In re Vodvarka

• Decision Date: 30 March 2016
• Docket Number: No. 126 M.D. 2016,126 M.D. 2016
• Citation: 135 A.3d 246
• Parties: In re: Nomination Petition of Joseph VODVARKA as a Candidate of the Democratic Party for the UNITED STATES SENATE IN the PRIMARY ELECTION OF APRIL 26, 2016. Petition of: Joseph A. Sestak, Jr.
• Court: Pennsylvania Commonwealth Court

135 A.3d 246

In re: Nomination Petition of Joseph VODVARKA as a Candidate of the Democratic Party for the UNITED STATES SENATE IN the PRIMARY ELECTION OF APRIL 26, 2016. Petition of: Joseph A. Sestak, Jr.

No. 126 M.D. 2016

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 18, 2016.

Decided March 30, 2016.

J. Manly Parks, Philadelphia, for petitioner.

Paul A. Rossi, Mountville, for respondent.

BEFORE: MARY HANNAH LEAVITT, President Judge, and RENÉE COHN JUBELIRER, Judge, and ROBERT SIMPSON, Judge, and P. KEVIN BROBSON, Judge, and PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge, and MICHAEL H. WOJCIK, Judge.

OPINION BY Judge P. KEVIN BROBSON

.

Before this Court is a petition filed by Joseph A. Sestak, Jr. (Objector or Sestak), to set aside the nomination petition of Joseph Vodvarka (Candidate or Vodvarka) as a Democratic Party candidate for the United States Senate. Candidate seeks to appear on the ballot in the primary election scheduled for April 26, 2016. Objector contends that Candidate's nomination petition lacks the minimum number of valid signatures required by law to appear on the primary election ballot. The parties have filed a Stipulation of Facts (Stipulation) and a memorandum of law or brief in support of their respective positions. Upon consideration of the same, and for the reasons set forth below, we grant Objector's petition to set aside Candidate's nomination petition.

To appear on the primary election ballot as a candidate for the office of United States Senator, Section 912.1(2) of the Pennsylvania Election Code (Election Code)¹ requires 2,000 valid signatures of registered electors who are members of the party whose nomination is sought. Candidate filed with the Department of State a nomination petition, consisting of 137 pages and purporting to contain 2,744 signatures. Objector, in his petition to set aside, challenged numerous individual signatures on Candidate's nominating petition as invalid for a variety of reasons. Pursuant to this Court's scheduling and case management order, the parties reviewed each and every challenged signature line and entered into the Stipulation.

The parties stipulated that, after striking certain signatures by agreement, 2,186 signatures remain on the nomination petition.² The parties also stipulated, as follows:

4. Of the remaining 2,186 entries on the Vodvarka Nomination Petition, 461 entries contain a name and signature matching that of a [ ] person registered to vote in the county reflected on the Petition page containing the entry, but the address provided in the entry does not match the address on record in the SURE ^[3] system for the individual of that name.... [T]hese 461 entries ... are generally referred to by the parties as the ‘NRA entries' (“NRA” meaning Not Registered at the Address set forth on the Petition)....

5. The treatment of the 461 NRA entries presents a common and singular question of law for the Court, and the Court's determination of that question of law shall be determinative of the viability of every entry in the group. If the Court accepts Objector Sestak's contention that the NRA entries are defective, then the Vodvarka Nomination Petition will not contain a sufficient number of valid signatures to enable Vodvarka to qualify for the ballot. In that event, the Vodvarka Nomination Petition shall be stricken and Vodvarka shall not appear on the ballot as a candidate for the nomination of the Democratic Party for U.S. Senate in the upcoming Primary Election on April 26, 2016.

6. Of the remaining 2,186 entries on the Vodvarka Nomination Petition, 220 entries contain a name, signature, and street address matching that of an individual registered to vote in the county reflected on the Petition page containing the entry, but the place set forth in the ‘City, Boro or Twp.’ section of the entry does not match the political subdivision on record in the SURE system for the individual of that name and street address.... [T]hese 220 entries ... are generally referred to by the parties as the ‘MUN entries' (‘MUN’ meaning the entry sets forth the wrong MUNicipality)....

7. The treatment of the 220 MUN entries presents a common and singular question of law for the Court, and the Court's determination of that question of law shall be determinative of the viability of every entry in the group. If the Court accepts Objector Sestak's contention that the MUN entries are defective, then the Vodvarka Nomination Petition will not contain a sufficient number of valid signatures to enable Vodvarka to qualify for the ballot. In that event, the Vodvarka Nomination Petition must be stricken and Vodvarka shall not appear on the ballot as a candidate for the nomination of the Democratic Party for U.S. Senate in the upcoming Primary Election on April 26, 2016.

(Stip. ¶¶ 4–7.)⁴ In order to dispose of the above-described objections, the parties further stipulated to waive their right to an evidentiary hearing, agreeing instead to have the legal issues submitted to the Court on briefs and without oral argument for disposition on the stipulated facts. (Stip. ¶ 10.)

The two legal issues for consideration by this Court are as follows: (1) whether the NRA signatures must be stricken because the signer's address does not match the address listed in the voter registration records, even though the parties agree that the signature on the nomination petition matches the signature on the voter registration record;⁵ and (2) whether an elector's signature may be stricken from a nomination petition when the elector uses the address set forth in his voter registration record instead of setting forth his street address and municipality.

At the outset, we begin our analysis by noting that the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600

–3591 (Election Code), is to “be liberally construed so as not to deprive an individual of his right to run for office or the voters of their right to elect the candidate of their choice.” In re Nomination Petition of Wesley, 536 Pa. 609, 640 A.2d 1247, 1249 (1994). A party alleging defects in a nomination petition has the burden of proving such defects. In re Johnson, 509 Pa. 347, 502 A.2d 142, 146 (1985). The placement of this burden on an objector recognizes that there is a presumption that the signatures on a petition are valid. In re Creighton, 899 A.2d 1166, 1168 (Pa.Cmwlth.) (Leavitt, J.), aff'd per curiam, 586 Pa. 652, 896 A.2d 583 (2006).

Section 907 of the Election Code, 25 P.S. § 2867

, provides, in part, that persons who sign a nomination petition must be “duly registered and enrolled members of” the same party as the candidate and be “qualified electors of the State, or of the political district, as the case may be, within which the nomination is to be made or election is to be held.” Section 908 of the Election Code, 25 P.S. § 2868, provides, in part, that a person signing a nomination petition

shall add his residence, giving city, borough or township, with street and number, if any, and shall legibly print his name and add the date of signing, expressed in words or numbers: Provided, however, That if the said political district named in the petition lies wholly within any city, borough or township, or is coextensive with same, it shall not be necessary for any signer of a nomination petition to state therein the city, borough or township of his residence.

With regard to the first legal issue, the parties' positions may be summarized as follows. Objector contends that absent extraordinary circumstances, which Candidate must prove, the NRA entries must be stricken as invalid. Objector relies on the Pennsylvania Supreme Court's decisions in In re Nomination Petition of Flaherty, 564 Pa. 671, 770 A.2d 327 (2001)

, and In re Nomination Papers of Nader, 580 Pa. 22, 858 A.2d 1167 (2004), and this Court's reported single-judge opinion In re Nomination Petition of Vodvarka, 994 A.2d 25 (Pa.Cmwlth.2010) (Leavitt, J.).⁶

^,7 Candidate contends that if the elector's signature on the nomination petition matches a signature on the voter registration record, then that signature can be counted as valid, provided that the elector is otherwise qualified, notwithstanding the discrepancy in address. Candidate maintains that nothing in the Election Code requires a signer to record on a nomination petition the address at which he resided at the time that he executed his voter registration application. It only requires that he write his current residence. Moreover, because he is seeking to be placed on the ballot for a federal office, Candidate argues that the National Voter Registration Act of 1993, 42 U.S.C. §§ 1973gg–1 to 1973gg–10, transferred to 52 U.S.C. §§ 20501 –20511 (NVRA), controls and limits the circumstances under which a State may remove a registered voter from registration rolls. Candidate cites the United States Court of Appeals for the Third Circuit decision in Welker v. Clarke, 239 F.3d 596 (3d Cir.2001), which upheld an injunction against Pennsylvania election officials for enforcing provisions of the Election Code that conflicted with the NVRA for federal elections. According to Candidate, any continued reliance on Flaherty with regard to the issue now before the Court is misplaced.

Our analysis begins with Flaherty. In Flaherty, the Supreme Court considered the question of whether signatures on a nomination petition must be struck where the address provided by the signatory did not match that of any person by that name in the voter registration records of the signatory's county of residence and determined such entries to be invalid. The Supreme Court held that “absent extraordinary circumstances, electors who declare a residence at an address different than the address listed on their voter registration card are not qualified electors at the time they sign a nomination petition unless they have completed the removal notice required by the [Pennsylvania] Voter Registration Act [ (PVRA) ].^[...