Working Families Party v. Commonwealth, 060519 PASC, 34 EAP 2017

Docket Nº:34 EAP 2017
Opinion Judge:MUNDY JUSTICE
Party Name:WORKING FAMILIES PARTY, CHRISTOPHER M. RABB, DOUGLAS B. BUCHHOLZ, AND KENNETH G. BEISER, Appellants v. COMMONWEALTH OF PENNSYLVANIA, ROBERT TORRES, IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA AND JONATHAN M. MARKS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER, BUREAU OF COMMISSIONS, ELECTIONS AND LEGISLATION, DE...
Judge Panel:SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. Chief Justice Saylor and Justices Baer and Dougherty join the opinion. TODD JUSTICE Justice Donohue joins this concurring and dissenting opinion. WECHT JUSTICE Justice Donohue joins the concurring and dissenting opinion.
Case Date:June 05, 2019
Court:Supreme Court of Pennsylvania
 
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WORKING FAMILIES PARTY, CHRISTOPHER M. RABB, DOUGLAS B. BUCHHOLZ, AND KENNETH G. BEISER, Appellants

v.

COMMONWEALTH OF PENNSYLVANIA, ROBERT TORRES, IN HIS OFFICIAL CAPACITY AS ACTING 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, Appellees

No. 34 EAP 2017

Supreme Court of Pennsylvania

June 5, 2019

ARGUED: September 25, 2018

Appeal from The Order of Commonwealth Court entered on September 18, 2017 at No. 435 MD 2016.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

MUNDY JUSTICE

In this direct appeal from an order of the Commonwealth Court, we are asked to determine the constitutionality of provisions of the Election Code1 that prohibit fusion, the process by which two or more political organizations place the same candidate on the ballot in a general election for the same office.

In the April 26, 2016 primary election, Christopher M. Rabb (Rabb) secured the nomination of the Democratic Party as its candidate for Representative of the General Assembly's 200th Legislative District. Between July 18 and July 26, 2016, the Working Families Party (Working Families) circulated papers to also nominate Rabb as its candidate for the same race. On July 27, 2016, Working Families submitted the following documents to the office of Commissioner Jonathan M. Marks, Department of State, Bureau of Commissions, Elections and Legislation: nomination papers with 958 signatures of registered voters in the 200th Legislative District, Rabb's statement of financial interests, the appropriate filing fee, and a candidate affidavit through which Rabb struck the following language: [M]y 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 for Review, 8/5/16, at ¶ 25. He also added the following italicized text to the affidavit: 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.

Id.

The same day, Commissioner Marks issued a nomination paper rejection notice stating that Rabb had altered the statutory candidate affidavit. On July 29, 2016, Commissioner Marks issued an amended rejection notice indicating: The candidate altered the form of the statutory candidate affidavit. Subsequent to the Bureau's initial review, Bureau staff also noted during a review of its candidate list that the candidate's name was already presented by nomination petitions in the General Primary, which precludes the candidate from seeking the nomination of a political body pursuant to 25 P.S. §2911(e)(5).2

Id. at ¶ 29.

On August 5, 2016, Working Families, Rabb, and two unaffiliated registered voters who reside in the 200th Legislative District, Douglas B. Buchholz and Kenneth G. Beiser, (collectively "Appellants") filed an action against the Commonwealth, the Secretary of the Commonwealth Pedro A. Cortes and Commissioner Marks (hereinafter, the Commonwealth), challenging the Commissioner's rejection of Rabb's nomination papers. In Count I, they sought a declaratory judgment that Sections 634, 910, 951, 976, 979, 980 and 1406 of the Election Code, 25 P.S. §§ 2870, 2911, 2936, 2939, 2940, 2784, and 31563 violate various clauses of the federal and state constitutions. Id. At ¶¶ 34-40, 92-94. In Count II, they sought a writ of mandamus directing the Commonwealth to accept Rabb's nomination papers and to prepare a general election ballot listing Rabb as both the Democratic and Working Families candidate. Id. at 97-101.

Because there were no disputed issues of fact, the court directed the parties to file applications for summary relief. Oral argument was held before a panel of the Commonwealth Court, following which it denied Working Families' request for summary relief on Count II, having concluded that mandamus was an inappropriate means by which to test the constitutionality of a statute. Accordingly, by order dated September 30, 2016, it dismissed Count II of the petition for review. Argument on the parties' applications for summary relief on Count I (declaratory relief), was heard by the court en banc on February 8, 2017. On September 18, 2017, the Commonwealth Court denied Appellants' application for summary relief and granted the Commonwealth's cross-application for summary relief in a published opinion. Working Families Party et al. v. Commonwealth, 169 A.3d 1247 (Pa. Cmwlth. 2017) (en banc).

The court began by observing that fusion was commonly permitted by many states, including Pennsylvania, throughout the 19th and early 20th centuries. To counteract this, the General Assembly enacted the Election Code, which included the challenged anti-fusion statutes in order to remedy a practice known as "party-raiding," which the court defined as "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." Working Families Party, 169 A.3d at 1251 (citation omitted).

The Election Code divides political groups into two categories, political parties and political bodies. A political party is a group "whose candidates at the general election next preceding the primary polled in each of at least ten counties of the State not less than two per centum of the largest entire vote cast in each of said counties for any elected candidate, and polled a total vote in the State equal to at least two per centum of the largest entire vote cast in the State for any elected candidate[.]" 25 P.S. § 2831(a). A group that does not achieve this goal is labeled as a "political body." Id. § 2831(c). A political body cannot use the primary process to nominate candidates, but instead does so by collecting signatures. As noted above, Section 2911(e)(5) prohibits fusion by requiring the candidate of a political body to affirm that he or she is not presented as a candidate for another political body or party for that same election.4

Appellants conceded that the challenged statutes prohibit fusion in state-level races, but argued that a loophole exists based on this Court's decision in Appeal of Magazzu, 49 A.2d 411 (Pa. 1946). In the Appellants' view, Magazzu permits political parties to engage in fusion for state and federal legislative seats, but effectively bars political bodies from doing so.

In Magazzu, the appellee was a primary nominee for the Republican Party in a state house race, but did not prevail. The only potential Democratic nominee for that race was Milo Serfas. Magazzu, 49 A.2d at 412. When the primary votes were tallied on the Democratic side, it was discovered "Magazzu's name had been written or stamped upon the voting machine paper ballot in sufficient numbers to cause Magazzu to receive a substantial majority of the Democratic votes." Id. The Luzerne County Board of Elections refused to certify Magazzu as the winner of the Democratic primary, but a judge of the court of common pleas reversed. Upon further appeal by Serfas, this Court affirmed. We began by noting that the Election Code contains many anti-party raiding or anti-fusion provisions and they prohibit "a candidate to file petitions of more than one political party for the same office and the printing of the name of a candidate of more than one political party." Id. However, this Court concluded that the same prohibition did not apply to write-in votes, observing 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. Looking at other provisions of the Code, the Court observed that a write-in vote was explicitly authorized. Id. Therefore, the Court viewed the votes as valid and not barred by the anti-fusion provisions of the Code, and Magazzu was the proper winner of the Democratic primary.

Turning back to this case, the Commonwealth Court held that Magazzu did not support Appellants' position. In the court's view, "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...

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