In re Nomination Paper of Rogers

Decision Date01 September 2006
Docket NumberNo. 426 M.D.2006.,426 M.D.2006.
PartiesIn re NOMINATION PAPER OF Marakay ROGERS, Christina Valente and Carl J. Romanelli as Candidates of an Independent Political Body for Governor, Lieutenant Governor and U.S. Senator in the General Election of November 7, 2006 William R. Caroselli, Fred R. Levin, Daniel J. Anders and Peter D. Winebrake, Petitioners.
CourtPennsylvania Commonwealth Court

Clifford B. Levine, Pittsburgh, for petitioners.

Lawrence M. Otter, Doylestown, for respondents.

OPINION BY President Judge COLINS.

Green Party candidate for United States Senate, Carl Romanelli (Candidate), has filed a document entitled generally Motion to Quash the Objectors' Petition to Set Aside his nomination papers. The document includes preliminary objections to the Petition to Set Aside. The objections pertain to certain paragraphs of the Objectors' petition, and raise issues concerning alleged (1) lack of specificity, (2) inclusion of "scandalous and impertinent material," (3) failure to plead fraud with specificity, and (4) illegality of Section 951 of the Election Code1 under the state and federal constitutions.

The Objectors have filed an amended Motion for Expedited and Limited Hearing that seeks an order of the Court approving the amendment of line challenges in the initial Petition to Set Aside: objections originally based on the illegibility of signatures and the lack of registration of petition signers would be amended to include challenges to the addresses of the signers. In this memorandum, we will discuss all issues raised by the parties with the exception of the constitutional challenge to Section 951. The Court will issue a separate decision regarding Candidate's constitutional challenge.

The Objectors initially challenged numerous signatures as illegible and numerous other signatures as not registered. During the parties' review process to stipulate validity or invalidity of the challenged lines as ordered by this Court, many of the "illegible" signatures were identified, and many of the "unregistered" signatures were found to be those of a registered elector. Accordingly, the original reason for challenging these signatures has not been proven. Objectors argue, however, that the review process has shown that the addresses of the signers do not match the registration records and seek to amend the objections to now include address challenges. The Candidate opposes these amendments.

Authority to Allow Amendment

Pertinent to our discussion is Section 977 of the Election Code, 25 P.S. § 2937, which provides that

All nomination petitions and papers received and filed within the periods limited by this act shall be deemed valid, unless, within seven days after the last day for filing said nomination petition or paper, petition is presented to the court specifically setting forth the objections thereto, and praying that the petition or paper be set aside.

The Objectors rely upon the Supreme Court's decision in In re Bryant, 578 Pa. 421, 852 A.2d 1193, 1195-6 (2004), to support their argument that granting the amendment is appropriate under the circumstances. Bryant involved the discrete issue of whether the objector could amend his challenge to a nomination petition, which originally raised improprieties in the signature and affidavit of circulation requirements, to add a substantive challenge to the candidate's statement of financial interests after the expiration of the seven-day time period for filing objections to nomination petitions. Before the seven-day period had lapsed, the objector had filed a pre-hearing memorandum purportedly reserving the right to pursue additional grounds for setting aside the nomination petition. The Supreme Court reversed this Court's decision, and concluded that the objector could not raise an entirely new objection, i.e., to validity of the candidate's statement of financial interest, after the seven-day period for filing objections.

In rejecting the objector's argument that trial courts have discretion to allow amendments to objections, the Supreme Court cited with approval a line of cases that recognized a court's discretion to permit amendments when the objector's timely filed general allegations of invalidity put the candidate on notice of more specific allegations of invalidity. The cases the Supreme Court cited clearly support a decision in this case to allow amendment. Most significant among those cases is Appeal of Beynon, 370 Pa. 532, 538, 88 A.2d 789, 792 (1952), also cited by the Objectors here, which stands for the proposition that, as long as an objector has challenged signatures on a nomination paper, the objector is not precluded, after the seven-day period, from seeking to advance a challenge to those signatures on other grounds in the Election Code at the hearing on a petition to set aside the nomination petition.

The Candidate does not dispute that the Objectors' proposed amendments relate to signatures that the Objectors challenged in their timely filed petition to set aside. Thus, in accordance with Beynon, which we confidently follow as reliable precedent, if the amendments the Objectors here seek pertain to the challenged signatures, and assert invalidity based on a different but sound reason, that reason having its foundation in the Election Code, granting the Objectors' request to amendment is appropriate.2

Specific Amendments Requested
a. Signatures Originally Challenged as Illegible

The Objectors first argue that the amendments they seek with regard to signatures originally challenged as illegible is proper because they have already objected to the specific signatures. A review of the original nomination papers would indicate that many of the illegible signatures were later deciphered after several individuals reviewing the signatures came up with variations of possible names, one of which turned out to be the actual name of the voter. Objectors seek to amend these challenges to assert that the signatures are invalid because the signers are not voters registered at the addresses given. Although the signature review ordered by this Court subsequently revealed that the names could be identified, the Objectors assert that the signers are not registered at the addresses listed. Thus, while the original objection related to the fact that the signatures and printed names could not be deciphered or associated with the name of any registered voter, subsequent review using the SURE system supported disqualification of these signatures for another reason — one not originally listed with the objection, but one that is nevertheless a valid reason for rejection under the Election Code, i.e., an invalid address. The Candidate's representatives refuse to stipulate that these signatures are invalid because of the failure of the names and addresses to match registration records.

On August 30, 2006, this Court, during the course of oral argument on the present Motion, accepted into evidence an example of one of the challenged signatures. The example was a signature that appeared to be the name "Marlo Thomas," with an address of "5913 Irving Phila."3 A SURE review of the address indicated that two other registered voters had such an address, but neither of those names corresponded to the name that appeared to be "Marlo Thomas." Based upon that evidentiary exhibit, which included a demonstration of the use of the SURE system by the parties for stipulations regarding challenged signatures, this Court determined that the signature was not valid because none of the persons with the identified name had the address listed on the circulation sheet as the address of the alleged voter.

Because we conclude that an amendment should be allowed, we will strike that particular signature as invalid for failure to match the address on the petition with the address of a registered voter. The Objectors' request for further amendments of signatures of this type is granted and, the Court notes, that any addresses on the petition that fail to match an address on registration records will be found to be invalid at any hearing in this case pursuant to our Supreme Court's opinion in In re Nomination Petition of Mary Flaherty, 564 Pa. 671, 770 A.2d 327 (2001).

b. Incorrect Addresses

The Objectors also seek to amend challenges to signatures where they first alleged that signatures were invalid because official registration records could not be located for a registered voter with the name indicated. Later investigation showed that the signer was registered, but not at the address listed on the petition. Thus, at the above-noted hearing and argument on August 30, the Objectors used the SURE system to demonstrate by example that the signature of someone whose first name is recognizable as "Clayton," but whose last name was illegible but began with the letter "D," could have been one of four registered persons in Philadelphia County, but none of the addresses listed for that name included the clearly identifiable address on the nomination petition. For the reasons stated above, the Court will grant the motion to amend the objection, strike this signature, and again we note that all such signatures will be similarly invalid if presented at an evidentiary hearing before the Court.

Qualified Elector or Registered Voter?

Candidate notes throughout his amended response to the Objectors' amended Motion that the Objectors are wrong to rely upon invalid voter registration to discredit signers in calculating the number of signatures necessary to place the Candidate on the ballot. The Candidate argues that, under Section 951(c) of the Election Code, 25 P.S. § 2911(c), the signers need only be "qualified electors," rather than registered voters. The Candidate also relies upon the dissenting statement of Justice Saylor in In re Nader, 580 Pa. 134, 860 A.2d 1 (2004).4

The General Assembly, in addressing the...

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