ constitutional freedoms,” and
found that “the Commonwealth has presented no compelling or sufficient reason to
justify the burdensome registration requirement.” Id. at 900. In order to give the phrase
“qualified electors” a constitutional construction, the Morrill court interpreted it to
mean that a circulator does not need to be a registered voter. The court determined that
if it rendered a contrary interpretation, “then strict scrutiny of the statute reveals that it
8
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
7
is not narrowly-tailored to meet a compelling government interest, it unconstitutionally
burdens core First Amendment rights of freedom of expression and association, and it
must be struck down.” Id.
Reviewing the in-residency requirement, the court in Morrill turned to the
decisions of other federal courts that have addressed the constitutionality of state
statutes imposing residency requirements on petition circulators and petition affiants.
Relying most predominately on the Second Circuit’s decision in Lerman v. Board of
Elections in the City of New York, 232 F.3d 135 (2d Cir. 2000), the court concluded:
“Green Party candidates and activists from around Pennsylvania have their freedoms
of political expression and association sharply curtailed, because they are prohibited
from being affiants to nominating petitions for many candidates they support who
happen to be running outside the districts in which they reside.” Morrill, 224 F. Supp.
2d at 901-02. The court then surveyed and assessed the Commonwealth’s stated
justifications for the statute and determined that the in-district residency requirement
“severely burdens [p]laintiffs’ and others’ protected First Amendment rights of free
political expression and association” and “the Commonwealth has articulated no
significant interest . . . which could not be served by any number of much less-
restrictive policies.” Morrill, 224 F. Supp. 2d at 885. Because the in-residency
requirement “is not narrowly-tailored to serve a compelling State interest,” the court
declared that it was invalid under the First Amendment. Id. Accordingly, the court in
Morrill entered a permanent injunction prohibiting the Commonwealth from enforcing
the registration and in-district requirements of section 251(d).
In In re Stevenson, a case in which an independent candidate for the Office
of State Representative filed nomination papers, this Court struck the signatures that
were obtained by a circulator who did not reside in the same district as the candidate.
8
On appeal, our Supreme Court reversed. Although recognizing that the courts of this
Commonwealth are not bound to follow the decisions of federal appellate and district
courts, our Supreme Court concluded that the judgment and permanent injunction
issued by the court in Morrill against the Commonwealth was entitled to preclusive
effect and, for all practical purposes, constitutes binding authority. In a footnote, the
Stevenson Court emphasized that its decision rested solely on principles of full faith
and credit, respecting the final and conclusive judgment of a federal court, and
expressly stated that it was not offering an “opinion on the merits of the Morrill court’s
analysis of the First Amendment claim.” In re Stevenson, 40 A.3d at 1225 n.12.
Later, in a single-judge reported opinion from this Court, In re Gordon,
the judge denied the petition to set aside the nomination petition of a candidate for the
Democratic Party Nomination for Representative in the United States Congress.9 In
doing so, the judge, by way of a brief explanation, stated that she “rejected, “based on
[Buckley], [Morrill], and [In re Stevenson], the challenges to . . . circulator not
registered to vote[,] circulated registered outside the District[,] and circulator not
registered at address.” 141 A.3d at 613. Candidate argues that In re Gordon, expanded
the holdings in Morrill and In re Stevenson, both of which dealt with the registration
and address requirements of circulators of nomination papers of Green Party and
Independent Party candidates that do not participate in a primary election, to the
nomination petitions filed by the candidates of major political parties desiring to make
it to the primary election.
Candidate argues that given this case law, if “a circulator can be a person
who is not registered to vote at all, there is no logic for preventing a registered voter,
9
“A reported opinion of a single judge . . . in an election law matter may be cited as binding
precedent in an election law matter only.” Section 414(d) of the Commonwealth Court Internal
Operating Procedures, 210 Pa. Code §69.414(d).
9
who happens to not be registered as a Democrat, to circulate a Democratic petition.”
(Mem. Law at 3.) Candidate asserts that, when it comes to the political affiliation of a
petition circulator, the Commonwealth does not have a sufficient interest in
maintaining a line of party division and prohibiting an individual who is registered as
a Republican from serving as a circulator for a candidate that is a Democrat.
The Court disagrees. In the situation where a would-be circulator is
registered with a political party that is different from the political party of which the
candidate is seeking nomination, the First Amendment rights to free speech and
association are circumscribed by the countervailing First Amendment right of the
political party to exclude the would-be circulator from its association. See Tashjian v.
Republican Party of Connecticut, 479 U.S. 208, 215 n.6 (1986) (referencing cases
where the United States Supreme Court “considered claims by nonmembers of a party
seeking to vote in that party’s primary despite the party’s opposition,” stating that in
this “class of cases, the nonmember’s desire to participate in the party’s affairs is
overborne by the countervailing and legitimate right of the party to determine its own
membership qualifications,” and finding that an “analytically distinct” situation occurs
“when there is no conflict between the associational interests of members and
nonmembers.”); see also Clingman v. Beaver, 544 U.S. 581, 588-89 (2005) (plurality)
(holding that a state’s “semiclosed primary system,” which did not allow party
members to vote in another party’s primary, imposed only a minor burden on
associational rights and did not run afoul of the First Amendment, and stating “[T]he
Republican and Democratic voters who have brought this action do not want to
associate with the [Libertarian Party], at least not in any formal sense. They wish to
remain registered with the Republican, Democratic, or Reform parties, and yet to assist
in selecting the Libertarian Party’s candidates for the general election . . . . However, a
10
voter who is unwilling to disaffiliate from another party to vote in the [Libertarian]
primary forms little ‘association’ with the [Libertarian Party]—nor the [Libertarian
Party] with him.”); California Democratic Party v. Jones, 530 U.S. 567, 577 (2000)
(concluding that a state law violated the political association’s right to exclude because
the law “force[d] political parties to associate with—to have their nominees, and hence
their positions, determined by—those who, at best, have refused to affiliate with the
party, and, at worst, have expressly affiliated with a rival”).
In De La Fuente, a federal district court concluded that the registered
party-line restriction contained in section 909(a) was constitutional under Buckley. In
doing so, the court essentially adopted the reasoning of the Second Circuit in Maslow
v. Board of Elections in City of New York, 658 F.3d 291 (2d Cir. 2011). In that case,
the Second Circuit addressed a statutory provision nearly identical to section 909(a),
dubbed the “Party Witness Rule,” distinguished Buckley and its previous decision in
Lerman (which was a major basis for the Morrill court’s declaration that the in-district
residence requirement was unconstitutional), and concluded that the Rule was
constitutional under the First Amendment.
Embodied in the statutory law of the State of New York, the Party Witness
Rule restricts circulators to “enrolled voter[s] of the same political party as the voters
qualified to sign the petition,” i.e., “the party in whose primary the candidate seeks to
run.” 658 F.3d at 294 (citation omitted). Notably, the Second Circuit in Maslow
observed that the state legislature “enacted the Party Witness Rule in the early 1950s,
apparently in response to incidents of ‘party raiding,’ whereby members of one party
would actively participate in the primary of a rival party in the hope of influencing that
party’s candidate nomination and thus improving their own chances in the general
election.” Id.11
In Maslow, a civil rights action was filed by candidates for the Democratic
Party who wanted to use as circulators who were not registered as Democrats, and also
by circulators who collected signatures that were invalidated under the Party Witness
Rule because they were not registered in the same party as the candidates. Citing a
long line of Supreme Court precedent emphasizing “that the First Amendment
guarantees a political party great leeway in governing its own affairs,” the Maslow
court concluded that “a political party’s associational right to exclude forecloses the
possibility that non-members have an independent First Amendment right to participate
in party affairs.” 658 F.3d at 294 (internal quotation marks and citations omitted).
Based upon the case law from the United States Supreme Court, the Second Circuit
deduced that it was “clear” that “the First Amendment affords political parties an
autonomy that encompasses the right to exclude non-members from party functions,
and in no area is the political association’s right to exclude more important than in the
process of selecting its nominee.” Id. at 296. To bolster its conclusion, the Second
Circuit quoted the pithy and unequivocal words of Justice Scalia, writing for a majority
of the United States Supreme Court in Jones: “As for the associational ‘interest’ in
selecting the candidate of a group to which one does not belong, that falls far short of
a constitutional right, if indeed it can even fairly be characterized as an interest.” 658
F.3d at 296-7 (quoting Jones, 530 U.S. at 595 n.5.)
On this foundation, the Second Circuit framed the rationale for its holding
as follows:
The Party Witness Rule imposes little or no burden on
[p]laintiffs’ First Amendment rights. Although [p]laintiffs
claim that the Rule operates as a restraint on political speech,
at bottom they assert an associational right to have non-party
members participate in party primary elections. Because
political parties have a strong associational right to exclude
non-members from their candidate nomination process,
12
[p]laintiffs have no constitutional right pursuant to which
such participation may be effected.
658 F.3d at 296.
The court then concluded:
As [p]laintiffs have not demonstrated any non-trivial burden
to their First Amendment rights, we need not closely analyze
New York’s justification for the Party Witness Rule. We
only note that the State has a legitimate interest in protecting
its political parties from party raiding, see [Rosario v.
Rockefeller, 410 U.S. 752, 760-62 (1973)], which was clearly
contemplated by members of the State Legislature when the
Rule was adopted. The Party Witness Rule helps combat
party raiding by denying hostile non-party elements access
to one part of a political party’s nomination process.
Id. at 298.
In reaching this conclusion, the court in Maslow rejected the plaintiffs’
argument that the party membership restriction overly burdened the plaintiffs’ right to
engage in political speech through the circulation of petitions. While noting that the
decisions in Buckley and Lerman “recognize petition circulating as a form of highly
protected political speech,” the Second Circuit distinguished those cases, explaining:
“[T]he [p]laintiffs are only restrained from engaging in speech that is inseparably
bound up with the [circulator] plaintiffs’ association with a political party to which they
do not belong. As plaintiffs have no right to this association, they have no right to
engage in any speech collateral to it.” Id. at 298 (citation omitted). In addition, the
Second Circuit proclaimed that its decision was consistent with Lerman, stating: “The
subscribing witness residency requirement at issue in [Lerman] was as much of an
impediment to the exercise of political parties’ associational rights as it was to the
exercise of the individual candidates’ rights. In other words, the associational rights of
the candidates and the parties were aligned.” Id. at 297 n.4.
13
In De La Fuente, the plaintiff was a candidate in the 2016 election for
President of the United States, seeking the Democratic nomination during the primary,
and registered Republicans were prevented from circulating his nomination petitions
pursuant to section 909(a). The plaintiff filed a civil rights complaint, contending that
section 909(a) transgressed the rights of the First Amendment. Following the reasoning
of the court in Maslow, the Pennsylvania federal district court in De La Fuente
distinguished Buckley and rejected the argument that the section 909(a) constituted a
severe burden on core political speech. In upholding the constitutionality of section
909(a), the court stressed that the First Amendment guarantees “the freedom to identify
the people who constitute the association, and to limit the association to those people
only,” and reiterated that “a corollary of the right to associate is the right not to
associate.” 261 F. Supp. 3d at 554 (quoting Jones, 530 U.S. at 574).
The court then added:
[T]he petitions being circulated in Buckley were ballot
initiative petitions intended to be an alternative method of
law-making, not petitions for the selection of party nominees,
as in the present matter. We cannot overlook the important
associational rights inherent to the nomination process. The
Supreme Court has noted that “the associational ‘interest’ in
selecting the candidate of a group to which one does not
belong . . . falls far short of a constitutional right, if indeed it
can even fairly be characterized as an interest.” [Jones, 530
U.S. at 595 n.5.]
Plaintiff’s Complaint indicates that he wanted Republicans
to be permitted to circulate petitions for his nomination as the
Democratic candidate. To the extent that [section 908(a)]
reflect[s] the self-selected associational limitations of the
Republican and Democratic parties, [it is] constitutional.
Plaintiff has not pled any facts suggesting that Pennsylvania
has interfered with the associational wishes of either party.
14
261 F. Supp. 3d at 555. On these bases, the court in De La Fuente dismissed the
plaintiff’s First Amendment claim for failing to plead sufficient facts to state a cause
of action.
Upon review, the Court finds the reasoning of the courts in Maslow and
De La Fuente persuasive and sufficient to provide the sturdy grounds and “logic” that
Candidate maintains is necessary to differentiate this case from Morrill and In re
Gordon.
Initially, the Court assumes, without deciding, that the courts in Morrill
and In re Gordon correctly concluded that unregistered voters who seek to be
circulators, and the parties for which they seek to circulate, have a First Amendment
right to enter into political association and that circulation of nomination petitions in
this context is core political speech subject to strict scrutiny. However, when a would-
be circulator is not registered to vote, the would-be circulator has not “affiliated” with
any particular party for purposes of election law. To ensure that these individuals are
not excluded entirely from electoral participation, it makes sense that the First
Amendment would allow them to contribute in the nomination process as a circulator
for a candidate of one party. See also City of Mobile v. Bolden, 446 U.S. 55, 77 (1980)
(recognizing the constitutional right “to equal participation in the electoral process”).
In other words, because the would-be circulator is not registered to vote, the would-be
circulator has not yet formally exercised the fundamental right to associate with the
political party of his or her choice, see Kusper v. Pontikes, 414 U.S. 51, 57 (1973), and
the political party, in these circumstances, is exercising its right of association by
expanding its base to include individuals who have not made a commitment to a
specific political party and may end up registering with the party, see Tashjian, 479
U.S. at 214. In short, when the unregistered voter circulates a nomination petition for
15
a party, the circulator and the party do not have a conflict of associational interests.
When a registered voter resides outside of the district in which the candidate is running
for office, and both are registered with the same party, the associational interest are in
unison.
But this legal issue is entirely different, and takes on a new dimension,
when an individual is registered to vote and is “affiliated” with a specific party, but
desires to circulate a nomination petition for a candidate that belongs to a different
party. In this scenario, the associational interests of the circulator and the party are not
aligned, but, rather, stand in contradiction. It is at this point that the case law governing
the associational rights of the Republican and Democratic parties to exclude the other
party’s members from participating in the nomination process is squarely applicable
and greatly diminishes, if not evaporates, the free speech rights of the would-be
circulator. Pursuant to the statute and case law, the entire group of potential circulators
for Candidate consists of all individuals who are registered to vote as Democrats, even
if they reside outside of the boundaries of the candidate’s geographic district, and also
any individual who is unregistered to vote. Nonetheless, Candidate asserts that section
909(a) limits the number of potential circulators for Democrats by eliminating those
individuals who are registered to vote as a Republican. This fact, however, is legally
immaterial. Neither Buckley, Morrill, nor In re Gordon mandate, let alone remotely
suggest, that the First Amendment dictates their inclusion, while Maslow, De La
Fuente, and an entire body of precedent from the United States Supreme Court uphold
and, in some instances, command their exclusion.
Adhering to the decisions in Maslow and De La Fuente, the Court
concludes that section 909(a) imposes only a trivial burden upon Candidate’s or the
circulator’s First Amendment rights of free speech and association. This slight impact
16
on the First Amendment, in turn, is justified by the Commonwealth’s legitimate interest
in preventing party raiding, as that concept is described and discussed by the court in
Maslow, and the Commonwealth’s legitimate interest in retaining the importance of
party affiliation and cohesion. See Clingman, 544 U.S. at 595-96 (stating that the State
has legitimate interests “in preventing party raiding” and in “retaining the importance
of party affiliation,” which “aids in parties’ electioneering and party-building efforts”).
As an aside, if the Court were to hold otherwise, and conclude that section 909(a) is
unconstitutional, then a circulator registered as a Republican could conceivably
circulate petitions for both the Republican and Democratic Parties during the same
election cycle, thereby creating the potential for voter confusion while undermining the
Commonwealth’s compelling interest in maintaining the cohesion of political parties.
See also Citizens for John W. Moore Party v. Board of Election Commissioners of the
City of Chicago, 794 F.2d 1254, 1260-61 (7th Cir. 1986) (finding that the State has a
“compelling” interest in a rule that “promotes the cohesion of political parties” and
expounding: “Circulators engage in personal, often high-pressure, solicitation. There
is always some potential for deceit; there is also a potential for confusion if a circulator
identified as the agent of one party suddenly solicits signatures for another party or an
independent candidate.”)
Therefore, the Court concludes that the same-party requirement of section
909(a) is constitutional under the First Amendment. As such, the 14 signatures
obtained by a registered Republican circulator for Candidate, who is seeking the
Democratic Nomination for Office of State Representative, must be stricken pursuant
to the plain language of Section 909(a).
After striking these 14 signatures, Candidate is left with 304 signatures.
17
Individual Line Challenges
We now proceed to the Objectors’ individual line challenges to the
nomination petition. The Election Code should be construed liberally “so as to not
deprive an individual of his right to run for office, or the voters of their right to elect a
candidate of their choice.” Ross Nomination Petition, 190 A.2d 719, 720 (Pa. Cmwlth.
1963). 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), appeal denied, 819 A.2d
548 (Pa. 2003). Furthermore, nomination petitions are presumed to be valid, and
objectors bear the heavy burden of proving that a candidate’s nomination petition is
invalid. In re Nomination Petition of Shimkus, 946 A.2d 139, 141 (Pa. Cmwlth. 2008).
Where this Court is not convinced that challenged signatures are other
than genuine, the challenge is to be resolved in favor of the candidate. In re Nomination
of Flaherty, 770 A.2d 327, 331 (Pa. 2001). However, we are mindful that we must
strike a balance between the liberal purposes of the Election Code and the provisions
of the Election Code relating to nominating petitions that are necessary to prevent fraud
and to preserve the integrity of the election process. Shimkus, 946 A.2d at 154. This
Court is “[e]ntrusted 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.), aff’d, 430 A.2d
1155 (Pa. 1981). The Supreme Court may reverse our 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 Nader, 858 A.2d 1167, 1177 (Pa. 2004).
In support of the stated objections, both Objectors and Candidate
presented the sworn testimony of Shari A. Brewer, the Director of the Butler County
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Bureau of Elections and a SURE systems operator (Operator). During Operator’s
testimony, she accessed the voter registration record of the signatures challenged by
Objectors in the SURE system and projected them onto a screen for examination by
the Court and the parties. Candidate testified on his own behalf and also attempted to
rehabilitate numerous signatures with elector affidavits.
We begin by noting that, during the course of the hearing, Objectors
withdrew three challenges to individual signatures after Operator accessed each
signer’s voter registration record to verify that each was a registered member of the
Democratic party, and reside at an address located in the 12th Legislative District and
that each signer’s signature matched the signature appearing on the relevant registration
card. As a result, the Court found the signatures appearing at page 3, line 17; page 5,
line 1; and page 17, line 19, to be valid, still leaving Candidate with 304 valid signatures
and 9 line challenges remaining.
Objectors then challenged the signatures appearing at page 9, lines 1, 2
and 3, on the basis that each signature was dated February 12, 2018—one day prior to
the opening of the petition period. To rehabilitate those signatures, Candidate testified
on his own behalf, representing that he was present, as the circulator, when the three
individuals signed the petition, and that he obtained the signatures on the evening of
Saturday, February 17, 2018, at a fundraising event held at Quality Gardens.
(Candidate’s Exhibit No 1.) Candidate also presented notarized affidavits of the
individuals whose signatures appear at page 9, lines 1 and 3. (Candidate’s Exhibit Nos.
2, 3.) The affidavits specified the date on which each individual signed the petition,
February 17, 2018, and averred that each individual mistakenly dated his/her signature
as February 12, 2018.
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Objectors lodged an objection to the admission of the affidavits on the
basis that they were impermissible hearsay. In response, with respect to each affidavit,
Candidate credibly testified that he personally spoke to each signatory, explained the
facial defect related to his or her signature on the petition, asked each elector if he or
she would sign the affidavit to cure the facial defect, and witnessed the completion of
the affidavit by each individual.
Section 977 of the Election Code provides in relevant part that “material
errors or defects apparent on the face of the nomination petition” are amendable, after
hearing, at the discretion of the court. 25 P.S. §2937; In re Nomination of Delle Donne,
779 A.2d 1, 6 (Pa. Cmwlth.), aff’d, 777 A.2d 412 (Pa. 2001). In the case of In re
Nomination Petition of Vodvarka, 994 A.2d 25 (Pa. Cmwlth. 2010), this Court accepted
rehabilitation evidence in the form of affidavits to overcome facial challenges to six
signatures where the objections were based on missing information, specifically, the
date of signature. In the affidavits, the signing electors stated that they had erroneously
written a zip code instead of a date and provided the date on which they had signed the
nomination petition.
In the present case, each affidavit submitted by Candidate includes not
only the information upon which the challenge is based, but also the entirety of the
information required by the Election Code. As previously noted, Candidate credibly
testified that he presented each affidavit to the elector who signed it and witnessed each
signature. Because the affidavits were corroborated by Candidate’s testimony, and in
keeping with the purpose of the Election Code, the Court overruled the objections, and
found the three signatures appearing at page 9, lines 1, 2, and 3, to be valid. See In Re
Nomination Petition of Kristofer J. Wiegand, (Pa. Cmwlth., No. 165 M.D. 2014, filed
April 15, 2014) (unreported), slip op. at 9-10 (rejecting hearsay challenge to an
20
elector’s affidavit where the information in the affidavit was sufficient to rehabilitate
the amendable error and was corroborated with other evidence).10 Thus, Candidate
maintained 304 valid signatures and 6 signature challenges remained.
Next, Objectors challenged two individual signatures (page 16, line 11;
page 17, line 12) on the basis that the signers were not registered voters at the time they
signed the petition. With respect to these signatures, Operator attempted to locate each
signer’s voter registration card, but was unsuccessful. Operator also searched for those
voter registration cards using the addresses listed on the petition, but the results showed
that, in each instance, the signer did not reside at the stated address. Candidate offered
no other evidence to rehabilitate the signatures. Therefore, the Court sustained
Objectors’ challenge and found the signatures appearing at page 16, line 11, and page
17, line 12, to be invalid. Candidate now maintained 302 valid signatures, with 4
signature challenges remaining.
Also, Objectors challenged the validity of the signature at page 18, line 2,
on the basis that the signer was not a registered voter in the 12th Legislative District.
As explained above, section 908 of the Election Code requires that each signer be a
registered voter in the relevant district at the time the nomination petition is signed. Id.In an attempt to rehabilitate this signature, Candidate presented the affidavit of the
signer. However, he offered no evidence to corroborate the affidavit, or to otherwise
10
Candidate testified that he was unable to obtain an affidavit signed by the elector whose
signature appears at page 9, line 2. However, Candidate credibly testified that this signer executed
the petition as the same time as the other two electors from whom affidavits were obtained. We
concluded that the signature at page 9, line, 2 was valid because the fact that it was situated between
the other two challenged signatures obtained on a single date supports a common sense deduction that
the challenged signature also occurred on the same date and under the same circumstances. See In re
Nomination Papers of Robertson, 55 A.3d 1044, 1044 (Pa. 2012) (“[T]he interspersal of the
challenged signatures among others dated in 2012 supports a common sense deduction that the
challenged signatures also occurred in that year and negates any concern that the omissions call into
question the identity of the signatory or compromise the integrity of the election process.”)
21
rehabilitate the defective signature. In fact, Candidate’s testimony brought to light a
second basis upon which Objectors could challenge the signature: Candidate testified
that, because the signer was on a business call at the time Candidate visited his
residence, signer’s wife completed the information listed on the petition on his behalf.
Candidate presented no evidence to rehabilitate either that deficiency or the deficiency
raised by Objectors’ initial challenge. Thus, because the signer was not a registered
and enrolled member of the Democratic party in the 12th Legislative District at the
time he signed Candidate’s nomination petition, and because signer did not complete
the petition on his own behalf, the signature appearing at page 18, line 2, was stricken
as invalid. Candidate now maintained 301 valid signatures and 3 signature challenges
remained.
Next, Objectors challenged the validity of the signature at page 12, line
16, on the basis that line information was omitted (LIO). The elector who signed
Candidate’s petition at page 12, line 16 did not include the date on which he executed
his signature. Section 908 of the Election Code provides that “[e]ach signer of a
nomination petition . . . shall add his residence, giving city, borough or township, with
street number, if any . . . and the date of the signing, express in words or numbers.” 25
P.S. §2868. The omission of any part of this required information is a basis for finding
the signature invalid. In re Nomination Petition of Silcox, 674 A.2d 224 (Pa. 1996).
In response to the challenge, Candidate testified as the circulator of the
petition, representing that he visited the signer’s residence on February 26, 2018, and
that the signer’s wife also signed the petition during the same visit (at page 12, line 15).
Candidate also presented the affidavits of the signer and his wife. (Candidate’s Exhibit
Nos. 4, 5.) The affidavit of signer’s wife affirmed that it is her signature that appears
on Candidate’s petition at page 12, line 15, below the signature of her husband; that
22
she signed the petition on February 26, 2018; that her address is correct; and that she
mistakenly wrote her zip code in the space where the date should have been written.
(Candidate’s Exhibit No. 4.) The signer’s affidavit represented that he was a registered
Democratic elector who signed Candidate’s petition at page 12, line 15, and was
present when his wife signed the same petition at page 12, line 16. (Candidate’s Exhibit
No. 5.) Because Candidate’s testimony corroborated the information contained in the
affidavits, the Court admitted the affidavits into evidence, and found the signature at
page 12, line 16 to be valid. This maintained the total number of valid signatures
appearing on Candidate’s nominating petitions at 301, with 2 remaining challenges to
individual signatures.
Objector challenged the signature at page 18, line 5, on the basis that the
signer was not a registered voter at the time she signed the petition. Operator
successfully located the elector’s voter registration card. The registration card
confirmed that the signer was a registered Democrat residing in the 12th Legislative
District at the time she signed Candidate’s petition. Objectors conceded their challenge
regarding the voter’s registration. However, at the hearing, Objectors asked to view
the signature on the registration card to compare it to the signature appearing on the
petition. After comparing the signatures, Objectors amended their challenge to assert
that the signature on the petition was not that of the voter. The Court deferred ruling
on this challenge to permit the parties to obtain a copy of the signer’s voter registration
card from the County, as the image viewed through the SURE system was not clear.
After the hearing, the parties proffered a photocopy of the voter’s
registration card. The copy was no clearer than what was available on the SURE
system. The Objectors, who carry the burden of establishing their challenge, provided
no other evidence to support their challenge to the validity of the signer’s signature.
23
Therefore, based upon the weight that the Court affords to the evidence presented, and
the fact that Candidate was not given any prior notice of the challenge to enable him to
obtain testimony or other evidence to rehabilitate the signature, we overrule the
challenge and find the signature appearing at page 18, line 5, to be valid. At this time,
Candidate maintained 301 valid signatures, with 1 signature challenge remaining.
Finally, Objectors challenged the validity of the signature at page 13, line
9, on the basis that the signer was not a registered voter in the 12th Legislative District
at the time she signed the petition. Specifically, the signer executed the petition on
February 21, 2018, and Objectors contend that she was not a registered voter until
March 4, 2018. Section 908 of the Election Code provides that “[e]ach 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. . . .” 25 P.S. §2868. Operator accessed the signer’s voter registration
card, which showed that signer was a registered voter in the District as of February 22,
2018. However, Operator could not testify as to when the signer submitted her
registration and what delay in processing, if any, was caused by the Bureau of Elections
itself.
During the hearing, Candidate provided no evidence to demonstrate that
the signer was a registered Democrat in the 12th Legislative District on February 21,
2018, or to otherwise rehabilitate this signature. Even though Operator acknowledged
that the registration application could have been submitted prior to its processing on
February 22, 2018, no evidence of record exists to rebut the information stated on the
voter’s registration record. The Court deferred its determination regarding the validity
of the signature. After a further review of the evidence, we must sustain Objectors’
24
challenge and find the signature at page 13, line 9 to be invalid. Therefore, Candidate
was left with 300 valid signatures and no signature challenges remaining.
Conclusion
Here, Candidate began with 338 signatures on his nomination petition,
and Objectors lodged challenges to 46 of those signatures. Out of the 46 challenges,
the parties stipulated that 20 signatures were invalid. With respect to the remaining 26
challenges, the Court concluded that 18 signatures were invalid (14 signatures pursuant
to the global challenge and 4 signatures pursuant to individual line challenges) and
determined that 8 signatures were valid. Based on the Court’s calculations, Objectors
have successfully challenged 38 of the 338 signatures on the nomination petition (20
through stipulation and 18 at the hearing), and, at the end of the contest, Candidate is
left with 300 valid signatures appearing on his nomination petition.
Because Candidate maintained 300 valid signatures on his nomination
petitions, he satisfied the requirement of section 912.1(14) of the Election Code and
his name shall remain on the ballot as a candidate for the Democratic Party Nomination
for State Representative in the 12th Legislative District in the General Primary Election
to be held on May 15, 2018.
________________________________
PATRICIA A. McCULLOUGH, Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: The Nomination Petitions of :
Daniel B. Smith, Jr. as a Democratic :
Candidate for State Representative :
in the 12th Legislative District : No. 138 M.D. 2018
:
Petition of: Rizwan Mahmood and :
Kevin R. Costello :
ORDER
AND NOW, this 29th day of March, 2018, it is hereby ordered that:
1. The Petition to Set Aside the Nomination Petition of Daniel B. Smith,
Jr., is denied. The Secretary of the Commonwealth is directed to certify Daniel B.
Smith as a candidate for the Democratic Party Nomination for State Representative
in the 12th Legislative District in the General Primary Election to be held on May
15, 2018.
2. Objectors Rizwan Mahmood and Kevin R. Costello shall bear the
cost of the stenographer. Otherwise, the parties shall each bear their own costs.
3. The Prothonotary is directed to notify the parties and their counsel of
this order and to also certify a copy thereof to the Secretary of the Commonwealth
of Pennsylvania forthwith.
________________________________
PATRICIA A. McCULLOUGH, Judge