In re: Nom. of K. Wheeler ~ Appeal of: K. Wheeler

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Nomination Petition :
of Kimberly Wheeler as :
Democratic Candidate for :
School Board Director of Souderton :
Area School District :
:
Appeal of: Kimberly Wheeler : No. 293 C.D. 2023
ORDER
AND NOW, this 5th day of May, 2023, the Court’s Memorandum
Opinion in the above matter, filed April 6, 2023, is amended to reflect the following
corrections:
Page 1, first paragraph, first sentence, should read as
follows: Kimberly Wheeler (Candidate), a Democratic
party candidate for the office of school director of
Souderton Area School District, appeals the order of the
Court of Common Pleas of Montgomery County (trial
court) that set aside her nomination petition and declared
her ineligible to be on the primary election ballot as a
Democratic party candidate for the office of school
director.
Page 1, second paragraph, fourth line, should read as
follows: Candidate, a registered Republican, filed
nomination petitions to appear on both the Republican and
Democratic primary election ballots for the office of
school director.
Page 3, first paragraph, fourth line, should read as
follows: Unlike the candidate in Smith, Candidate is
permitted to seek the nomination of both the Republican
and Democratic parties for the office of school director.
Page 3, first paragraph, ninth line, should read as
follows: As such, the general interest in preventing party
raiding does not justify the burden placed on Candidate’s
right to engage in political speech by circulating her own
nomination petitions and having “on-on-one
communication with people qualified to sign and vote for
her.”
Page 3, second paragraph, second line, should read as
follows: Only members of the Democratic party can sign
Candidate’s Democratic nomination petition and only they
can vote in the primary election that will determine the
Democratic Party candidate for the office of school
director.
Page 6, tenth line, should read as follows: 25 P.S. §2870
(emphasis added).
Page 6, first full paragraph, fourth line, should read as
follows: However, the General Assembly chose not to
extend this exception to the only other candidate that can
cross-file: a candidate for office of school director in a
district where that office is elective.
Page 6, second full paragraph, first line, should read as
follows: Candidate acknowledges that her petition for the
Democratic party nomination for the office of school
director did not comply with Section 909(a) of the
Election Code because she circulated that petition, and she
is not a member of that party.
Page 6, second full paragraph, eighth line, should read
as follows: She does not claim that her petition could be
circulated by any other Republican party member, as is the
case for the other candidates allowed to cross-file.
Page 8, first full paragraph, fourth line, should read as
follows: In Maslow, the Court of Appeals for the Second
Circuit upheld a New York law that required circulators
of nomination petitions to be members of the party whose
nomination was sought.
Page 8, first full paragraph, sixth line, should read as
follows: The Maslow court rejected the plaintiff’s
argument that the party membership restriction overly
burdened the candidate’s First Amendment right to engage
in political speech through the circulation of petitions.
Page 8, footnote 8, fourth line, should read as follows:
In Morrill v. Weaver, 224 F. Supp. 2d 882 (E.D. Pa. 2002),
the federal district court entered a permanent injunction
prohibiting the Commonwealth from enforcing the
requirements in Section 251(d) of the Election Code, 25
P.S. §2911(d), for third-party nominations.
Page 9, third paragraph, fifth line, should read as
follows: In Moreland, a registered Democrat and
candidate for school director on both the Republican and
Democratic ballots challenged the nominating petitions
for school director filed by registered Republicans for the
Republican nomination.
Page 11, second full paragraph, first sentence, should
read as follows: The legislature did not exempt the office
of school director from the same party rule in Section 909
for circulators of nomination petitions as it did for
candidates for the court of common pleas, Philadelphia
Municipal Court, and justice of the peace.
In all other respects, the opinion and order shall remain in effect.
It is ORDERED that the above-captioned opinion filed on April 6,
2023, shall be designated OPINION rather than MEMORANDUM OPINION, and
it shall be reported.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita