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Working Families Party v. Commonwealth

Commonwealth Court of Pennsylvania

September 18, 2017

Working Families Party, Christopher M. Rabb, Douglas B. Buchholz, and Kenneth G. Beiser, Petitioners
v.
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 [1] HONORABLE JOSEPH M. COSGROVE, Judge.

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE.

         Working 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[2] 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 Code[3] that prohibit the nomination of a single candidate for public office by two or more political organizations. Such a nomination process is called "fusion."[4] 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.

         Background & Procedural History

         The 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.[5] 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.

         Rabb altered his Candidate Affidavit by striking through the following text:

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 text:

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. [C]onstitutions.

Working Families' Application for Summary Relief ¶15; Commonwealth's Application for Summary Relief ¶15.

         Commissioner 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)."[6] Commonwealth's Application for Summary Relief Ex. 6.

         On 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.

         Concluding 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.

         Following 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.[7] 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.

         In 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 Constitutions.

         Historical Background

         We 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 today.[8]

         The Election Code divides political organizations into two classes: political parties and political bodies. Section 801 of the Election Code, 25 P.S. §2831.[9] 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.[10] 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 Commonwealth.

         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.

         Section 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 previously filed[.]

         Section 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[11] and 979[12]of the Election Code, 25 P.S. §§2870, 2939.

         Working 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.

         Appeal of Magazzu

         In the 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.

         The 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 states:

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).[13] The Supreme Court held that Magazzu belonged on the general election ballot as the Democratic Party candidate for state representative.

         In 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 regularity.[14]

         The 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.

         The 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.

         The 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.

         Alleged Constitutional Violations

         With 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.

         I.

         Working 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.[15] 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.

         For a 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.[16] 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.

         For a political body to fuse, the task is different.[17] 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.[18] 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.[19] Working Families contends that its path to fusion is more difficult and, thus, the fusion ban violates equal protection.[20]

         Working 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.

         Fusion 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.

         The 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).[21] In short, legislative classifications, per se, do not offend equal protection.

         The level of scrutiny to be applied to a legislative classification depends upon the interest affected by the classification. Our Supreme ...


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