[J-61-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
WORKING FAMILIES PARTY, : No. 34 EAP 2017
CHRISTOPHER M. RABB, DOUGLAS B. :
BUCHHOLZ, AND KENNETH G. BEISER, : Appeal from The Order of
: Commonwealth Court entered on
Appellants : September 18, 2017 at No. 435 MD
: 2016.
:
v. : ARGUED: September 25, 2018
:
:
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 :
OPINION
JUSTICE MUNDY DECIDED: June 5, 2019
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
1 Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
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.
[J-61-2018] - 2
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-
2Section 951(e)(5) of the Election Code provides that the candidate shall append to each
nomination paper an affidavit stating “that his 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 has he been nominated by any other nomination papers filed for any
such office.” 25 P.S. § 2911(e).
3 Each of these sections effectively ensure that cross-nominations do not occur. Sections
634 and 910 of the Election Code, 25 P.S. §§ 2870 and 2911, require all candidates to
file an affidavit that they have not received any other nominations. Section 976 of the
Election Code, 25 P.S. § 2936 requires the Secretary of the Commonwealth to reject any
nomination petitions if the nominee in question has already been nominated by another
entity. Sections 979 and 980 of the Election Code, 25 P.S. §§ 2939 and 2940 prohibit
[J-61-2018] - 3
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
any political entity, in the event of a vacancy on the ballot, from nominating any substitute
candidate who has already been nominated. Section 634 of the Election Code, 25 P.S.
§ 2784 imposes this same requirement for special elections. Section 1406 of the Election
Code, 25 P.S. § 3156, prohibits the aggregate tabulation of votes for the same candidate
who appears more than once on the same ballot for the same race.
[J-61-2018] - 4
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
4 As noted above, the Commonwealth Court pointed out that the Election Code also
prohibits political parties from engaging in fusion as well. See generally 25 P.S. §§ 2870,
2939.
[J-61-2018] - 5
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 belongs.” Working Families
Party, 169 A.3d at 1254-55 (internal quotation marks and citation omitted). The court
further observed that a political body may accomplish the same objective. Id. at 1255.
Therefore, the court disagreed that Magazzu had created a “loophole” in the anti-fusion
statutes.
The court next turned to Appellants’ only federal constitutional challenge.
Appellants alleged that the anti-fusion statutes violate the Equal Protection Clause of the
Fourteenth Amendment insofar that they have a disparate impact on political bodies
[J-61-2018] - 6
versus political parties. Specifically, Appellants averred that in practice, the statutes
impose a legal disability on political bodies by making it more difficult for them to fuse
their candidates. A major political party can nominate a candidate in a primary and then
simultaneously launch a write-in campaign for the other major party’s nomination. The
Commonwealth Court acknowledged that the process for political bodies was different.
To nominate its own candidate, a political body must file its nomination papers before
August 1, but to also have that same candidate appear on the ballot for a major party as
a write-in candidate, he or she must file the appropriate nomination papers before the
primary election, which is typically scheduled for the third Tuesday in May. Id. at 1255-
56; see also 25 P.S. § 2753(a).
The court rejected the Appellants’ argument that the anti-fusion statutes create a
legislative classification implicating the fundamental right to vote, which in its view would
trigger strict scrutiny. Relying on this Court’s opinion in In re Street, 451 A.2d 427 (Pa.
1982),5 the court observed that the anti-fusion statutes as written were facially neutral and
did not create a legislative classification of any kind, since they applied to both political
parties and political bodies. Working Families Party, 169 A.3d at 1258.
In Street, the appellant was a third-party candidate for a congressional race,
nominated by the self-titled “Milton Street Party.” Street, 451 A.2d at 427. Subsequent
to Street’s nomination, the Republican candidate who had won the primary withdrew from
the race. Id. Street sought to substitute his name for the withdrawn candidate on the
Republican ticket. Id. All parties acknowledged that this violated 25 P.S. § 2939 which,
as noted above, prohibits any political entity from filling a ballot vacancy with a substitute
candidate who has already been nominated by another entity. Id. at 428. However, Street
5Although Street bears the title “Opinion,” it is a plurality. Two Justices joined the opinion,
one Justice concurred in the result, and three Justices dissented.
[J-61-2018] - 7
contended this violated the First Amendment and the Equal Protection Clause of the
Fourteenth Amendment. We held that the Election Code’s anti-fusion statutes were
facially neutral as written and that treating political parties and political bodies differently
did not amount to an equal protection violation. Id. at 431. Specifically, we observed that
“political parties and political bodies are treated equally: neither may nominate, either
initially or through substitution, a candidate for the general election who has already been
nominated by another political group.” Id. Although the Commonwealth Court
acknowledged that Street only discussed Section 2939, it viewed Street as dispositive of
Appellants’ equal protection claim as to all of the anti-fusion statutes. Working Families
Party, 169 A.3d at 1259.
The court also rejected Appellants’ reliance on Reform Party of Allegheny Cnty. v.
Allegheny Cnty. Dep’t of Elections, 174 F.3d 305 (3d Cir. 1999), which concerned other
provisions of the Election Code allowing fusion by major political parties in local races but
explicitly prohibiting minor political parties from doing the same. The court reasoned that
the provisions at issue were not facially neutral, whereas the anti-fusion provisions at
issue in this case were facially neutral. Working Families Party, 169 A.3d at 1259. The
court also noted that the Third Circuit did not apply strict scrutiny, as Appellants argue
here, but rather applied intermediate scrutiny. Id. The court appeared to agree this was
the correct level of review, as it further concluded the Commonwealth provided a
justification for the burden that meets the intermediate standard of review applied in
Reform Party. Id. Based on these considerations, the Commonwealth Court concluded
Appellants’ equal protection issue lacked merit.
[J-61-2018] - 8
The court next turned to Appellants’ state constitutional claims, electing to first
address their free speech and association rights claims together.6 The court
acknowledged that these are fundamental rights and that our state charter may afford
greater protection than the First Amendment. Working Families Party, 169 A.3d at 1260.
However, the court criticized Appellants for not conducting an analysis pursuant to
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), to explain why the state
constitution should grant higher speech and associational protections in this case.
Working Families Party, at 1262.7 Therefore, the court relied strictly on First Amendment
standards.
The court then considered Street, in which this Court concluded that the First
Amendment does not prohibit the General Assembly from enacting anti-fusion statutes.
Specifically, we observed the following.
While the right to associate for the advancement of political
beliefs includes the right to advance a candidate who
represents those interests, the ‘ballot access’ cases of the
United States Supreme Court make it clear that the right of
association does not encompass the right to nominate as a
candidate a particular individual who fails to meet reasonable
eligibility requirements.
6 The Free Speech Clause states that “[t]he free communication of thoughts and opinions
is one of the invaluable rights of man, and every citizen may freely speak, write and print
on any subject, being responsible for the abuse of that liberty.” PA. CONST. art. I, § 7, cl.
2. The Association Clause states “[t]he citizens have a right in a peaceable manner to
assemble together for their common good, and to apply to those invested with the powers
of government for redress of grievances or other proper purposes, by petition, address or
remonstrance.” Id. at art. I, § 20.
7 In Edmunds, we explained that where a party seeks to have this Court decide an issue
based on a provision of the Pennsylvania Constitution, “it is important that litigants brief
and analyze at least the following four factors: 1) the text of the Pennsylvania
constitutional provision; 2) history of the provision, including Pennsylvania case-law; 3)
related case-law from other states; 4) policy considerations, including unique issues of
state and local concern, and applicability within modern Pennsylvania jurisprudence.”
586 A.2d at 895.
[J-61-2018] - 9
Street, 451 A.2d at 432.
The court then noted that the decision of the Supreme Court of the United States
in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) was instructive. In
Timmons, the Court considered Minnesota’s anti-fusion statutes and whether they
violated the expressive associational rights protected by the First Amendment. The Court
held that while a political party has the right to select the candidate of its choice, “[t]hat a
particular individual may not appear on the ballot as a particular party’s candidate does
not severely burden that party’s associational rights.” Timmons, 520 U.S. at 359.
With respect to the instant matter, the court held that the Commonwealth had
offered an important regulatory interest sufficient to justify the anti-fusion statutes.
Specifically, the Commonwealth Court posited that “[i]f fusion were permitted, Rabb’s
name, for example, would have appeared on the general election ballot with the
designation ‘Democratic Party/Working Families Party.’” Id. at 1263. The court continued
that Rabb “would not appear twice, i.e., once as a candidate of the Democratic Party and
again as a candidate of the Working Families Party.” Id. Because the Election Code
does not contain a mechanism for apportioning vote tallies, the court concluded that “it
would be impossible to determine whether the support for the candidate came from the
votes of the political party or from the political body.” Id. The Commonwealth Court
observed that “[t]he Election Code designates a political organization as either a political
party or a political body based on [the percentage of votes obtained] in the preceding
general election.” Id.; see also generally 25 P.S. § 2831. Therefore, the court noted the
importance of the Commonwealth’s ability to determine which candidates are supported
by how many voters.
The court continued that the anti-fusion statutes also serve an important interest
of protecting the general election representation of third parties. The court posited that
[J-61-2018] - 10
“[i]f fusion were permitted, members of a major political party could, during and after the
primary election, circulate nomination papers to name the major party’s nominated
candidate as the nominee of a political body without the consent of any members of the
political body.” Id. In the court’s view, because political parties have superior resources
and manpower, the parties could easily impersonate a political body and submit its
candidate under a third party’s name, just as long as the major party is the first to file its
papers with the Secretary of the Commonwealth. Id. at 1264. The court held this would
result in fewer candidates appearing on the ballot overall. Id. Based on these
considerations, the Commonwealth Court concluded the anti-fusion statutes did not
violate the speech or expressive association rights of the Pennsylvania Constitution.
The Commonwealth Court next addressed Appellants’ argument under the Free
and Equal Elections Clause.8 The Appellants’ position was that “the anti-fusion provisions
of the Election Code deny voters the right to have their vote counted in a way that reflects
their true party preference.” Id. Stated another way, Appellants believed “that it is
imperative that representatives know the values of those who vote for them, and cross-
nomination enables some record of this by permitting members of political bodies to ‘vote
their values without wasting their votes.’” Id. The court observed that all voters have an
obvious right to cast their ballots and to have those ballots counted. However, the court
pointed out that in the general election for 2016, Rabb was indeed on the ballot for the
Democratic Party. Id. at 1265. Therefore, all members of Working Families Party who
voted in the 2016 election had the opportunity to vote for Rabb as their preferred
candidate for the state house.
8 The Free and Equal Elections Clause states, “[e]lections shall be free and equal; and
no power, civil or military, shall at any time interfere to prevent the free exercise of the
right of suffrage.” PA. CONST. art. I, § 5. The Commonwealth Court did not have the
benefit of our opinion in League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa.
2018) at the time of its decision.
[J-61-2018] - 11
Finally, the court rejected Appellants’ last contention that “the anti-fusion provisions
are a product of the major political parties’ effort to prevent the free exercise of the right
of suffrage.” Id. Appellants’ provided no evidence to support this notion and the court
observed “the ‘motive’ of an individual legislator voting on legislation is irrelevant to the
constitutionality of a collective work product.” Id. As it had addressed all of Appellants’
substantive arguments the court declined to further consider what it deemed to be
Appellants’ “bald assertions of legislative conspiracy.” Id. The Commonwealth Court
concluded none of Appellants’ claims had any merit. As a result, the court granted the
Commonwealth’s application for summary relief and denied Appellants’ application for
summary relief.
Judge Cosgrove filed a dissenting opinion expressing his disagreement with the
majority’s treatment of Magazzu. While recognizing that anti-fusion statutes are
constitutional, he asserted that “Magazzu makes an exception for candidates who are
nominated by the opposing party through the write-in process. As a result, . . . a major
party may, through the write-in process, nominate a candidate who has also filed petitions
seeking the nomination of the other major party.” Id. at 1266. Judge Cosgrove
concluded that the Majority’s observation that all parties may mount write-in campaigns
misses the point because “unlike the major parties, the minor parties/political bodies
cannot employ the nominating process to which they are relegated (i.e. collection of a
high number of signatures necessary to place their candidate on the general election
ballot) for a candidate who had also submitted nominating petitions for one of the major
parties during the primary.” Id. at 1267. Judge Cosgrove opined that this distinction
violates equal protection under the Fourteenth Amendment.
The dissent also disagreed with the Majority’s conclusion that Reform Party was
inapposite because the statute in that case treated major and minor parties differently,
[J-61-2018] - 12
while the statutes at issue in this matter were party neutral. In Judge Cosgrove’s view,
that “does not excuse the Election Code’s constitutional impairment vis-à-vis minor
political parties and political bodies since it was the disparate treatment of these
organizations as compared to major parties which Reform Party condemned.” Id. at 1267.
Appeal to This Court
On October 17, 2017, Appellants filed a notice of appeal to this Court from the
order of the Commonwealth Court dated September 18, 2017, denying Appellants’
application for summary relief and granting the Commonwealth’s cross-application for
summary relief. They filed a jurisdictional statement citing to Section 723(a) of the Judicial
Code, which provides, in relevant part, “[t]he Supreme Court shall have exclusive
jurisdiction of appeals from final orders of the Commonwealth Court entered in any matter
which was originally commenced in the Commonwealth Court.” 42 Pa.C.S. § 723(a). On
December 6, 2017, this Court issued an order noting probable jurisdiction and directing
Appellants to address whether the notice of appeal was timely pursuant to Pennsylvania
Rule of Appellate Procedure 903(c)(1)(ii), which provides, in relevant part, “(c)
Notwithstanding any other provision of this rule: (1) An appeal from any one of the
following orders shall be taken within ten days after the entry of the order from which the
appeal is taken: . . . (ii) an order in any matter arising under the Pennsylvania Election
Code.” Pa.R.A.P. 903(c)(1)(ii).
Appellants note that Count 1 of their petition filed in the Commonwealth Court
sought a declaratory judgment that the fusion ban violates the Pennsylvania and United
States Constitutions. Appellants’ Brief at 57. Count II sought a writ of mandamus
directing the Commonwealth to accept Rabb’s nomination papers and to prepare a ballot
reflecting his nomination by both the Working Families Party and the Democratic Party.
[J-61-2018] - 13
Id. The instant appeal is limited to the constitutional issues addressed in the declaratory
judgment action, and does not “arise under” the Election Code because it does not seek
the enforcement, interpretation or application of the Code. Rather, the issue is the
constitutionality of the Code. By way of comparison, where objections are filed to a
nomination petition or paper, the court must schedule a hearing no later than ten days
after the last day for filing the nomination petition or paper, and shall issue a final
determination no later than fifteen days after the last day for filing such petition or paper.
See Section 977 of the Election Code, 25 P.S. § 2937. Such an order is subject to the
ten-day appeal period of Rule 903(c)(1)(ii), which is consistent with the expedited process
for challenges under the Election Code. Because the instant action sought as relief a
determination that the challenged sections of the Election Code were unconstitutional,
the thirty-day appeal period for a declaratory judgment matter is appropriate. Accordingly,
the instant appeal was timely filed.
Free and Equal Elections Clause
As a preliminary matter, we note:
It is axiomatic that: “[A]ny party challenging the
constitutionality of a statute must meet a heavy burden, for we
presume legislation to be constitutional absent a
demonstration that the statute ‘clearly, palpably, and plainly’
violates the Constitution.” Konidaris v. Portnoff Law
Associates, Ltd., 953 A.2d 1231, 1239 Pa. (2008) (citation
omitted). The presumption that legislative enactments are
constitutional is strong. Commonwealth v. McMullen, 961
A.2d 842, 846 (2008); see also 1 Pa.C.S. § 1922(3) (in
ascertaining intent of General Assembly in enactment of
statute, presumption exists that General Assembly did not
intend to violate federal and state constitutions). All doubts
are to be resolved in favor of finding that the legislative
enactment passes constitutional muster. Pennsylvanians
Against Gambling Expansion Fund, Inc. v. Commonwealth, ,
877 A.2d 383, 393 (2005). Moreover, “statutes are to be
[J-61-2018] - 14
construed whenever possible to uphold their constitutionality.”
In re William L., 383 A.2d 1228, 1231 (1978).
DePaul v. Commonwealth, 969 A.2d 536, 545-46 (Pa. 2009).
Appellants first assert in this Court that the ban on cross-nomination by political
bodies violates the Free and Equal Elections Clause of the Pennsylvania Constitution.
They note that in League of Women Voters, supra, this Court stated:
The broad text of the first clause of this provision mandates
clearly and unambiguously, and in the broadest possible
terms, that all elections conducted in this Commonwealth
must be “free and equal.” In accordance with the plain and
expansive sweep of the words “free and equal,” we view them
as indicative of the framers’ intent that all aspects of the
electoral process, to the greatest degree possible, be kept
open and unrestricted to the voters of our Commonwealth,
and, also, conducted in a manner which guarantees, to the
greatest degree possible, a voter’s right to equal participation
in the electoral process for the selection of his or her
representatives in government. Thus, Article I, Section 5
guarantees our citizens an equal right, on par with every other
citizen, to elect their representatives. Stated another way, the
actual and plain language of Section 5 mandates that all
voters have an equal opportunity to translate their votes into
representation.
League of Women Voters, 178 A.3d at 804. Furthermore, “[t]he Free and Equal Elections
Clause was specifically intended to equalize the power of voters in our Commonwealth’s
elections process, and it explicitly confers this guarantee[.]” Id. at 812.
Appellants note that since 2002, at least 101 candidates have received the
nomination of both major parties while during the same period, no political body or minor
party (PBMP) candidate has been cross-nominated with another PBMP or major party
candidate. Appellants’ Brief, at 24. They attribute this to the relatively straightforward
process for cross-nomination available to a major party candidate. For example, a
[J-61-2018] - 15
Democratic candidate for the state legislature who appears on the ballot in the party’s
primary, can also encourage voters in the Republican primary to write in his name. If the
candidate wins both primaries, he will appear on the general election ballot as the
candidate of both parties, with votes cast on both lines counting toward the candidate’s
total against any third party challengers. In contrast, a PBMP that wants to cross-
nominate a major party candidate pursuant to Magazzu must follow a much more
complicated path. Any major party candidate chosen by the PBMP would have to
renounce his party membership at least thirty days before the primary and agree not to
circulate nominating petitions during the petition circulation period. The chosen candidate
and the PBMP would then have to satisfy the signature requirements for nomination by a
PBMP in the ten weeks before the primary election. Once the nomination papers are
accepted by the Department of State, the PBMP would have to wage a write-in campaign
for the major party candidate who chose to forego participating in the major party‘s
primary by seeking the PBMP nomination. Id. at 25-26.
While Appellants acknowledge that the anti-fusion statutes apply equally to major
party and PBMP candidates, they argue that in practice, combined with Magazzu, the
statutes work to the disadvantage of PBMP candidates. Id. at 27. They maintain that the
nomination process for candidates is an essential part of the electoral process, and
therefore must be “kept open and unrestricted to the voters of our Commonwealth.”
League of Women Voters, 178 A.3d at 804. Accordingly, the process must be “conducted
in a manner which guarantees, to the greatest degree possible, a voter’s right to equal
participation in the electoral process.” Id. Appellants argue that, “[w]hile a major political
party can choose as its nominee the candidate of another major political party, a PBMP
cannot do so.” Appellant’s Brief, at 28. This, they assert, is contrary to Article I, Section
5 because it deprives them of “an equal opportunity to translate their votes into
[J-61-2018] - 16
representation.” League of Women Voters, 178 A.3d at 804. They further argue that the
limits on fusion entrench the power of the major political parties and dilute the votes of
members PBMPs. Appellants’ Brief at 28-29.
Appellants also criticize the Commonwealth’s contention that the anti-fusion
statutes protect PBMPs from major political parties. Id. at 33. Rather, if a major political
party attempts to manipulate the nomination process by nominating its own candidate
under the name of a PBMP, the PBMP already has an existing remedy available in the
form of objections to nomination papers under Section 977 of the Code, 25 P.S. § 2937.
Id. at 35-36. Because the Code already provides this protection to PBMPs, the anti-fusion
provisions are not necessary to protect the interests of PBMPs.
The Commonwealth counters that League of Women Voters is inapposite to this
case in several respects, notably because the anti-fusion provisions are neutral and did
not discriminate against the Working Families Party or its members’ right to vote.
Commonwealth’s Brief at 33. The Commonwealth emphasizes that Rabb was on the
ballot for any members of the Party who wished to vote for him, regardless of whether his
name appeared under the designation of the Democratic Party or another party.
Therefore, the Commonwealth argues that there is no vote dilution by operation of the
anti-fusion statutes. Relying primarily on Street, the Commonwealth emphasizes that the
anti-fusion statutes are themselves politically neutral on their face, applying equally to
major and third parties. Id. at 34. In the Commonwealth’s view, the Party was free to
endorse Rabb, campaign for him and contribute money to his candidacy. Id.
The Commonwealth also characterizes Appellants’ heavy reliance on Magazzu as
a “red herring.” Id. at 35. In its words, “[t]he fact that this Court recognized a limited
judicial exception to the Legislature’s anti-fusion provisions in Magazzu simply does not
support the broader proposition that anti-fusion requirements violate the [Elections
[J-61-2018] - 17
Clause] of the Pennsylvania Constitution in all cases.” Id. The Commonwealth posits
that if Appellants prevail, two things would occur. First, fusion “would make it impossible
to calculate the true number of votes for the Working Families Party, essentially rendering
meaningless the percentage-based vote-calculations set forth in 25 P.S. § 2831.” Id. at
38. The Commonwealth also argues that fusion would actually hurt third parties by
permitting the two major parties to obtain the ballot position of third parties by simply
circulating nominating petitions for its candidate under the banner of as many third parties
as it could. Id. at 39. The Commonwealth views this as permitting the major parties “to
‘squeeze out’ the candidates of minor political parties and political bodies[,] leaving voters
with even fewer candidates to choose from.” Id. at 40.
In setting forth the history of the Free and Equal Elections Clause, this Court in
League of Women Voters cited Patterson v. Barlow, 60 Pa. 54 (1869), for the proposition
that “any legislative scheme which has the effect of impermissibly diluting the potency of
an individual’s vote for candidates for elective office relative to that of other voters will
violate the guarantee of “free and equal elections afforded by Article I, Section 5.” League
of Women Voters, 178 A.3d at 809. The Court also noted a case wherein we stated:
[E]lections are free and equal within the meaning of the
Constitution when they are public and open to all qualified
electors alike; when every voter has the same right as every
other voter; when each voter under the law has the right to
cast his ballot and have it honestly counted; when the
regulation of the right to exercise the franchise does not deny
the franchise itself, or make it so difficult as to amount to a
denial; and when no constitutional right of the qualified elector
is subverted or denied him.
Id. at 810 (quoting Winston v. Moore, 91 A. 520, 523 (Pa. 1914)).
The Court next discussed Shankey v. Staisey, 257 A.2d 897 (Pa. 1969), a case in
which:
[A] group of third-party voters challenged a Pennsylvania
election statute which specified that, in order for an
[J-61-2018] - 18
individual’s vote for a third-party candidate for a particular
office in the primary election to be counted, the total number
of aggregate votes by third-party voters for that office had to
equal or exceed the number of signatures required on a
nominating petition to be listed on the ballot as a candidate for
that office.
Id., at 812. With respect to a challenge under the Free and Equal Elections Clause, the
Shankey Court stated:
There seems no question as to ‘freedom’; each voter can vote
for whomever he chooses. The complaint is as to ‘equality’ -
that the statute wrongfully equates public petitions with secret
ballots so as to deny the ballots of people who voted for
[plaintiffs] the same weight as the ballots of people who voted
for major party candidates. The statute, however, promotes
‘equal’ elections by requiring every candidate who desires to
appear on the general electoral ballot to have satisfied the
same condition - the show of support by a set number of
people. This can be done by petition or by primary election
victory, and what is important is not that ballots and petitions
are equated but that the number of people behind each are
equated. Any other system would create unequal elections
by giving minority party candidates and their supporters the
advantage of not having to secure the same showing of public
support before being put on the ballot as required by a
majority party candidate.
Shankey, 257 A.2d at 899.
As this Court clearly articulated, “the overarching objective of [Article I, Section 5]
of our constitution is to prevent dilution of an individual’s vote by mandating that the power
of his or her vote in the selection of representatives be equalized to the greatest degree
possible with all other Pennsylvania citizens.” League of Women Voters, 178 A.3d at
817. Viewed from this perspective, Appellants have not established that their votes were
diluted by the ban against cross-nomination. Here, Appellants had the opportunity to
support and vote for the candidate of their choice in the 2016 general election. In no
sense were their votes diluted by the fact that Rabb appeared on the ballot only as the
[J-61-2018] - 19
candidate of the Democratic Party. Here, Appellants had “the same right as every other
voter,” and thus the foundational principle underlying Article 1, Section 5 is not offended.
See Winston, 91 A. at 523.
Appellants’ argument with respect to Magazzu does not warrant relief under the
Free and Equal Elections Clause. Magazzu stands for the unremarkable principle that a
successful write-in candidate may be declared the winner of a primary election. As
recognized by the Commonwealth Court, “[t]he potential for fusion by a successful write-
in campaign is not limited to major party candidates. The same may be accomplished by
a political body.” Working Families Party, 169 A.3d at 1265. Even in a situation where
one candidate appears on a ballot with two major party designations due to write-in votes
in a primary election, the Commonwealth Court correctly noted that voting rights in the
general election are not affected because “[a] voter supporting such a candidate is not in
a position superior to the voter casting his ballot for a candidate having a single political
designation. In such scenario the vote is counted once.” Id. at 1265.
Equal Protection
Appellants further assert that the fusion ban violates the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution. They aver that the
holding in Magazzu works in concert with the anti-fusion statutes to allow for cross-
nominations by major parties while effectively precluding PBMPs from doing the same in
light of the complicated path outlined above for PBMPs to fuse with major party
candidates in elections for legislative offices. Appellants’ Brief at 41.
In Street, this Court held that the anti-fusion provision of Section 979 of the Election
Code that prohibits a political party from substituting a candidate with a person who has
already been nominated for the same office by a political party or political body does not
[J-61-2018] - 20
offend equal protection. The Court further stated that “[u]nder Pennsylvania’s Election
Code . . ., political parties and political bodies are treated equally; neither may nominate,
either initially or through substitution, a candidate for the general election who has already
been nominated by another political group.” Street, 451 A.2d at 431. Accordingly, the
anti-fusion statutes are facially neutral.
Appellants rely on Reform Party, where the Third Circuit Court of Appeals
considered a challenge to sections of the Election Code which prevented:
minor political parties from cross-nominating a candidate for
certain local offices when that candidate has already been
nominated for the same office by another political party. The
major parties, however, are allowed to engage in cross
nomination or “fusion” for those local offices. As a
consequence, while Pennsylvania prohibits all parties from
cross-nominating the same person for most state offices, it
makes an exception for primary elections for five local offices,
in which major parties are permitted to cross-nominate each
other’s candidates, but minor parties are prohibited from so
doing.
Reform Party, 174 F.3d at 308. The court determined that an intermediate level of
scrutiny was appropriate for the equal protection claim, requiring it “to weigh, against the
burdens imposed, any plausible justification the State has advanced for imposing unequal
burdens on major and minor parties.” Id. at 315. The court stated that the burden
imposed by the statutes was “exacerbated because Pennsylvania has allowed the major
parties to cross-nominate but has disallowed minor parties from doing the same.” Id.
Noting that while the Commonwealth’s reasons for supporting the statutes might justify a
general ban on cross-nomination, they were “not sufficiently weighty to justify a ban that
discriminates between major and minor parties.” Id. at 316. Accordingly, the Third Circuit
Court of Appeals held that the prohibition against fusion by minor parties in local races
violated the right to equal protection under the Fourteenth Amendment.
[J-61-2018] - 21
In the instant matter the Commonwealth has suggested justifications supporting
the ban on fusion. It asserts that permitting fusion would cause considerable difficulties
in the election administration process because a political organization’s status as a
political party is determined, in part, based on its performance in the preceding general
election. 25 P.S. § 2831. Accordingly, each organization’s status expires every two
years. A political organization whose candidate receives two percent of the total votes
cast for any candidate who is elected, both statewide and in at least ten counties,
becomes a statewide political party. Id. § 2381(a). A political organization may also attain
party status at the county level by having one of its candidates receive five percent of the
vote in a given county at either the preceding general or municipal election. Id. § 2831(b).
The anti-fusion statutes are relevant to these calculations. A candidate who is nominated
by multiple political organizations, and who receives more than two percent of the vote,
or five percent in a county, could raise all organizations he is associated with to political
party status. The reason this does not occur is because the anti-fusion provisions
establish a link between a vote for a candidate and a vote for the candidate’s political
party or body. See Commonwealth’s Application for Summary Relief, 9/7/16, Exhibit A,
Declaration of Jonathan Marks, 9/2/16, at 10-11.
If fusion were permitted, Rabb’s name would appear once on the ballot next to the
party names “Democratic Party/Working Families Party;” it would not appear twice, once
next to Democratic Party and once next to Working Families Party. Because no
procedure exists in the Election Code to disaggregate the votes received by Rabb in his
capacity as the Democratic Party nominee and as the Working Families Party nominee,
the Department would be unable to determine what proportion of the votes cast for Rabb
should be allocated when making the five percent calculation to qualify the Working
Families Party as a political party in Philadelphia County. Id. at 11-12.
[J-61-2018] - 22
The anti-fusion provisions of the Election Code are facially neutral as they apply
equally to political parties and political bodies. Magazzu also applies equally to political
parties and political bodies, allowing them to accomplish fusion through write-in votes.
We agree with the Commonwealth Court’s conclusion that “[t]he right to vote is not
impacted by the anti-fusion provisions of the Election Code. Citizens of the
Commonwealth are free to cast their vote for their candidate of choice, by write-in or
otherwise.” Working Families Party, 169 A.3d at 1259. Even if we were to determine that
the Election Code and Magazzu work in concert to create a disparate impact on political
bodies, the justification for the anti-fusion provisions raised by the Commonwealth is
substantially related to an important governmental interest and therefore survives
intermediate scrutiny. See James v. Southeastern Pennsylvania Transportation
Authority, 477 A.2d 1302, 1307 (Pa. 1984).9
Article I, Sections 7 and 20 of the Pennsylvania Constitution
Appellants next raise claims under the Free Speech and Association Clauses of
the Pennsylvania Constitution. As noted above, the Free Speech Clause states that “[t]he
free communication of thoughts and opinions is one of the invaluable rights of man, and
9 We reject as speculative the Commonwealth’s argument that anti-fusion provisions
actually protect political bodies. They posit that during and after primary election
campaigns, a major party candidate backed by a strong organization could submit
nomination papers in the name of a political body without the consent of any of its
members. It notes that the Department accepts the first valid set of nomination papers
bearing the name of any political organization, and rejects any nomination papers
subsequently filed pursuant to Section 976, 25 P.S. § 2936 (No . . . nomination paper . .
. shall be permitted to be filed if . . . (g) . . . the appellation set forth therein is identical
with or deceptively similar to the words used by an existing party or by any political party
which has already filed nomination papers for the same office. . . . .). Thus, they assert
that the anti-fusion provisions prevent major parties from attempting to control the use of
the names of their competitors. See Commonwealth’s Application for Summary Relief,
9/7/16, Exhibit A, Declaration of Jonathan Marks, 9/2/16, at 8-9.
[J-61-2018] - 23
every citizen may freely speak, write and print on any subject, being responsible for the
abuse of that liberty.” PA. CONST. art. I, § 7, cl. 2. The Association Clause states “[t]he
citizens have a right in a peaceable manner to assemble together for their common good,
and to apply to those invested with the powers of government for redress of grievances
or other proper purposes, by petition, address or remonstrance.” Id. at art. I, § 20.
At the outset, Appellants criticize the Commonwealth Court for not appreciating
that they were asking for an independent state constitutional analysis. They acknowledge
that they did not label their analysis as consistent with the requirements of Edmunds, but
maintain they substantively “explore[d] the text of the Pennsylvania Constitution, its
history and Pennsylvania case law, case law from other jurisdictions, and policy
considerations.” Appellants’ Brief, at 45 n.11. Based on our review of Appellant’s
Memorandum of Law in Support of Motion for Summary Relief filed in the Commonwealth
Court on September 2, 2016, we agree with Appellants that they properly preserved their
state constitutional claims.
Noting that speech and association rights are at their core political rights,
Appellants observe that our courts have traditionally given these two clauses a broad
construction. Id. at 46-47 (collecting cases). Furthermore, Appellants note that this Court
has already held that at least in some areas, the Pennsylvania Constitution grants broader
protections of free expression than the First Amendment. Id. at 48-49 (citing Pap’s A.M.
v. City of Erie, 812 A.2d 591, 605-06 (Pa. 2002)). With regard to history, Appellants note
that Pennsylvania’s original 1776 Constitution was the first to explicitly have substantive
protections for freedom of speech and assembly. Id. at 49.
Appellants maintain that the effect of anti-fusion statutes is to reduce third parties’
participation in the electoral process and “denied [them] the freedom to express its choice
of - and to associate with - the most attractive candidate willing to accept its nomination.”
[J-61-2018] - 24
Id. at 50. Appellants assert that the anti-fusion statutes infringe on their associational and
expression rights because they legally forbid candidates from officially associating with a
third party if they have already been nominated by a major party through the primary
process. Id. Likewise, they maintain the statutes interfere with their ability to associate
with a broader range of voters. They note that the statutes also infringe on the rights of
the major parties as well, because the major parties are not permitted to officially agree
on a preferred candidate with a third party. Id. at 51.
With respect to the protection for political expression and association, Appellants
rely on our decision in Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981) wherein this
Court explained:
The “profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and
wide-open,” New York Times v. Sullivan, 376 U.S. 254, 270,
84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964), has special
meaning for this Commonwealth, whose founder, William
Penn, was prosecuted in England for the “crime” of preaching
to an unlawful assembly and persecuted by the court for
daring to proclaim his right to a trial by an uncoerced jury. It is
small wonder, then, that the rights of freedom of speech,
assembly, and petition have been guaranteed since the first
Pennsylvania Constitution, not simply as restrictions on the
powers of government, as found in the Federal Constitution,
but as inherent and “invaluable” rights of man.
Id. at 1388. While Appellants cite to several cases in which Pennsylvania courts highlight
the importance of protecting speech and association, only one, DePaul, supra, relates
even tangentially to elections. In DePaul, this Court held that Section 1513 of the Race
Horse Development and Gaming Act, 4 Pa.C.S. §1513, which prohibited certain classes
of persons associated with licensed gaming in Pennsylvania from making political
contributions to candidates for public office in Pennsylvania, to any political party
committee in Pennsylvania or any group or association organized to support a candidate
[J-61-2018] - 25
in Pennsylvania, violated Article I, Section 7 of our Constitution. In reaching its decision
the Court noted that “First Amendment authority remains instructive in construing Article
I, Section 7[.]” DePaul, 969 A.2d at 547. Recognizing this point, the Commonwealth
Court in the instant matter gave significant weight to Timmons, in which the New Party, a
minor political party, sought to nominate Andy Dawkins as a candidate for Minnesota state
representative. Dawkins had already filed to run as the candidate of a major political
party, and was running unopposed. Although he filed a candidate affidavit for the New
Party’s nomination, it was rejected by election officials because he had already filed as a
major party candidate. The New Party filed suit, asserting that the Minnesota election
laws prevented it from selecting and associating with its candidate of choice. The United
States Supreme Court noted:
The New Party’s claim that it has the right to select its own
candidate is uncontroversial, so far as it goes. . . . That is, the
New Party, and not someone else, has the right to select the
New Party’s standard bearer. It does not follow, though, that
a party is absolutely entitled to have its nominee appear on
the ballot as that party’s candidate. . . . That a particular
individual may not appear on the ballot as a particular party’s
candidate does not severely burden that party’s associational
rights.
Timmons, 520 U.S. at 359 (internal citations omitted). The Court further explained:
It is true the Minnesota’s fusion ban prevents the New Party
from using the ballot to communicate to the public that it
supports a particular candidate who is already another party’s
candidate. . . . We are unpersuaded, however, by the party’s
contention that it has a right to use the ballot itself to send a
particularized message to its candidate and to the voters,
about the nature of its support for the candidate. Ballots serve
primarily to elect candidates, not as forums for political
expression. . . . Like all parties in Minnesota, the New Party is
able to use the ballot to communicate information about itself
and its candidate to the voters, so long as that candidate is
not already someone else’s candidate. The party retains
[J-61-2018] - 26
great latitude in its ability to communicate ideas to voters and
candidates through its participation in the campaign, and party
members may campaign for, endorse, and vote for their
preferred candidate even if he is listed on the ballot as another
party’s candidate. . . .
Id. at 362-63 (internal citations omitted).
We reject Appellants’ argument that the protections afforded by the Pennsylvania
Constitution for speech and associational rights require a different result. Here,
Appellants and like-minded members of the Working Families Party were able to meet
and decide that the candidate who best represented their values was Rabb. They then
had to opportunity to participate fully in the political process, culminating in casting their
votes for the candidate of their choice. Under these circumstances, their speech and
associational rights were not violated.
Because Appellants have failed to establish that the challenged anti-fusion
provisions of the Election Code clearly, palpably and plainly violate the equal protection
clause of the United States Constitution or Article I, Sections 5, 7, and 20 of the
Pennsylvania Constitution, the order of the Commonwealth Court is affirmed.
Chief Justice Saylor and Justices Baer and Dougherty join the opinion.
Justice Todd files a concurring and dissenting opinion in which Justice Donohue joins.
Justice Wecht files a concurring and dissenting opinion in which Justice Donohue joins.
[J-61-2018] - 27
Working Families Party, Aplts. v. Com.
Combined Opinion