The opinion of the court was delivered by: Judge Leavitt
AND NOW, this 4th day May, 2010, it is hereby ORDERED that the above-captioned opinion filed April 13, 2010, shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge.
Before this Court is a petition filed by Joseph A. Sestak, Jr. (Objector) to set aside the Nomination Petition for the Office of United States Senator filed by Joseph Vodvarka (Candidate). Candidate seeks to appear on the ballot in the primary election scheduled for May 18, 2010. Objector, also a Democratic Party candidate for that office, contends that Candidate's nomination petition lacks the minimum number of signatures required by law to appear on the primary election ballot. Concluding that Objector's contention has merit, the Court must set aside Candidate's Nomination Petition.
To appear on the primary election ballot as a candidate for the office of United States Senator, Section 912.1(2) of the Pennsylvania Election Code (Election Code)*fn1 requires 2,000 valid signatures of registered electors who are members of the party whose nomination is sought. Candidate filed a nomination petition with the Department of State consisting of 154 pages and showing 2,590 signatures. Each line on a nomination petition contains a space where the following information must be provided: signature of elector, printed name of elector, place of residence (including house number; street or road; city, borough or township) and date. All this information must be filled out in the hand of the signing elector. In re Nomination Petition of Silcox, 543 Pa. 647, 650, 674 A.2d 224, 225 (1996).
Objector's petition challenged 1,165 signatures in the nomination petition as invalid for a variety of reasons. These reasons included: lack of cursive signature by elector; illegible signatures; use of nicknames or initials; incomplete address or use of dittos; incomplete date or use of dittos; a signature made after the circulation date on the circulator's affidavit; deletions made by Department of State; address out of county; signature or information written in the hand of another; elector not registered in county; elector's signature varies from registration card; elector's address varies from registration card; multiple signatures by same elector; elector not a member of the Democratic Party; and lack of printed name by elector.
Candidate stipulated that many signatures on his petition were invalid for a variety of reasons, leaving a total of 2,172 signatures on Candidate's nomination petition. At the hearing, Objector made facial challenges to 97 of the 2,172 total signatures. The facial challenges were those that could be decided without any evidence other than the nomination petition itself because, for example, information required to be on the nomination petition was missing, such as a street number or date of signature. Candidate agreed to 54 of Objector's facial challenges.*fn2 However, Candidate then offered evidence to rehabilitate six of the 54 signatures with affidavits from the signing electors, which (1) explained that they had erroneously written a zip code instead of a date and (2) provided the date on which they signed the nomination petition.*fn3 The Court accepts this rehabilitation evidence. The Court's finding means that 48 of Objector's facial challenges have merit. Thus, before considering further evidence and without deciding the remainder of Objector's facial challenges, the total number of valid signatures on Candidate's nomination petition is 2,124.
The parties have stipulated that in 229 instances, the elector declared a residence on the nomination petition at an address that is different from the address contained in the county's voter registration records. Objector asserts that absent extraordinary circumstances, which is the Candidate's burden to prove, all 229 of these signatures must be stricken. Candidate responds that for all 229 of these signatures, the elector who signed the petition is still registered in the county, albeit at a different address. Candidate believes that if the Court finds, as fact, that the elector's signature on the nomination petition and on the voter registration record is the same, or similar, the signature can be counted as valid notwithstanding the discrepancy in address. The burden then shifts, according to Candidate, to Objector to prove that Candidate's proffered rehabilitation should be rejected for some reason. The parties agree that if the Court accepts Objector's legal position, the 229 signatures in question must be stricken from Candidate's nomination petition.
The Court begins with a review of the principles applicable in a challenge to a nomination petition. The Election Code is to be liberally construed so as not to deprive an individual of the right to run for office or the voters of their right to elect a candidate of their choice. In re Nomination Petition of Wesley, 536 Pa. 609, 613, 640 A.2d 1247, 1249 (1994). It is equally well-settled that a party alleging defects in a nomination petition has the burden of proving such. In re Johnson, 509 Pa. 347, 354, 502 A.2d 142, 146 (1985).
In the past, a signature was not necessarily stricken from a nomination petition where the elector declared a residence on the nomination petition at an address different from that found in the voter registration records. See, e.g., In re Nomination Petition of Cooper, 643 A.2d 717, 726 (Pa. Cmwlth. 1994). The discrepancy could lead to a signature strike, however, if the objector could show that the elector did not live ...