Working Families Party, Christopher M. Rabb, Douglas B. Buchholz, and Kenneth G. Beiser, Petitioners
Commonwealth of Pennsylvania, Pedro A. Cortes, in his Official Capacity as Secretary of the Commonwealth of Pennsylvania and Jonathan M. Marks, in his Official Capacity as Commissioner, Bureau of Commissions, Elections and Legislation, Department of State, Commonwealth of Pennsylvania, Respondents
Argued: February 8, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON,
Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE
MICHAEL H. WOJCIK, Judge, HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge.
HANNAH LEAVITT, PRESIDENT JUDGE.
Families Party, Christopher M. Rabb, Douglas B. Buchholz, and
Kenneth G. Beiser (collectively, Working Families) have filed
a petition for review in this Court's original
jurisdiction against the Commonwealth of Pennsylvania;
Pedro A. Cortes, Secretary of the Commonwealth of
Pennsylvania; and Jonathan M. Marks, Commissioner of the
Department of State's Bureau of Commissions, Elections,
and Legislation (collectively, Commonwealth), challenging, as
unconstitutional, several provisions of the Election
that prohibit the nomination of a single candidate for public
office by two or more political organizations. Such a
nomination process is called
"fusion." Before the Court are the parties'
cross-applications for summary relief. Concluding that the
anti-fusion provisions of the Election Code are
constitutional under the United States and Pennsylvania
Constitutions, we deny Working Families' application for
summary relief and grant the Commonwealth's application
for summary relief.
& Procedural History
undisputed facts of this case are as follows. In the April
26, 2016, primary election, Christopher M. Rabb was nominated
by the Democratic Party as its candidate for Representative
of the General Assembly's 200th Legislative
District. In July 2016, approximately three months
after the primary election, Working Families circulated
papers to nominate Rabb as its candidate in the general
election for Representative of the 200th Legislative
District. On July 27, 2016, Working Families submitted
Rabb's nomination papers with 958 signatures of
registered voters in the 200th Legislative District, a
Candidate Affidavit, Rabb's Statement of Financial
Interests, and a check in the amount of $100 to Commissioner
Marks' office at the Department of State.
altered his Candidate Affidavit by striking through the
that my name has not been presented as a candidate by
nomination petitions for any public office to be voted for at
the ensuing primary election, nor have I been nominated by
any other nomination papers for any such office; that if I am
a candidate for election at a general or municipal election I
shall not be a registered and enrolled member of a political
party at any time during the period of thirty (30) days prior
to the primary up to and including the day of the following
general or municipal election[.]
Petition ¶25; Answer ¶25; Commonwealth's
Application for Summary Relief Ex. 4. Rabb further altered
his Candidate Affidavit by adding the following italicized
I swear (or affirm) to the above parts as required by the
laws applicable to the office I seek, having struck out
certain parts based on my honest and sincere belief that they
are violative of the Pennsylvania and U.S.
Working Families' Application for Summary Relief
¶15; Commonwealth's Application for Summary Relief
Marks refused to process Rabb's nomination papers for two
reasons. First, Rabb had "altered the form of the
statutory candidate affidavit." Second,
"[Rabb's] name was already presented by nomination
petitions in the General Primary, which precludes [him] from
seeking the nomination of a political body pursuant to 25
P.S. §2911(e)(5)." Commonwealth's Application
for Summary Relief Ex. 6.
August 5, 2016, the Working Families Party, Rabb, and two
voters residing in the 200th Legislative District, Douglas
Buchholz and Kenneth Beiser, challenged Commissioner
Marks' decision with the instant lawsuit. Working
Families' petition for review included two counts. Count
I requested a declaratory judgment that the anti-fusion
provisions of the Election Code are unconstitutional under
the United States and Pennsylvania Constitutions. Count II
requested a writ of mandamus directing the Commonwealth to
process Working Families' nomination papers for Rabb and
to prepare a general election ballot that showed Rabb's
nomination by both the Democratic Party and Working Families
Party for Representative to the General Assembly for the
200th Legislative District.
that there were no disputed issues of fact, on August 25,
2016, this Court directed the parties to file applications
for summary relief with supporting briefs. Working Families
filed its application for summary relief on September 2,
2016, and the Commonwealth filed its application on September
7, 2016. On September 13, 2016, a panel heard oral argument.
oral argument, this Court denied Working Families'
application for summary relief on Count II and granted
corresponding relief to the Commonwealth. The Court held that
mandamus was not the appropriate vehicle for testing the
constitutionality of a statute and, thus, dismissed Count II
of the petition for review. Working Families Party v.
Commonwealth, (Pa. Cmwlth., No. 435 M.D. 2016, filed
September 30, 2016), slip. op. at 3-4. Argument on the
parties' applications for summary relief on Count I of
the petition for review seeking declaratory relief was heard
in February 2017, before this Court en banc.
Count I, Working Families asks this Court to declare that the
anti-fusion provisions of the Election Code violate the 14th
Amendment to the United States Constitution, and Article I,
Sections 5, 7, and 20 of the Pennsylvania Constitution. The
Commonwealth responds that the anti-fusion provisions
constitute a valid exercise of the legislature's power to
regulate elections under the United States and Pennsylvania
begin with a review of the relevant statutory provisions and
case law precedent. In the 1800s and early 1900s, fusion was
a common feature of many states' electoral systems,
including Pennsylvania's. See Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 356 (1997) ("Fusion
was a regular feature of Gilded Age American
politics."). In 1937, the Pennsylvania General Assembly
enacted a comprehensive election statute, known as the
Election Code, 25 P.S. §§2600-3591, to assure the
efficiency and integrity of the electoral process. In re
Street, 451 A.2d 427, 433 (Pa. 1982). Included therein,
as an "essential element of the Legislature's plan,
" are several anti-fusion provisions that forbid a
single candidate in a statewide race from appearing on the
ballot multiple times on behalf of more than one party.
Id. The anti-fusion provisions ended party-raiding,
which is "the organized switching of blocks of voters
from one party to another in order to manipulate the outcome
of the other party's primary election." Anderson
v. Celebrezze, 460 U.S. 780, 788 n.9 (1983).
Party-raiding results in one political faction dominating
both political parties in the primaries. The Election
Code's ban on fusion remains in force
Election Code divides political organizations into two
classes: political parties and political bodies. Section 801
of the Election Code, 25 P.S. §2831. The political
party designation is further divided into "major
political parties" and "minor political
parties." Section 912.2 of the Election Code, 25 P.S.
§2872.2. This Court has explained the distinction
between a "political body" and a "political
party" as follows:
[A] "political party" is a group that receives more
than a certain number of votes at the preceding general
election and is permitted to select its candidates by the
primary election method after which the prospective candidate
places his or her name on the primary ballot by filing a
nomination petition. Any other political group is a
"political body" and must select its candidates by
filing nomination papers.
In re Zulick, 832 A.2d 572, 574 n.7 (Pa. Cmwlth.
2003) (citations omitted). In short, a political party uses
the primary election to nominate its candidate; a political
body nominates its candidate by collecting the requisite
number of signatures from electors, of any party or no party,
and filing nomination papers with the Secretary of the
anti-fusion provisions of the Election Code prohibit
political parties and political bodies from nominating
candidates already nominated by another political
organization. Those anti-fusion provisions relevant to
political bodies follow.
951(e)(5) of the Election Code requires a political body
candidate to file an affidavit with the Commonwealth stating
that his name has not been presented as a candidate by
nomination petitions for any public office to be voted for at
the ensuing primary election, nor has he been nominated by
any other nomination papers filed for any such office[.]
25 P.S. §2911(e)(5). Likewise, the Secretary of the
Commonwealth is required to reject nomination papers
if the candidate named therein has filed a nomination
petition for any public office for the ensuing primary, or
has been nominated for any such office by nomination papers
976 of the Election Code, 25 P.S. §2936 (applicable to
both political bodies and political parties). Finally, the
Election Code prohibits a political body from filing a
substitute nomination certificate for a candidate already
nominated by another political party. Section 980 of the
Election Code states:
no substitute nomination certificate shall nominate any
person who was a candidate for nomination by any political
party for any office to be filled at the ensuing November
election, whether or not nominated for such office by such
political party, or who has already been nominated by any
other political body for any office to be filled at the
ensuing November or special election.
25 P.S. §2940. Significantly, the Election Code has
identical provisions prohibiting political parties from
engaging in fusion. See Sections 910 and
979of the Election Code, 25 P.S.
Families concedes that the Election Code prohibits fusion of
candidates in statewide races and makes no exception for
major political parties. However, Working Families maintains
that the so-called "Magazzu Loophole, "
named after our Supreme Court's decision in Appeal of
Magazzu, 49 A.2d 411 (Pa. 1946), allows major political
parties to fuse their candidates in statewide races, such as
those for General Assembly and United States Congress, but
denies political bodies this opportunity.
primary election of 1946, Pietro A. Magazzu was a Republican
candidate for the office of representative in the General
Assembly. He was defeated by another Republican candidate.
The Democratic ticket contained one candidate, Milo B.
Serfas, and Magazzu defeated Serfas by write-in votes. The
county board of elections refused to certify Magazzu as the
nominee of the Democratic Party; instead, it certified
Serfas. The issue presented to our Supreme Court was whether
"a candidate who had filed nominating petitions as a
member of one party [was] ineligible to receive the
nomination of another party for the same office by
'write-in' or legal ballots or votes[.]"
Magazzu, 49 A.2d at 411.
Supreme Court recognized that the Election Code forbids a
candidate from being nominated by more than one political
party. However, the Court clarified that:
[n]owhere in the act, or its amendments, is there a
prohibition against a voter writing in or pasting in the name
of a person for whom he desires to vote if such name is not
printed on the ballot of the political party of which the
voter is a member.
Id. at 412. The Court also noted that the
opportunity for write-in votes on a paper ballot is
guaranteed by Section 1002(b) of the Election Code, which
There shall be left at the end of the list of candidates
… as many blank spaces as there are persons to be
voted for, for such office, in which space the elector may
insert the name of any person whose name is not printed on
the ballot as a candidate for such office.
25 P.S. §2962(b). Similarly, Section 1216(e) provides a
mechanism for write-in votes where voting is done by machine:
[a] voter may, at any primary or election, vote for any
person for any office, for which office his name does not
appear upon the voting machine as a candidate, by an
irregular ballot containing the name of such person
deposited, written or affixed in or upon the appropriate
receptacle or device provided in or on the machine for that
purpose, and in no other manner.
25 P.S. §3056(e). The Supreme Court held that Magazzu
belonged on the general election ballot as the Democratic
Party candidate for state representative.
Magazzu, one candidate by that name appeared on the
general election ballot with a single party designation.
Working Families notes that a candidate can win a major
party's nomination in the primary and also win
another party's nomination by means of write-in votes. In
that case, the candidate will appear on the general election
ballot as nominated by both major political parties. Working
Families asserts that this happens with some
Commonwealth responds that Working Families overstates the
significance of our Supreme Court's holding in
Magazzu. It contends that Magazzu simply
established that the Election Code allows a voter to write in
"the name of a person for whom he desires to vote if
such name is not printed on the ballot of the political party
of which the voter is a member" and to expect that vote
to be counted. Magazzu, 49 A.2d at 412.
Magazzu did not create a "loophole" from
the anti-fusion provisions of the Election Code. In any case,
the Magazzu holding applies equally to major
political parties, minor political parties, and political
bodies. We agree.
holding in Magazzu does not authorize the two major
parties to nominate a single candidate for statewide office.
Rather, Magazzu stands for the simple proposition
that in a primary election, a voter may write in the name of
any person "not printed on the ballot of the political
party" to which the voter belongs. Id. The
write-in vote allows citizens to choose a candidate who does
not have the support of the party establishment. A major
party candidate can win his party's primary election and
also win the other party's primary with write-in votes.
In that case, the individual will appear on the ballot as the
candidate for the two major parties in the general election.
However, a political body candidate who has filed the
requisite nomination papers prior to the primary election can
also win the write-in vote for a major party in the primary
and, thus, appear on the general election ballot as the
candidate of a major party and of a political body.
anti-fusion provisions of the Election Code forbid the
nomination of one candidate by more than one political
organization for the same office. However, these provisions
have nothing to do with the ability of voters to nominate a
candidate by write-in vote. The potential for fusion by a
successful write-in campaign is not limited to major party
candidates. The same may be accomplished by a political body.
We reject Working Families' contention that
Magazzu permits what the anti-fusion provisions of
the Election Code prohibit.
this background, we turn to the constitutional challenge
Working Families has lodged against Sections 634, 910, 951,
976, 979, 980 and 1406 of the Election Code, 25 P.S.
§§2784, 2870, 2911, 2936, 2939, 2940, and 3156.
These provisions, in various ways and at various steps in the
electoral process, prohibit two or more political
organizations from nominating a single candidate. The
proscription applies both to political parties, major and
minor, and to political bodies.
Families first contends that the anti-fusion provisions of
the Election Code violate the equal protection clause of the
Fourteenth Amendment to the United States
Constitution. More specifically, Working Families
argues that the anti-fusion provisions have a disparate
impact on political bodies. Working Families concedes that it
can use write-in votes to have its candidate also appear on
the ballot as the candidate of a major party. However, it
argues that the write-in path to fusion is far more difficult
for political bodies than for major parties.
major party to fuse its candidate with another party, a
candidate submits a nomination petition with the requisite
number of signatures to appear on the primary
ballot. Simultaneously, the party or candidate,
or both, must launch a write-in campaign for the other major
party's nomination in the primary. If the primary
election results in the candidate winning the nomination of
both parties, he will appear on the general election ballot
as a candidate for both parties.
political body to fuse, the task is different. The political
body's preferred candidate cannot file a nomination
petition as a major party candidate and appear on the primary
election ballot. The political body nominates its candidate
by filing nomination papers with the Secretary of the
Commonwealth on or before August 1st. If the
political body wants to have its preferred candidate also
appear on the general election ballot as a major party
candidate, it must wage a write-in campaign. To do this, it
will have to file its nomination papers before the primary
election takes place. Working Families' Brief in
Support of Summary Relief at 26. Notably, to sign a political
body's nomination papers, the elector needs to be a
registered voter, but he need not be a member of the
political body. Working Families contends that its path
to fusion is more difficult and, thus, the fusion ban
violates equal protection.
Families' argument presupposes that a grass roots
movement cannot successfully take on the candidate chosen by
a major party's establishment, which commands the
party's coffers and staff. Surely, the presidential race
of 2016 undermines this assumption. One anti-establishment
candidate was no doubt assisted by his personal fortune and a
successful reality television show. However, the socialist
candidate, lacking both attributes, almost defeated the other
major party's establishment candidate.
by write-in vote is different for a political body than for a
major party because the Election Code sets up a different
nomination procedure for each political organization. That a
political body finds it difficult to have its candidate win a
major party primary by write-in vote may be explained by the
lack of an appealing candidate with an inspiring message.
Acknowledging the political body's different path to
fusion by a write-in campaign, we address Working
Families' equal protection claim.
Pennsylvania Supreme Court has summarized the basic
principles of equal protection as follows:
The prohibition against treating people differently under the
law does not preclude the Commonwealth from resorting to
legislative classifications provided that those
classifications are reasonable rather than arbitrary and bear
a relationship to the object of the legislation.
Kramer v. Workers' Compensation Appeal Board (Rite
Aid Corp.), 883 A.2d 518, 532 (Pa. 2005) (quoting
Curtis v. Kline, 666 A.2d 265, 267-68 (Pa. 1995))
(emphasis added). In short, legislative classifications,
per se, do not offend equal protection.
level of scrutiny to be applied to a legislative
classification depends upon the interest affected by the
classification. Our Supreme ...