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NOMINATION PETITION FRANK E. ELLIOTT AS CANDIDATE FOR DEMOCRATIC NOMINATION FOR OFFICE UNITED STATES SENATOR. OBJECTION WILLIAM J. GREEN (03/15/76)

decided: March 15, 1976.

IN RE: NOMINATION PETITION OF FRANK E. ELLIOTT AS CANDIDATE FOR THE DEMOCRATIC NOMINATION FOR THE OFFICE OF UNITED STATES SENATOR. OBJECTION OF WILLIAM J. GREEN


Original jurisdiction in case of In Re: Nomination Petition of Frank E. Elliott as Candidate for the Democratic Nomination for the Office of United States Senator.

COUNSEL

Gregory M. Harvey, for petitioner.

William M. Gross, with him Edgar R. Casper and James McDonough, for respondent.

Judge Kramer. Memorandum Opinion by Judge Kramer.

Author: Kramer

[ 26 Pa. Commw. Page 21]

This matter comes before this Court under the provisions of the Pennsylvania Election Code.*fn1 It was instituted by William J. Green through the filing of a Petition to Set Aside the Nomination Petition of

[ 26 Pa. Commw. Page 22]

Frank E. Elliott for the 1976 primary election for the Democratic nomination for the office of United States Senator. Green is a candidate for the same office. Green's petition was timely filed and the requisite service was properly made. As provided by an Order of the President Judge of this Court, a hearing on this matter commenced on March 2, 1976, and concluded on March 8, 1976, after four full days of hearing. Voluminous evidence and testimony were received from both parties.

Because of the great number (1,143) of objections to signatures, of which some 554 involved alleged forgeries, and the speed with which the statute requires such cases to be heard and concluded, the trial Judge, after the hearing and during his deliberation adopted certain principles or guidelines in reaching a final determination:

1. All signatures to which no objection was made or for which no evidence, or less than substantial evidence, was presented by Green were deemed to be valid signatures.

2. All signatures on all forms for each county to which Green, on the record or in his petition, conceded or withdrew his objections, were deemed to be valid signatures, i.e., the counties of Bucks, Beaver, Lackawanna, Luzerne, Susquehanna, Tioga and Washington.

3. All signatures on Form 23 for Monroe County, to which Elliott conceded as having less than the required 100 signatures, were deemed to be invalid.

4. During the hearing witnesses and counsel, at times, used different terminology than that which was used in the various categories of objections as set forth in the petition, and the evidence discloses that some signatures were invalid under more than one objection category. In an attempt to make the findings understandable, to reduce possible confusion, and for convenience, the trial Judge placed each signature found

[ 26 Pa. Commw. Page 23]

    to be invalid in only one category (rather than to repeat or duplicate it in two or more categories). In any event, care was taken to assure (a) that each signature found to be invalid was objected to, (b) that the allegation of the objection was supported by substantial evidence, and (c) that each invalid signature was placed in one appropriate category of objection, as shown in the Appendix.

5. Where there was doubt whether there was adequate evidence to support an allegation of objection to a signature, such doubt was resolved in favor of the validity of the signature. Where the nomination petition signature did not include a middle initial, or a marital prefix or a parental or child suffix, the doubt was resolved, absent specific evidence to the contrary, in favor of validity. Upon evidence of a minor or close, but wrong, number in an address, each was resolved in favor of validity, but a greater error in address was resolved in favor of invalidity in the absence of any evidence to the contrary.

6. For all signatures, except one (Form 35, line 55), where a person testified to his signature on the nomination petition as genuine (they all presented an affidavit to that effect for the purpose of amendment), the signature has been found to be valid and deemed to be so amended. It should be noted (once again) that those counties conceded or withdrawn by the parties were not considered for the purpose of this paragraph.

7. It was stipulated that all signatures to which Green did not object, or which he conceded as valid or withdrew his objection thereto, were deemed to be valid signatures without the need for an amendment.

Having heard all of the testimony presented, the undersigned trial Judge, after carefully considering the appearance, demeanor and credibility of the witnesses, makes the following findings of fact:

[ 26 Pa. Commw. Page 241]

. Elliott timely presented to the Secretary of the Commonwealth a Nomination Petition purporting to nominate himself as a candidate for the Democratic nomination for the office of United States Senator in the Democratic Primary Election to be held April 27, 1976. Elliott's petition consisted of 35 Forms*fn2 purporting to represent the signatures of more than 100 registered and enrolled members of the Democratic Party in each of 17 counties of Pennsylvania.

2. The Elliott Nomination Petition contained a total of 2,433 signatures on the 35 Forms for the 17 counties. Green objected to 1,143 signatures.

3. Green did not object to any of the signatures in three counties, i.e., Bucks County (Forms 1, 2, 3 and 4, containing a total of 123 signatures); Susquehanna County (Forms 25, 26 and 27, containing a total of 216 signatures); and Tioga County (Forms 28, 29 and 30, containing a total of 181 signatures).

4. During the course of the hearings Green conceded or withdrew his objections to four additional counties, viz., Beaver County (Forms 10, 11 and 12, containing a total of 173 signatures); Lackawanna County (Forms 16, 17 and 18, containing a total of 174 signatures); Luzerne County (Form 19, containing a total of 117 signatures); and Washington County (Forms 31 and 32, containing a total of 136 signatures).

5. During the course of the hearing Elliott conceded that he did not have the required 100 signatures for Monroe County (Form 23).

[ 26 Pa. Commw. Page 256]

. Green's petition specifically defined nine categories of objections as follows:

"A. The phrase ' not registered ' refers to each signature or purported signature which is not the signature of an elector registered and enrolled at the address affixed to such signature in the nomination petition and which signature is not similar to the name of any person shown in the records of the registration commission of the appropriate County to be a registered and enrolled elector of said County and each of which signatures is therefore averred to the the [sic] signature of a person who is not registered and enrolled within the meaning of the Election Code and hence not eligible to sign a nomination petition;

"B. The phrase ' registered in another party ' refers to each signature of an elector enrolled in the Republican Party or registered as 'Independent' or 'Non-partisan' and each of which signatures is therefore averred to be the signature of a person who is not eligible to sign a nomination petition for a candidate for the Democratic nomination for office of United States Senator;

"C. The phrase ' illegible ' refers to signatures which are not sufficiently legible as to be capable of identification and hence cannot be associated with the signatures and/or addresses of persons registered and enrolled as members of the Democratic Party within the appropriate County and which signatures therefore cannot be counted as genuine signatures in respect of a nomination petition for the Democratic nomination for United States Senator;

"D. The phrase ' duplicate ' refers to signatures of the same registered and enrolled elector which have been affixed twice to the nomination petition and which are in each such case the duplicate signature of the same person and which signatures can be counted only once as genuine signatures;

[ 26 Pa. Commw. Page 26]

"E. The phrase ' previously signed another petition ' refers to signatures of persons who signed another nomination petition for the same office, to wit, the Democratic Nomination for United States Senator, and which other nomination petition has been filed and not withdrawn, and which signatures shall be counted in order of their priority of date, pursuant to Section 977 of the Election Code, 25 P.S. § 2937, and hence cannot be counted as genuine signatures in respect of the nomination petition of Frank E. Elliott;

"F. The phrase ' signed by another ' refers to signatures which were not signed or written by the registered and enrolled elector of the same name stated in the nomination petition and which signatures are not lawful or genuine signatures for purposes of a nomination petition and cannot lawfully be counted among the signatures constituting the number necessary for nomination of a candidate;

"G. The phrase ' different signature ' refers to each signature or purported signature which is not the signature of an elector registered and enrolled at the address affixed to such signature in the nomination petition but which signature bears some similarity to the name of an elector registered and enrolled at such address, so that by such evidence as might establish that the signature on the nomination petition was actually signed by the registered and enrolled elector having a similar name, an amendment to the nomination petition might be allowed to cause the signature on the nomination petition to correspond with the name of an elector registered and enrolled as a member of the Democratic Party, so that such signature might then be counted as a genuine signature;

"H. The phrase ' different address ' refers to each signature or purported signature which appears to be the signature of an elector registered and enrolled in the appropriate county, but at an address which is different

[ 26 Pa. Commw. Page 27]

    from the address affixed to such signature in the nomination petition, so that by such evidence as might establish that the elector continues to have his or her residence at the address stated in the records of the registration commission, pursuant to the requirements of the Election Code, including § 703 and 704, 25 P.S. § 2813-14, an amendment to the nomination petition might be allowed to cause the address on the nomination petition to correspond with the address of such elector as shown in the records of the registration commission, so that such signature might then be counted as a genuine signature;

"I. The phrase ' wrong date ' refers to each signature or purported signature to which is affixed on the nomination petition a date which is outside the three-week period for circulation of nomination petitions, to wit, January 27, 1976 through February 17, 1976, or to which no date whatsoever has been affixed, so that such signature cannot lawfully be counted as a genuine signature. . . ."

7. Nine counties remained at issue at the end of the hearing. The Forms of eight of those counties do not contain the requisite signatures in support of the nomination petition. The Forms of one county do contain sufficient signatures.

8. The trial Judge's specific findings on each of the contested signatures on each of the forms for the respective nine counties still contested are set forth in the Appendix attached to this Memorandum Opinion. The Appendix consists of nine pages, with the respective county and the category of the objection noted thereon. The categories of the objections are the same as the lettered categories used by Green in his petition, as set forth in Finding 6 ...


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