Working Families Party v. Commonwealth, 435 M.D. 2016.

• Decision Date: 18 September 2017
• Docket Number: No. 435 M.D. 2016.,435 M.D. 2016.
• Citation: 169 A.3d 1247
• Parties: 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
• Court: Pennsylvania Commonwealth Court

169 A.3d 1247

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

No. 435 M.D. 2016.

Commonwealth Court of Pennsylvania.

Argued February 8, 2017
Decided September 18, 2017

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Jordan B. Yeager, Doylestown, for petitioners.

Keli M. Neary, Deputy Attorney General, Harrisburg, for respondents.

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

169 A.3d 1249

OPINION BY PRESIDENT JUDGE LEAVITT

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 jurisdiction² 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 Code³ 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:

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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, 2016 WL 5845824.⁷ Argument on the

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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, 117 S.Ct. 1364, 137 L.Ed.2d 589 (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 , 499 Pa. 26, 451 A.2d 427, 433 (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, 103 S.Ct. 1564, 75 L.Ed.2d 547 (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

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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...