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In Re: Nomination Petition of andrew Gales As A Democratic Candidate

July 18, 2012

IN RE: NOMINATION PETITION OF ANDREW GALES AS A DEMOCRATIC CANDIDATE FOR STATE REPRESENTATIVE IN THE 57TH DISTRICT APPEAL OF: ANDREW GALES


Appeal from the Order of the Commonwealth Court entered March 17, 2012 at No. 140 MD 2012.

The opinion of the court was delivered by: Mr. Justice Baer

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

SUBMITTED: March 21, 2012

OPINION

This is a direct appeal from a Commonwealth Court order setting aside the nomination petition of Andrew Gales ("Candidate") as a Democratic Candidate for Pennsylvania State Representative in the 57th Legislative District.*fn1 On April 4, 2012, this Court reversed the order of the Commonwealth Court, directed that Candidate's name be printed on the April 24, 2012 primary election ballot, and indicated that an opinion would follow. This opinion provides the rationale for the Court's previous order, and holds that the Election Code does not prohibit an elector from signing a nomination petition using an obvious diminutive form of his or her first name, rather than the formal first name that appears on the elector's voter registration card.

On February 16, 2012, Candidate filed a nomination petition seeking to be listed on the Democratic ballot in the primary election for Pennsylvania State Representative in the 57th Legislative District. Under the Election Code, the nomination petition of a candidate for such office must contain 300 valid signatures of registered and enrolled members of the Democratic Party from that legislative district. 25 P.S. § 2872.1(14). Candidate's nomination petition contained 395 signatures.

On February 23, 2012, James R. Barbre and Robert E. Cole ("Objectors") filed a petition to set aside Candidate's nomination petition ("petition to set aside"), alleging, inter alia, that 119 of the 395 signatures were invalid. The parties thereafter submitted a joint stipulation that 74 of the 395 signatures were invalid, reducing the number of signatures in the nomination petition to 321.

Following an evidentiary hearing on March 6-7, 2012, the Commonwealth Court struck a total of 23 signatures, reducing the number of valid signatures to 298, two less than required under the Election Code. Significantly, the court struck ten of the signatures on the ground that the electors, while eligible and registered Democratic voters from that legislative district, signed the common diminutive version of their first name, instead of signing the full first name that appeared on their voter registration card. See Notes of Testimony, Mar. 6, 2012, at 11-22.*fn2 In support of its ruling in this regard, the Commonwealth Court cited its prior decision in Piccirilli v. Lee, 944 A.2d 840, 842 (Pa. Cmwth. 2008), which held that signatures using a "nickname," diminutive or otherwise, instead of a given first name should be stricken from a nomination petition absent evidence confirming the identity of the elector.

The following chart identifies the signatures struck on this basis.

Page Line First Name First Name Last Name

(Diminutive) (As Listed on Voter

Registration Card) 1 6 Ed Edward Christopher 1 15 Cindy Cynthia Finch 5 11 Ray Raymond Bell 5 22 Don Donald Williams 5 34 Jim James Ferrett 7 19 Tom Thomas Hart 8 4 Ray Raymond McGill 24 21 Larry Lawrence Pelerose 16 6 Debbie Debra Kosnosky 24 9 Jen Jennifer Lewis

The Commonwealth Court struck 13 other signatures for various reasons, including that women signed the nomination petition with their married names although they had registered to vote under their maiden names; that the date listed with the signature was out of sequence with the dates of other signatures on the nomination petition; and that signatures were either illegible, listed an incorrect address, or were signed in handwriting that did not match the signature on the voter registration card. Concluding that Candidate had two less signatures than required, the Commonwealth Court set aside his nomination petition and directed the Secretary of the Commonwealth not to certify Candidate in the primary election for state representative.

In reviewing the order of the Commonwealth Court concerning the validity of challenges to Candidate's nomination petition, our standard of review is "whether the findings of fact are supported by substantial evidence, whether there was an abuse of discretion, or whether errors of law were committed." In re Nomination Petition of Flaherty, 770 A.2d 327, 331 (Pa. 2001). A party alleging defects in a nominating petition has the burden of proving such defects, and, where the court is not convinced that challenged signatures are other than genuine, the challenge is to be resolved in favor of the candidate. Id. Further, the Election Code should be liberally construed to ...


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