In re Nomination Petition of Brown

• Decision Date: 26 March 2004
• Citation: 846 A.2d 783
• Parties: In re NOMINATION PETITION OF Jesse BROWN as Democratic Candidate for Office of Pennsylvania Third Senatorial District. Objection of Louis Agre and Shirley Kitchen.
• Court: Pennsylvania Commonwealth Court

846 A.2d 783

In re NOMINATION PETITION OF Jesse BROWN as Democratic Candidate for Office of Pennsylvania Third Senatorial District.

Objection of Louis Agre and Shirley Kitchen.

Commonwealth Court of Pennsylvania.

Heard March 12, 2004.

Decided March 26, 2004.

Publication Ordered April 28, 2004.

Louis S. Agre, Philadelphia, for petitioner.

Samuel C. Stretton, West Chester, for respondent.

OPINION BY Judge FRIEDMAN.

Louis Agre and Shirley Kitchen (Objectors) have filed a "Petition to Set Aside Nomination Petition" with respect to the Nomination Petition of Jesse Brown (Brown) as Democratic Candidate for Office of Pennsylvania Third Senatorial District (Nomination Petition). The Objectors maintain that Brown's Nomination Petition lacks the 500 valid signatures required to qualify Brown for the ballot.

By order dated February 27, 2004, this court scheduled a hearing for March 12, 2004. The order directed that, prior to the hearing, the parties meet with the Voter Registration Administrator at the Offices of Voter Registration to review each and every challenged signature. Following this review, the parties were to file a stipulation identifying: (1) the total number of signatures that Brown continues to claim are valid; (2) the total number of signatures the Objectors continue to challenge; (3) the total number of uncontested signatures remaining after the Objectors' challenges; and (4) for each and every signature which the Objectors continue to challenge, the basis for the objection by page number and line number.

The Objectors filed a stipulation stating: (1) the total number of signatures Brown continues to claim are valid is 574; (2) the total number of signatures the Objectors continue to challenge is 140; and (3) the total number of uncontested signatures remaining after the Objectors' challenges is 434. The Objectors filed an attachment listing the objections by page and line number and showing the basis for each challenge.¹ Brown filed a separate statement asserting that the Nomination Petition contains 767 signatures; Brown also filed an attachment listing the objections he still contests.

At the hearing, the parties stipulated that the Nomination Petition contained 767 signatures, 434 were valid, 252 were invalid and 81 were challenged. Upon further review of the 81 challenged signatures, it appeared that one was a duplicate.² Thus, there remained 80 challenges. Of these, the Objectors withdrew 42;³ the court ruled that 5 were valid;⁴ and the court ruled that 2 were invalid.⁵ Thus, the total number of valid signatures was 434 + 47 (42 withdrawn + 5 ruled valid) = 481, with 31 challenges reserved for judgment.

I. Not Registered in the District

Eighteen of the remaining objections allege that the signers of Brown's Nomination Petition are "not registered in the district." However, the Objectors agreed with Brown at the hearing that the signers are registered in the district.

A. Specificity

Nevertheless, the Objectors argued that the signers are not registered in the district as Democrats⁶ or at the address given on the Nomination Petition⁷ or both.⁸ The Objectors asserted that their "not registered in the district" objection encompasses these additional challenges. We disagree.

Section 977 of the Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 2937, states that a petition to set aside a nomination petition must "specifically" set forth the objections. This means that the allegations must state the specific grounds of invalidity so as to sufficiently advise the proposed candidate of the errors, so that he or she is in a position to present a defense. In re Duffy, 535 Pa. 286, 635 A.2d 111 (1993). In other words, the objections must be specific enough to give fair notice, which means that they must provide enough information to permit a reasonable person to ascertain the substance of the claimed deficiency and the proof that must be presented at the hearing to mount a defense. In re Bishop, 525 Pa. 199, 579 A.2d 860 (1990); In re Williams, 155 Pa.Cmwlth. 494, 625 A.2d 1279 (1993).

With respect to the Objectors' allegation that certain signers are "not registered in the district," section 908 of the Election Code provides, in pertinent part:

Each signer of a nomination petition ... shall declare therein that he is a registered and enrolled member of the party designated in such petition.... He shall also declare therein that he is a qualified elector ... of the political district therein named, in which the nomination is to be made or the election is to be held. He shall add his residence, giving city, borough or township, with street and number, if any ....

25 P.S. § 2868 (emphasis added). It is clear from the plain language of section 908 that (1) being registered in the appropriate party, (2) being registered in the political district and (3) adding one's residence to a nomination petition are three separate requirements. For that reason, we conclude that an objection stating only that a signer is "not registered in the district" does not sufficiently advise the proposed candidate to present a defense with respect to the signer's political party and residence.

B. Amendment of Objections

In the alternative, the Objectors requested leave to amend their "not registered in the district" objections to include a political party and/or a residence challenge.

It is true that this court has discretion to allow objections to be amended at the hearing. Stuski v. Lauer, 548 Pa. 338, 697 A.2d 235 (1997). In the exercise of that discretion, we keep in mind that: (1) there is a presumption that the signatures are valid;⁹ (2) the Objectors have the burden of proving otherwise;¹⁰ (3) the Election Code is to be construed so as not to deny a candidate the opportunity to run or deprive the electorate of the right to vote for the candidate of choice;¹¹ and (4) the protections offered by section 977 of the Election Code are not to be rendered nugatory, and the interests sought to be furthered are not to be defeated.¹²

1. Residence

With respect to a residence challenge, our supreme court has stated that, absent extraordinary circumstances, electors who declare a residence at an address different from the address listed on the registration card are not qualified electors at the time they sign a nomination petition, unless they have completed the removal notice required by statute. In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327 (2001). If allowed to amend, the Objectors would allege that, because the signers did not add their addresses to the Nomination Petition as they appear on the registrations, the signatures are invalid. However, Flaherty was decided before the enactment, in 2002, of the new Pennsylvania Voter Registration Act (Act), 25 Pa.C.S. §§ 1101-3302.

As to removal notices, section 1501(a)(5) of the Act states that a removal notice must be received or postmarked not later than 30 days before an election or, in the case of an illegible or missing postmark, within 5 days of the close of registration. 25 Pa.C.S. § 1501(a)(5). Section 1501(b)(2) of the Act states that a registered elector who removes his or her residence from one place to another within the same county and who has not yet filed a removal notice shall be permitted to vote once at the elector's former polling place if, at the time of signing the voter's certificate, the elector files a proper removal notice with the judge of election. 25 Pa.C.S. § 1501(b)(2). Finally, section 1901(d) of the Act states that the registration of a registered elector shall not be cancelled on the ground that the registered elector has changed residence unless specified statutory procedures are followed. 25 Pa. C.S. § 1901(d).

We will not allow the amendment because to do so would be pointless. Indeed, even if we were to allow the amendment, the addresses challenged here as different from those shown on the registrations would have no legal effect on the signers' status as a qualified and registered elector within the political district. Id. Moreover, the different addresses do not prevent the signers from voting at their former polling places in the primary election. Thus, Brown would prevail.¹³

2. Political Party

With respect to a political party challenge, section 908 of the Election Code requires that the signer of a candidate's nomination petition declare at the time of signing that he or she is registered in the party of the candidate. 25 P.S. § 2868. If allowed to amend, the Objectors would allege, and would have to prove, that the signers were not registered Democrats at the time of signing; thus, their signatures are invalid.

Initially, we note that, because the parties were unable to meet prior to the hearing and to present a meaningful stipulation to the court, the parties attempted to short-cut the presentation of evidence at the hearing by the presentation of joint exhibits. While this court was open-minded about the allowance of the amendments, the parties accepted that the hearing was the time to present all evidence and to make all legal argument in support of, or in opposition to, the validity of the challenged signatures.

If Brown had notice that the Objectors would be challenging the signers' party affiliation, Brown would have had an opportunity to mount a defense, where appropriate, against the Objectors' party challenges by presenting proof that the signers were registered Democrats when they signed the petition but, afterwards, changed their party affiliation from Democrat to another political party.¹⁴ If we were to allow the Objectors to amend their objections to include a party challenge, we would deprive Brown of an opportunity to present such a defense. Thus, we will not allow the amendment.

Moreover, we note that the Objectors presented no evidence at the hearing to establish the party affiliation of the signers at the time they signed the petition....