Original Jurisdiction in the case of In Re: Petition of Edward J. Thompson for the nomination of the Republican Party for Forty-fifth (45th) Senatorial District.
John Lyons, for petitioner.
Thomas L. Wenger, Wix, Wenger & Weidner, for respondent.
Judge Doyle. Opinion and Order by Judge Doyle.
[ 102 Pa. Commw. Page 111]
We have before us for consideration the petition of Darryl D. Granata to strike the nominating petition filed by Edward J. Thompson for the Republican party's nomination for the state senate in the 45th Senatorial District, which district is partially within Allegheny County and partially within the counties of Washington and Westmoreland. The challenge is made under Section 977 of the Pennsylvania Election Code (Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2937. A full hearing was conducted by this Court on February 14, 1984. At the conclusion of the hearing the parties were granted permission to file supporting briefs and additional written documentation. Both parties submitted
[ 102 Pa. Commw. Page 112]
briefs and the respondent also submitted forty-one affidavits in support of the bona fideness of signatures challenged by the petitioner.*fn1
The nomination petition of the respondent contains 224 signatures and is composed of six pages, the first four of which have two sides. Only 200 signatures are actually required under Section 912 of the Code, 25 P.S. § 2872. In support of his attempt to strike the petition of the respondent, the petitioner produced only one witness, Mr. Mark Wolosik, who is the Supervisor of Balloting and Returns for the Allegheny County Department of Elections. The challenges of the petitioner may be separated into six categories, which we will address seriatim.
A. SIGNERS WHO DO NOT RESIDE IN THE 45TH SENATORIAL DISTRICT
This challenge pertained to one person only, Vicki Afola (page 2, line 12) who resided in Plum Borough. Plum Borough is not in the 45th Senatorial District; it is in the 44th Senatorial District. 104 Pa. Code § 1.1. This name will be struck from the petition.
B. SIGNATORIES WHOSE SIGNATURE APPEARED TWICE ON THE NOMINATION PETITION
Here the petitioner made two challenges, both of which will be sustained by reference to the pages and
[ 102 Pa. Commw. Page 113]
lines indicated. The names of Joseph R. Forkel (page 3, line 19) and Robert F. Prokop (page 3, line 27) will be struck as being duplicates. This will leave untouched, however, for the purposes of the final count, the signatures of the named individuals appearing on page 2 of the petition.
C. SIGNATURES CHALLENGED BECAUSE THEY WERE NOT REGISTERED AT ALL, OR WHO HAD BEEN STRUCK FROM THE VOTER REGISTRATION ROLES FOR NOT VOTING OR WHO WERE NOT ENROLLED MEMBERS OF THE REPUBLICAN PARTY, OR WHO WERE NOT REGISTERED AT THE GIVEN ADDRESS.
Under this category, there were fifty-three total signatures challenged. At the outset, however, nine challenges were withdrawn by the petitioner.*fn2 Of the forty-four remaining signatures, the testimony of Mr. Wolosik established that eleven were proper and were duly registered and enrolled members in the Republican Party at the address stated within the 45th Senatorial District. Those signatures are therefore valid, and the petitioner's challenges as to them are dismissed.*fn3
[ 102 Pa. Commw. Page 114]
Mr. Wolosik further testified that an additional four signatures were those of persons who were registered Democrats.*fn4 Since Section 907 of the Code requires that in a primary election only those persons registered in the political party of the candidate may lawfully sign his petition, the names of the four Democrats must be struck.
It becomes necessary at this juncture to address respondent's objection to the testimony of Mr. Wolosik as it related to the other challenges in this general category, that is, persons who were challenged because they were not properly registered or were not registered at the address given in the petition. On direct examination, Mr. Wolosik stated that he had been an employee of the Allegheny County Department of Elections for twelve years, that he was Supervisor of Balloting and Returns, and that his duties included checking the nominating petitions and maintaining the voter registration records (N.T. 7). After this cursory explanation, he then proceeded to testify, without objection by the respondent,
[ 102 Pa. Commw. Page 115]
regarding the registration, or non-registration of each person challenged as their names were recited to him by counsel (N.T. 12-42). Other than those withdrawn from contest or found to be either proper or improper because they were registered Republicans or Democrats, in which case there were registration cards for verification, he related that all other challenged signers in this category were not proper signatories for at least one of several reasons; either they were not registered at all, or they had been struck from the rolls for not voting within two years resulting in their registration being suspended,*fn5 or no one by the name searched was registered at the given address; all testimony involving a negative finding and conclusion. On several occasions the witness related that there was no record of anyone by the stated name registered anywhere in Allegheny County. Since the 45th Senatorial District is not entirely subsumed within Allegheny County, however, this "search" cannot be accepted as being exhaustive.
On cross-examination it was also brought out that Mr. Wolosik was not the supervisor of the voter registration department, was not in charge of the registration cards and had no particular responsibility for them other than bringing them to Court (N.T. X2).*fn6 Furthermore, he was not in charge of the computerization of the voters registration list. Since all of his testimony with regard to the searches made showing a negative
[ 102 Pa. Commw. Page 116]
result, i.e., the absence of a registered voter at a particular address, was based solely upon the computerized voters list (N.T. 91-96), his testimony became immediately suspect. He candidly admitted that he had only "minimal responsibility" for the registration forms and his entire testimony with regard to the proper registration of the persons challenged was completely based on the information supplied to him by the Chief Registrar contained in a written list on a yellow scratch pad (N.T. X2-10). He admitted that he himself did not conduct the search but that it was conducted by the Chief Registrar and the results were given to him (N.T. X5, 6). The testimony of this witness in this regard therefore was palpably hearsay and will be ignored by the Court.*fn7 Additionally, there is a more compelling reason why the testimony of Mr. Wolosik cannot be accepted. His testimony on cross-examination disclosed that the process used in the compilation of the computerized voter registration list was "cut off" on December 14, 1983, and that after that date the name of any newly registered voter had only a "50/50" chance of being inserted into the computerized makeup of the Allegheny County records (N.T. X11-13). In direct response to questions from the bench, his testimony was as follows:
[ 102 Pa. Commw. Page 117]
THE COURT: . . . If someone registered January 5th would they show on the computer records as of January 31st?
THE WITNESS: It's possible they could. I can't given [sic] an exact answer for each.
THE COURT: Is it possible they could not?
THE WITNESS: It's possible they could not.
By reference to the date that the signators signed the petition, i.e., between January 19th and January 30th, it is abundantly clear that those challenged for not being registered might very well have been registered on the date they signed, but their names would not appear on the lists which formed the basis of the search.
In those instances where the voter was suspended for not voting, cards were sent out in the second week of January advising them to return the card if they did not wish to be suspended. The voters' names would be taken out of the computer list when the cards were sent in January. But even if the card was properly returned by the voter, it was very possible his name would not have been put back into the computerized list before the search was made by the registrar's office (N.T. X16-21).
Since the testimony of the witness was based solely on the computer records of the county's registration department, it is clear that his testimony as to the absence of a name on the roles of registered electors could be grossly inaccurate. Any conclusion that a particular named person who signed the respondent's nominating petition was not a ...