Opinion
376 M.D. 2024
08-23-2024
James N. Clymer and Steven E. Sylvester as Constitution Party Candidates for President and Vice President of the United States, Petitioners v. Al Schmidt, Respondent
OPINION NOT REPORTED
Submitted: August 13, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE STACY WALLACE, Judge.
This election law matter is being considered by a special panel pursuant to Section 112(b) of this Court's Internal Operating Procedures, 210 Pa. Code § 69.112(b) ("The President Judge may designate Judges to serve on a special court en banc or panel to hear election law matters, appellate or original jurisdiction, on an expedited basis.").
MEMORANDUM OPINION
RENÉE COHN JUBELIRER, PRESIDENT JUDGE.
Before the Court in its original jurisdiction are the Cross-Applications for Summary Relief on the Petition for Writ of Mandamus (Petition) filed by James N. Clymer and Steven E. Sylvester, the Presidential and Vice-Presidential Candidates (Candidates), respectively, of the Constitution Party (Party). Al Schmidt, Secretary of the Commonwealth (Secretary), rejected their Nomination Papers because they did not include the candidate affidavits for all 19 of the presidential electors named therein. Candidates filed the Petition seeking an order directing the Secretary to accept their Nomination Papers, which Candidates contend Secretary wrongfully rejected, maintaining this rejection violated various provisions of the United States and Pennsylvania Constitutions. Secretary responds that the rejection of the Nomination Papers in this manner is supported by the Pennsylvania Election Code(Election Code) and does not violate any constitutional provision because the mandatory candidate affidavit requirement for presidential electors is a reasonable, non-discriminatory regulation that causes minimal, if any, burden, and ensures that elections are fair and honest and that they proceed in an efficient and orderly manner. Secretary contends the lack of compliance therewith is a fatal defect leaving the Department of State (Department) with no authority to accept the Nomination Papers pursuant to In re Scroggin, 237 A.3d 1006 (Pa. 2020).
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
The issues arise because under the Election Code, the Party is considered a political body, not a political party. A political body uses a different process for nominating candidates than does a political party. "In short, a political party uses the primary election to nominate its candidate[s]; a political body nominates its candidate[s] by collecting the requisite number of signatures from electors, of any party or no party, and filing nomination papers with the Secretary . . . ." Working Families Party v. Commonwealth, 169 A.3d 1247, 1252 (Pa. Cmwlth. 2017) (en banc), aff'd, 209 A.3d 270 (Pa. 2019).
Our Supreme Court has described political parties and political bodies as follows:
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[.]" [Section 801(a) of the Election Code,] 25 P.S. § 2831(a). A group that does not achieve this goal is labeled as a "political body." [25 P.S.] § 2831(c).Working Families Party v. Commonwealth, 209 A.3d 270, 273 (Pa. 2019). Minor political parties are defined by Section 801(a) or (b) (relating to county-wide political parties), that have a statewide registration of less than 15% "of the combined State-wide registration for all State-wide political parties as of the close of the registration period immediately preceding the most recent November election." Section 912.2(a) of the Election Code, added by Section 8 of the Act of February 19, 1986, P.L. 29, 25 P.S. § 2872.2(a). Like political bodies, minor political parties nominate their candidates through the nomination paper process set forth in Section 951 of the Election Code, 25 P.S. § 2911, with some modification to reflect that they are candidates of a party. Id. Candidates' reference to the term political party refers to "major" not "minor" political parties.
I. THE PETITION AND ANSWER
Candidates are "placeholder candidates designated for circulation of [papers]; the [] Party has completed a nomination process and will, if this [P]etition is granted and the [N]omination [P]apers accepted, replace [Candidates] with their national candidates." (Petition ¶ 3.) Candidates aver a Party representative presented for filing the Nomination Papers for its statewide candidates and its 19 presidential electors to the Department at 10:00 a.m. on the last day to present nomination papers (August 1, 2024). (Id. ¶¶ 11-12.) Those Nomination Papers were initially rejected due to their not including candidate affidavits for the presidential electors. (Id. ¶¶ 11, 14.) About an hour and a half later, a Department representative accepted the filing fees and ancillary documents for all other offices but "refused to accept a partial filing of any of the [presidential] elector affidavits." (Id. ¶ 15.) At around 3:09 p.m., the Department accepted, as sufficient, the Nomination Papers as to the Party's candidates for Attorney General, Auditor General, Treasurer, and United States Senator. (Id. ¶ 16.)
Candidates aver "[a]ffidavits from all electors have not been required for filing in prior cycles, nor, crucially, are they required by the Election Code or Pennsylvania or Federal Constitution." (Id. ¶ 17.) But, to avoid controversy, the Party attempted to obtain candidate affidavits from the 19 presidential electors, who reside across Pennsylvania. (Id. ¶ 18.) By the end of the day, the Party had obtained 15 of 19 candidate affidavits and presented them to the Department. (Id. ¶¶ 18-20.) However, according to Candidates, the Department advised it was "all or none" as to the presidential electors and the President and Vice-Presidential Candidates, and because the Party had not presented all 19 candidate affidavits from the presidential electors, Candidates' nominations were rejected and the filing fees for Candidates were returned. (Id. ¶¶ 22-23.)
Candidates argue "[p]residential electors are not candidates but are instead instrumentalities of the federal system" and their names are not on the ballot. (Id. ¶ 24.) They argue the Election Code does not require political party candidates for President and Vice-President, or presidential electors, to file a candidate affidavit, citing Section 910 of the Election Code, 25 P.S. § 2870 (setting forth the candidate affidavit requirement for political party candidates). Candidates acknowledge a "similar form" is used for political body candidates under Section 951(e) of the Election Code, 25 P.S. § 2911(e), but the language in that section should not be read to include the presidential electors but only the candidates for President and Vice-President. (Id. ¶ 26.) Candidates further assert rejecting nomination papers for political body candidates, and not political party candidates, due to the lack of candidate affidavits for presidential electors violates the Equal Protection Clause of the United States Constitution, U.S. Const. amend. XIV, and the free and equal elections clause of the Pennsylvania Constitution, Pa. Const. art. I, § 5. (Id. ¶¶ 30-31.)
The Fourteenth Amendment states in pertinent part: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV.
The free and equal elections clause provides: "Elections 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.
Secretary filed an answer. Therein, Secretary denies that Petitioners have complied with the Election Code's requirements and states the Department properly rejected the noncompliant submission of the Nomination Papers as to Candidates and all 19 of the presidential electors. According to the Secretary, the Department's website advises that, under Sections 951(e) and 953(a) of the Election Code, 25 P.S. §§ 2911(e), 2913(a), candidate affidavits must be filed for those seeking to be political body presidential electors. Secretary likewise denies that requiring political body presidential electors to file candidate affidavits under Section 951(e) violates the United States and Pennsylvania Constitutions.
Candidates' counsel has filed several "praecipes." The first notified the Court of subsequent actions taken by Candidates and the Party, including that Candidates would "be withdrawing as political candidates" and had "filed" Withdrawal Notices with the Department. (Praecipe to Switch Candidates at 1.) The second submitted to this Court the Party's applications to substitute the Party's national candidates for Candidates.
The Court initially directed the filing of cross-applications for summary relief and related briefs and scheduled oral argument before a panel, but the parties requested the matter be decided on the briefs in an expedited manner, which the Court granted. This matter is now ready for disposition.
II. PARTIES' ARGUMENTS ON SUMMARY RELIEF
A. Candidates
Candidates argue they are entitled to summary relief on their Petition as there are no material facts in dispute and their right to relief is clear because, as a matter of law, Secretary must accept the Nomination Papers that were rejected. Candidates acknowledge political bodies are not permitted to nominate candidates in the primaries, Section 801(c) of the Election Code, 25 P.S. § 2831(c); instead, they use the nomination paper process, which requires, per In re Scroggin, candidates to file affidavits under Section 951(e) of the Election Code, and the failure to do so is an unamendable, fatal defect. However, Candidates assert presidential electors are not candidates, who would have to file candidate affidavits. The term "candidate," they assert, means those who offer themselves to be elected to an office, and presidential electors act only after the winners of the election for President and Vice-President is certified. In Candidates' view, the voters vote for the named candidate, not the presidential electors. To the extent certain provisions within the Election Code suggest that presidential electors are candidates, Candidates assert those provisions reflect a lack of consistency in the statute or do not require political body presidential electors to sign candidate affidavits. (Candidates' Reply Brief (Br.) at 6.) For further support, Candidates also argue the Election Code "does not reference that the electors also have to have candidate affidavits." (Candidates' Br. at 13.) In particular, Candidates point to Section 910 of the Election Code as not requiring presidential candidates to file candidate affidavits and not referencing presidential electors.
Although Candidates suggest that this applies to both nomination petitions and nomination papers, (Candidates' Br. at 15), this section plainly relates to candidates from political parties and primary elections and does require candidate affidavits for candidates for party delegate or alternate. 25 P.S. § 2870.
Candidates maintain that, even if candidate affidavits are required, the failure to file those affidavits should "doom," (id. at 12 (emphasis omitted)), only those presidential electors, rather than all 19 presidential electors. This result, they assert, is supported by In re Scroggin, where the other candidates on the slate of the Green Party were permitted to remain on the ballot notwithstanding there was no presidential or vice-presidential candidate thereon. In such circumstances, Candidates argue, the 15 presidential electors with candidate affidavits should be accepted, along with the candidates for President and Vice-President, and the other 4 spots declared vacancies that could be filled in accordance with other Election Code procedures, including Section 918, notwithstanding that this provision applies to political parties and primary elections.
They further argue that requiring presidential electors of political bodies to file candidate affidavits while the presidential electors of the major parties do not is contrary to common sense. Candidates assert that Secretary's interpretation imposes an impossible burden on political bodies. The whole process is lengthy and burdensome, and Candidates should not be precluded from being on the ballot, Candidates argue, under Secretary's interpretation of the Election Code. Candidates argue the result they seek is consistent with the past practice of the Department, citing "statements from the 1960 Presidential election" where fewer than the total presidential electors were presented and the candidates for President and Vice-President were allowed on the ballot, and with court decisions from other jurisdictions, which have found that the lack of candidate affidavits for presidential electors not to be "a material problem" for the other candidates. (Candidates' Br. at 22-25 (citing Appl. of Horowitz, 294 N.Y.S.2d 69 (N.Y. Sup. Ct. 1968), aff'd, Horowitz v. Lomenzo, 30 A.D.2d 982 (N.Y.App.Div. 1968); Libertarian Party of Ill. v. Scholz, 872 F.3d 518 (7th Cir. 2017) (holding that Illinois law requiring minor parties to have a full slate of candidates in local elections or no candidate could be on the ballot was unconstitutional)).)
Candidates next argue the rejection of their Nomination Papers and preclusion of their name on the ballot based on the failure to present candidate affidavits for all 19 presidential electors violates the Equal Protection Clause of the Fourteenth Amendment and principles of Free Association/Speech under the First Amendment of the United States Constitution, U.S. Const. amend. I, and the free and equal elections Clause of the Pennsylvania Constitution. Candidates argue constitutional issues in election matters should be allowed to be raised in mandamus petitions, citing In re Nader, 858 A.2d 1167, 1180-81 (Pa. 2004), because to do otherwise would require Candidates to file a claim under 42 U.S.C. § 1983 and seek an injunction in federal court, thereby risking delay of the election, a result no one wants.
The First Amendment provides, in relevant part: "Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble . . . ." U.S. Const. amend. I.
On the merits of their constitutional claim, Candidates argue Secretary's position treats candidates of political bodies for President and Vice-President differently from those of political parties, particularly given the inherent difficulties and burdens already placed on political bodies to get candidates on the ballot and the lack of any burden on political parties to do the same. They reiterate similar requirements have been struck in other jurisdictions as violating the United States Constitution, presidential electors of political parties are not required to file candidate affidavits, and if there are vacancies for political party presidential electors they can be filled later, Section 918 of the Election Code, 25 P.S. § 2878. Candidates argue the same requirements and process should apply to political bodies, and there is no reason why presidential electors for political bodies should be held to a more stringent standard. They further contend there is nothing suggesting fraud or misconduct that would warrant precluding Candidates from being on the ballot to justify disparate treatment, particularly under the free and equal elections clause of the Pennsylvania Constitution, as it works to create an unfair partisan advantage. (Candidates' Br. at 35 (citing League of Women Voters of Pa. v. Commonwealth, 178 A.3d 737 (Pa. 2018).) Candidates distinguish this matter from Green Party of Pennsylvania v. Department of State Bureau of Commissions, Elections & Legislation, 168 A.3d 123 (Pa. 2017), which found no constitutional violation where the untimely filing of a minor political party's nomination certificate prevented the candidate from appearing on the ballot, because that case clearly involved a "candidate." That is not the situation here.
B. Secretary
Secretary contends he is entitled to summary relief as there are no material facts in dispute and his right to relief is clear. Secretary argues presidential electors are indisputably candidates pursuant to the plain language of Sections 601, 951(e), 953(a), 978(b), and 1501 of the Election Code, 25 P.S. §§ 2751, 2911(e), 2913(a), 2938(b), and 3191, and Candidates' contrary arguments disregard these provisions. And, because presidential electors are candidates nominated by the Nomination Papers, Secretary asserts, they are required to file candidate affidavits and the failure to do so resulted in the proper rejection of the Nomination Papers. Secretary asserts that, consistent with the Election Code and the Department's past practices, the Department advised the Party of the need for candidate affidavits for all 19 presidential electors, and, having not received all the required paperwork, the Department had no authority to accept the nominating papers with respect to Candidates or the presidential electors. According to Secretary, Candidates have not offered a plausible reason to disregard the Election Code's plainly set forth requirements and their reliance on Section 910 is misplaced as that relates to affidavit requirements for political party candidates running in primary elections.
Secretary further argues Candidates' contention that it can file fewer than 19 candidate affidavits and nomination papers and that less than 19 can be accepted must be rejected. Accepting this argument "would compromise Pennsylvania's participation in the electoral college," (Sec'y's Br. at 11), as a vote for one of the presidential candidates on the ballot is really a "vote for all the candidates of that party for presidential elector," Section 1003(a) of the Election Code, 25 P.S. § 2963(a) (emphasis added); see also Section 1112-A(a)(4), (b)(4) of the Election Code, 25 P.S. § 3031.12(a)(4), (b)(4) (providing for the election of all presidential electors via a single mark or action). According to Secretary, these statutory provisions reflect the General Assembly's "winner-take-all" position on presidential electors and allowing the nomination of fewer than 19 presidential electors would deprive the voters of their right to all of the electors to which Pennsylvania is entitled. (Sec'y's Br. at 13.) Nor can, Secretary argues, the Party nominate fewer than 19 presidential electors initially and then replace or fill those vacancies after the fact, as any initial filing must comply with the Election Code's requirements to be accepted, before substitutions may be made. In re Scroggin, 237 A.3d at 1019. Secretary maintains that Candidates' reliance on extra-jurisdictional cases is misplaced because the federal case from Illinois involved a unique requirement that any minor political party must include a full slate of candidates, and did not involve presidential electors, and the New York case is similarly irrelevant as the Election Code requires that the full slate of candidates for presidential electors be voted on through the voting for a candidate for President/Vice-President.
Section 1112-A was added by Section 4 of the Act of July 11, 1980, P.L. 600.
As for the alleged constitutional violations, Secretary first asserts that a constitutional challenge cannot be raised via a writ of mandamus, as this Court held in Working Families Party v. Commonwealth (Pa. Cmwlth., No. 435 M.D. 2016, filed September 30, 2016), slip op. at 3-4 (stating mandamus was not a means of testing the constitutionality of Section 951 of the Election Code). Thus, Secretary argues the constitutional issues raised in the Petition could be dismissed on this basis.
On the merits of the constitutional claims, Secretary argues the candidate affidavit requirement for political body presidential electors does not violate the United States Constitution because it "imposes a minimal burden that is more than justified by the Commonwealth's interests, and the difference in rules for political parties and political bodies is entirely reasonable." (Sec'y's Br. at 17.) Secretary argues requiring political body presidential electors to submit candidate affidavits does not make complying with the remainder of the nomination requirements more challenging, given the beneficial ways such bodies are treated. Secretary maintains political bodies have six months to complete the nomination paper process, during which time a presidential elector candidate must complete a one-page affidavit attesting to facts about themselves and facts important to their eligibility to be a presidential elector for the political body. Secretary points out the candidate affidavit need not be notarized, as the individual can file an unsworn statement with the affidavit instead, and the Department is available to answer questions and will allow the corrections of any flaws in the nomination papers, including the absence of candidate affidavits, up until the deadline for filing the same. Accordingly, Secretary asserts the candidate affidavit requirement survives the standard for evaluating an equal protection claim based on ballot access regulations. (Id. (citing Rogers v. Corbett, 468 F.3d 188, 193-94 (3d Cir. 2006)).)
Further, Secretary maintains the requirement and minor burden imposed thereby are justified by the state's interests in preventing the political bodies from misusing this process and sore losers from obtaining a second bite at the apple. These interests are served, Secretary asserts, by requiring political body presidential electors to attest that they have not been registered with a political party 30 days prior to the primary or were not a candidate in that primary. (Sec'y's Br. at 21 (citing, e.g., In re Zulick, 832 A.2d 572, 581-82 (Pa. Cmwlth. 2003)).) Secretary also argues the affidavits in which the candidates for presidential elector declare their eligibility has a recognized anti-fraud purpose pursuant to In re Scroggin and aids in ensuring the integrity of elections. That political parties may not have the exact same requirements in this regard does not establish, Secretary asserts, a constitutional violation because those parties have to go through the lengthy and publicized primary process that includes the filing of similar affidavits by, among other candidates, party delegates. Secretary explains during the primary election, voters elect the delegates to the party conventions who will nominate the party's presidential candidate, and the chosen candidate will, in turn, nominate their presidential electors per Section 918 of the Election Code. According to Secretary, this is unlike the less public process used by political bodies to nominate their candidates. Political bodies' nomination process, Secretary contends, is ultimately less burdensome because they can use a single set of nomination papers for multiple candidates, the signers of the papers are not required to be of a particular political party, and they have six months to acquire the necessary signatures. Per Secretary, requiring political bodies to submit candidate affidavits for their presidential electors is reasonable, particularly where the process of choosing the candidates is less likely to occur within public view.
Finally, Secretary argues, Candidates' free and equal elections clause claim also fails for the same reasons above. Secretary asserts "the affidavit requirement is a [']reasonable, non-discriminatory restriction[] to ensure honest and fair elections that proceed in an orderly and efficient manner,['] Banfield v. Cortés, 110 A.3d 155, 176-77 (Pa. 2015)." (Sec'y's Br. at 25.)
III. DISCUSSION
A. Legal Standards
In original jurisdiction cases, this Court may grant summary relief at "any time after the filing of a petition for review" if "the right of the applicant thereto is clear." Pennsylvania Rule of Appellate Procedure 1532(b), Pa.R.A.P. 1532(b). Summary relief "may be granted if a party's right to judgment is clear and no material issues of fact are in dispute." Jubelirer v. Rendell, 953 A.2d 514, 521 (Pa. 2008) (internal quotation marks omitted). "Mandamus is an extraordinary writ 'which will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the [petitioner], a corresponding duty in the [respondent], and want of any other adequate and appropriate remedy.'" Cimaszewski v. Bd. of Prob. & Parole, 868 A.2d 416, 422 (Pa. 2005) (quoting Bronson v. Pa. Bd. of Prob. & Parole, 421 A.2d 1021, 1023 (Pa. 1980)). "[T]he purpose of mandamus is not to establish legal rights, but to enforce those rights which are already established." Clark v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007).
B. Are Presidential Electors "Candidates" Who Must File Candidate Affidavits Under the Election Code?
Candidates assert that presidential electors are not candidates because they are not on the ballot and are not elected in a general election. However, the plain language of the Election Code contradicts these assertions and supports the conclusion that presidential electors are candidates. Section 601 of the Election Code, titled "General election; officers to be elected," states: "Electors of President and Vice-President of the United States . . . shall be elected at the general election." 25 P.S. § 2751 (emphasis added). Section 1501 of the Election Code similarly provides that "[a]t the general election . . . there shall be elected . . . persons to be known as electors of President and Vice-President of the United States, and referred to in this act as presidential electors . . . ." 25 P.S. § 3191 (emphasis added). Other statutory provisions, related to the process of voting during the General Election similarly reference the election of presidential electors. See, e.g., 25 P.S. §§ 3031.12(a)(4), (b)(4). Accordingly, presidential electors are elected in a general election.
Section 1112-A(a)(4) provides, relevantly:
At any general election at which presidential electors are to be chosen, each elector shall be permitted to vote by one operation for all the presidential electors of a political party or political body. For each party or body nominating presidential electors, a ballot label shall be provided containing only the words "Presidential Electors," preceded by the names of the party or body and followed by the names of the candidates thereof for the Office of President and Vice-President, and the corresponding counter or registering device shall register votes cast for said electors when thus voted for collectively.25 P.S. § 3031.12(a)(4) (emphasis added). Section 1112-A(b)(4) states, pertinently:
If he desires to vote for the entire group of presidential electors nominated by any party or political body, he may make a cross (X) or check (•) or punch or mark sense mark or otherwise indicate a selection associated with the names of the candidates for President and Vice-President of such party or body.25 P.S. § 3031.12(b)(4) (emphasis added).
As for Candidates' assertion that presidential electors are not on the ballot, Section 1003(a) of the Election Code, which sets forth the official form of election ballots, requires the following on the general election ballot: "Presidential Electors. (Vote for the candidates of one party for President and Vice[-]President, or insert the names of candidates)." 25 P.S. § 2963(a). Under this language, while the names of the individual presidential electors are not on the ballot, general election ballots, statutorily, advise that people are voting for the "Presidential Electors." And, under Section 1112-A(a)(4) of the Election Code, these "Presidential Electors" are followed on the ballot by the name of the particular party and particular candidates for President and Vice-President with which those electors are associated. 25 P.S. § 3031.12(a)(4). Thus, it is not correct to say that the office of "presidential electors" is not on the ballot.
Presidential electors are identified or described as candidates elsewhere in the Election Code, including in those sections relating to the nomination of political body candidates. Section 953(a) expressly identifies presidential electors as "candidates" who are required to file nomination papers, stating, in relevant part: "Nomination papers for candidates for presidential electors, United States Senators, Representatives in Congress, and State offices, including senators, representatives and judges of courts of record, shall be filed with the Secretary . . . ." 25 P.S. § 2913(a) (emphasis added). Additionally, Section 952 sets forth the requirements for the contents of nomination papers and specifically provides, in pertinent part:
All nomination papers shall specify--(a) The name or appellation of the political body which the candidates nominated thereby represent, expressed in not more than three words, and in the case of electors for President and Vice-President of the United States, the names of the candidates for President and Vice-President of such political body[.]25 P.S. § 2912 (emphasis added).
All of these statutory provisions, along with others, contradict the fundamental bases of Candidates' argument that presidential electors are not candidates who are elected at a general election. We must therefore determine whether, as candidates, political body presidential electors are required to file a candidate affidavit with their nomination papers. Candidates appear to argue candidate affidavits are not required because Section 951(e) does not specifically refer to presidential electors. Candidates' reading, however, is too narrow and disregards presidential electors' status as "candidates" under the Election Code.
Section 951(e) provides as follows:
There shall be appended to each nomination paper offered for filing an affidavit of each candidate nominated therein, stating--(1) the election district in which he resides; (2) the name of the office for which he consents to be a candidate; (3) that he is eligible for such office; (4) that he will not knowingly violate any provision of this act, or of any law regulating and limiting election expenses, and prohibiting corrupt practices in connection therewith; (5) 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; (6) that in the case where he is a candidate for election at a general or municipal election, he was not a registered and enrolled member of a party thirty (30) days before the primary held prior to the general or municipal election in that same year; (7) that, in the case where he is a candidate for election at a special election, he is not a registered and enrolled member of a party; and (8) that he is not a candidate for an office which he already holds, the term of which is not set to expire in the same year as the office subject to the affidavit.25 P.S. § 2911(e) (emphasis added). As presidential electors are candidates nominated in a nomination paper, Section 951(e) requires that they shall attach to their nomination papers the candidate affidavit confirming numerous facts about their eligibility to be a candidate for that office, which must be presented to the Department in accordance with Section 953(a). Given the Election Code's repeated characterization of presidential electors as candidates who are elected in a general election and the requirement that candidates nominated in nomination papers attach a candidate affidavit to their nomination papers, Candidates' arguments to the contrary are not persuasive.
C. What Effect Does Attaching Fewer than all 19 Candidate Affidavits Have?
Candidates assert that if the Party's presidential electors were required to provide candidate affidavits for filing, at most, only the four presidential electors who did not file candidate affidavits should be invalid, and the Nomination Papers should be otherwise accepted. In no event, they contend, should their nomination have been affected by there being less than a full complement of presidential electors submitted on the last day to file the Nomination Papers. Candidates further maintain that these four presidential elector positions should be declared vacancies that can be filled in the manner provided under the Election Code.
In re Scroggin sets forth the analysis to apply when there is no candidate affidavit attached to nomination papers. Therein, the Supreme Court examined a case where the placeholder candidate for president for the Green Party failed to submit a timely candidate affidavit with the nomination papers for a slate of candidates. The Green Party subsequently attempted to substitute candidates for several of the original candidates, including the one without a timely candidate affidavit. The Supreme Court held the untimely filed candidate affidavit could not be accepted and, due to the failure to strictly comply with the procedure for nominating a candidate from a political body, the subsequent substitution was a nullity. In doing so, it explained the purpose of Section 951(e) and the result of noncompliance, stating:
One of the Election Code's critical anti-fraud mechanisms is the longstanding requirement that a candidate "make affidavit of facts pertinent to his candidacy," a mandate that predates the [Election] Code
by more than two decades. Winston v. Moore, . . . 91 A. 520, 523 ([Pa.] 1914) . . . . As this Court previously has explained:
[T]he provisions of the election laws relating to the form of nominating petitions and the accompanying affidavits are not mere technicalities but are necessary measures to prevent fraud and to preserve the integrity of the election process. The requirements of sworn affidavits are to insure the legitimacy of information crucial to the election process. Thus, the policy of the liberal reading of the Election Code cannot be distorted to emasculate those requirements necessary to assure the probity of the process.
[Petition of] Cianfrani, 359 A.2d [383,] 384 [(Pa. 1976)]. The purpose of this provision as applied to nomination papers is to identify and disqualify so-called "sore loser" candidacies, i.e., those individuals who unsuccessfully attempted to secure the nomination of a political party before filing nomination papers as a candidate of a political body. See In re Nomination Paper of Cohen, . . . 225 A.3d 1083, 1093-94 ([Pa.] 2020) (Wecht, J., dissenting) (tracing the legislative history of the Commonwealth's "anti-party raiding" prohibitions). To that end, it has long been the case that a candidate's failure to present and file an affidavit of candidacy with his or her nomination paper is a fatal defect necessitating its rejection. Brown v. Finnegan, . . . 133 A.2d 809, 813 ([Pa.] 1957) (holding that a candidate for judicial office by nomination paper who did not make and file an affidavit in conformity with the requirements of the Election Code was not permitted to be added to the general election ballot).
The Election Code affords the Department . . . no discretion to accept a facially deficient nomination paper when presented for filing. When a "nomination paper is presented in the office of the Secretary of the Commonwealth," it is the duty of the officer receiving said nomination paper to examine it for "material errors or defects apparent on the face thereof, or on the face of the appended or accompanying affidavits." [Section 976 of the Election Code, 25 P.S.] § 2936 (emphasis added). If a defect is found, the nomination paper "shall [not] be permitted to be filed." Id. Here, it is undisputed that the nomination paper at issue held out Elizabeth Scroggin as the Green Party's intended nominee for President of the United States. . . . It is equally undisputed that the Green Party did not submit an affidavit of candidacy for Scroggin at the time the nomination paper identifying her
as the party's presidential nominee was presented for filing. The parties have stipulated to this point.
Although the use of a placeholder candidate is a permissible feature of the nominating process for political bodies, the Election Code draws no distinction between temporary candidates and permanent ones. In order to substitute the name of a bona fide nominee of a political body onto the ballot in that manner, a placeholder first must be duly nominated in accordance with the provisions of the Election Code. [In re] Barr, 956 A.2d [1083,] 1087 [(Pa. Cmwlth. 2008)]. As we have made clear, "the failure to affix an affidavit of the candidate" to a nomination paper constitutes "a fatal defect" that "cannot be cured by subsequent conduct." [Petition of] Cianfrani, 359 A.2d at 384 . . . . By appending [Howie] Hawkins' affidavit to the nomination paper instead of Scroggin's, the Green Party failed to comply with that statutory command.In re Scroggin, 237 A.3d at 1018-19 (some emphasis added).
Hawkins was the National Presidential candidate whose candidate affidavit the Green Party attached to the nomination papers rather than Scroggin's. In re Scroggin, 237 A.3d at 1009.
Under the above analysis, it cannot be disputed that the four presidential elector candidates who failed to present candidate affidavits on the last day they could be filed were properly rejected. The question remains, however, as to what effect this has on the remaining 15 presidential electors and Candidates. According to Candidates, their Nomination Papers should be accepted nonetheless, the compliant 15 presidential electors should be accepted, and the Party should be permitted to substitute or otherwise fill the 4 vacancies with new presidential electors. We are not persuaded any of these options are permissible under the Election Code.
Initially, to the extent Candidates' arguments could suggest that their candidacies can move forward with fewer than 19 presidential electors, this is not possible. Secretary's argument that having fewer than 19 presidential electors would undermine the Election Code's structure and Pennsylvania's role in the electoral college is well taken. The United States Constitution sets forth the proportion of presidential electoral votes each state receives, and the role those presidential electors have in the electoral process. Article II, Section 1, Clause 2 of the United States Constitution relevantly states: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." U.S. Const. art. II, § 1, cl. 2 (emphasis added). By tying the number of presidential electors to the number of a state's representation in the United States Congress, this clause establishes the proportional representation each state has in electing the next President and Vice-President. Per the Twelfth Amendment to the United States Constitution, U.S. Const. amend. XII, when the votes of the states' presidential electors are presented and counted, they elect the next President and Vice-President of the United States. The Twelfth Amendment relevantly provides:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed . . . . The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed[.]
U.S. Const. amend. XII (emphasis added). It is the "whole number of Electors appointed" that provide the proportional representation of a state in the Electoral College under this Amendment. It would, therefore, disrupt the Constitutionally mandated proportionality among the states if the winning Presidential and Vice-Presidential candidates in any state received fewer Presidential Electors than set forth in the Constitution and in the Election Code. It would defeat the constitutional scheme for the election of the President and Vice-President were this to occur in more than one state. The Election Code cannot be read inconsistently with our nation's foundational document, which allowing fewer presidential electors than Pennsylvania is entitled to would do.
The Election Code provides that Pennsylvania's presidential electors shall be chosen by a vote of the qualified electors of the Commonwealth using the same formula. Section 1501 of the Election Code, 25 P.S. § 3191. That section provides that "at the general election . . . there shall be elected . . . persons to be known as electors of President and Vice-President of the United States, . . . equal in number to the whole number of senators and representatives to which this State may be entitled in the Congress of the United States." Id. (emphasis added).
Additionally, Candidates' argument that their nomination is unaffected by the presence of fewer than 19 presidential elector candidate affidavits is unpersuasive. Presidential and Vice-Presidential nominations are inextricably linked with the nomination of presidential electors pledged thereto, as reflected in various provisions of the Election Code as previously discussed. See, e.g., 25 P.S. §§ 2963(a), 3031.12(a)(4), (b)(4). Indeed, while the names of the Presidential and Vice-Presidential candidates are more prominent on the general election ballot, multiple sections of the Election Code confirm that electors are really voting for the "Presidential Electors" of a particular party and a particular candidate. 25 P.S. §§ 2963(a), 3031.12(a)(4), (b)(4). Consequently, there is a nexus between the presidential electors and the Presidential and Vice-Presidential candidates those electors support and, because a full slate of presidential electors is required per the United States Constitution and the Election Code, the lack of such slate precludes the acceptance of the nomination papers as to the Presidential and Vice-Presidential candidates.
As for Candidates' argument that the Party should be permitted to substitute or appoint a candidate to fill the four vacancies, the Supreme Court explained, in In re Scroggin, that
[t]he consequences of the . . . deficient filings are clear. In order to effectuate the substitution of one political body candidate for another, two predicates must be satisfied. First, a candidate must be duly nominated by nomination papers properly presented and accepted for filing, along with an original affidavit, in the Office of the Secretary . . . . And second, after the nomination, that candidate must either die or formally withdraw by way of a notarized writing filed with the same office. Only when those two events occur may another candidate be substituted. See Watson [v. Witkin], 22 A.2d[, 1,] 21 [(Pa. 1941)] ("The authorized party committee can make substituted nominations only when the duly nominated candidate of the party dies or withdraws as a candidate. Before there can be a 'substituted nomination' there must have been a nomination.") (emphasis in original). Thus, only "full[ ] compli[ance] with the rigors of the Election Code" will suffice to effectuate the nomination and withdrawal of a placeholder. Barr, 956 A.2d at 1088. Because full compliance was lacking here, the efforts to substitute Hawkins for Scroggin were ineffectual. Having failed to adhere to the Election Code's express commands, Scroggin could not be considered the Green Party's duly nominated candidate for President. Scroggin's candidacy, like [Neal Taylor] Gale's, was a nullity, thereby depriving the Green Party's bona fide nominees of the opportunity to access the general election ballot by substitution.In re Scroggin, 237 A.3d at 1022-23 (some emphasis added).
Gale was the Green Party's placeholder candidate for Vice-President and whose candidate affidavit was not submitted with the nomination papers when filed.
This matter involves, as in In re Scroggin, defective initial filings with the Department, meaning that the filing did not comply with the strict requirements of the Election Code. Under In re Scroggin, substitution is only possible where the initial candidate was properly nominated. See Section 980 of the Election Code, 25 P.S. § 2940 (discussing substitution following the death or withdrawal of a political body candidate nominated by nomination papers). "Only 'full[ ] compli[ance] with the rigors of the Election Code' will suffice to effectuate the nomination and withdrawal of a placeholder." In re Scroggin, 237 A.3d at 1023 (quoting Barr, 956 A.2d at 1088). Thus, Candidates' position that substitution with a new candidate may be made is not possible. In re Scroggin, 237 A.3d at 1022-23.
For these reasons, without a full slate of properly nominated presidential electors, a fatal defect, the Department is without the authority to accept the Nomination Papers at issue. Id. at 1019-21. This leaves the Court with the final question of whether, as Candidates contend, there is a constitutional basis upon which the Department can be directed to accept these Nomination Papers.
D. Is the Candidate Affidavit Requirement for Political Body Presidential Electors Constitutional and can such Issue be Raised in a Mandamus Petition?
1. Mandamus Petition
Secretary argues that Candidates' constitutional issues could be dismissed on the basis that a mandamus petition is not "a proper vehicle for challenging the constitutionality of a statute, regulation or policy." Clark, 918 A.2d at 159; Working Families Party, slip op. at 3-4. Nonetheless, the Court has, on occasion, allowed constitutional challenges within the context of an action seeking a writ of mandamus. See, e.g., Betters v. Beaver County, 200 A.3d 1044 (Pa. Cmwlth. 2018) (mandamus action seeking an order directing a countywide reassessment due to violation of the Uniformity Clause); Coppolino v. Noonan, 102 A.3d 1254, 1263 (Pa. Cmwlth. 2014) (mandamus action challenging constitutionality of Sexual Offender Registration and Notification Act and stating that mandamus can lie where the official refuses to act based on a misinterpretation of the law); Kretchmar v. Dep't of Corr., 831 A.2d 793 (Pa. Cmwlth. 2003) (considering whether an inmate's constitutional rights were violated in the context of a mandamus petition seeking to compel the Department of Corrections to pay or provide for medical treatment); Trinisewski v. Hudock, 494 A.2d 504 (Pa. Cmwlth. 1985) (resolving constitutionality of an ordinance in a mandamus action seeking continued payment of salaries based on an allegedly unconstitutionally repealed ordinance); Frank v. Tucker, 346 A.2d 848, 849 (Pa. Cmwlth. 1975) (indicating that had the mandamus petition seeking to compel the Secretary's certification of two judicial vacancies to a county board of election been timely, the court would have addressed "[a] novel and important constitutional [] posed" therein). Secretary's action here involves a challenged interpretation of the Election Code, and given the important constitutional issues posed in the Petition and the short timeframes associated with election matters, the Court will not dismiss the constitutional claims on this basis.
Pa. Const. art. VIII, § 1.
Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa.C.S. §§ 9799.10-9799.41.
2. Merits
Candidates last argue that requiring presidential electors of political bodies to file candidate affidavits, where presidential electors of political parties are not required to do so, imposes a near impossible burden on political bodies and is, therefore, unconstitutional. Reviewing this argument, the Court is cognizant that "[t]he judiciary should act with restraint, in the election arena, subordinate to express statutory directives. Subject to constitutional limitations, the [] General Assembly may require such practices and procedures as it may deem necessary to the orderly, fair and efficient administration of public elections in Pennsylvania." Green Party, 168 A.3d at 130 (quoting In re Guzzardi, 99 A.3d 381, 386 (Pa. 2014)).
The Supreme Court has acknowledged that the right to vote is fundamental and "pervasive of other basic civil and political rights," Bergdoll v. Kane, 731 A.2d 1261, 1269 (Pa. 1999) (citation omitted), although the state may enact substantial regulations that contain reasonable, non-discriminatory restrictions to ensure honest and fair elections that proceed in an orderly and efficient manner. In re Nader, 905 A.2d 450, 459 (Pa. 2006) (holding a statute placing restrictions on candidates' eligibility was an "eminently reasonable" regulation that was rationally related to the Commonwealth's interest in ensuring honest and fair elections). Cf. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (providing that "when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the [s]tate's important regulatory interests are generally sufficient to justify the restrictions") (internal quotation marks omitted).
In evaluating constitutional challenges under the First and Fourteenth Amendments to ballot access regulations, courts "consider what burden is placed on the rights which plaintiffs seek to assert and then [] balance that burden against the precise interests identified by the state and the extent to which these interests require that plaintiffs' rights be burdened." Rogers, 468 F.3d at 193-94 (applying what is known as the Anderson-Burdick test to First Amendment and Equal Protection Clause challenges to the Election Code's signature requirements for gaining access to the general election ballot). More severe burdens must be justified by compelling state interests, while "if a burden is not severe and 'imposes only reasonable, nondiscriminatory restrictions' on constitutional rights, 'the State's important regulatory interests are generally sufficient to justify the restrictions.'" Mazo v. N.J. Sec'y of State, 54 F.4th 124, 145-46 (3d Cir. 2022) (quoting Burdick, 504 U.S. at 434) (internal quotation marks omitted). See also Banfield, 110 A.3d at 176-77.
Anderson v. Celebrezze, 460 U.S. 780 (1983).
Under this framework, "alternate ballot access rules for major and minor political parties are not per se unconstitutional." Rogers, 468 F.3d at 196. The United States Supreme Court has recognized "that there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other." Jenness v. Fortson, 403 U.S. 431, 441 (1971). The analysis under the free and equal elections clause of the Pennsylvania Constitution similarly finds that there is no violation thereof where the ballot access requirement is a "reasonable, non-discriminatory restriction[]" imposed "to ensure honest and fair elections that proceed in an orderly and efficient manner." Banfield, 110 A.3d at 176-77.
Applying these principles here, Secretary makes a convincing argument that the burdens imposed by requiring political body presidential elector candidates to file candidate affidavits are minimal and that there are reasonable, non-discriminatory reasons to support that requirement. On the issue of the burden imposed, there are differences in the political party and political body processes of getting on the ballot, but this is not per se unconstitutional. Rogers, 468 F.3d at 196. The General Assembly has made policy decisions as to the manner in which political bodies, whose processes may not be as transparent or in the public view as the political parties, gain access to the ballot. While some requirements may be viewed as more restrictive, others are less restrictive, as noted by Secretary. Requiring, within the approximately six-month period in which nomination papers may be circulated, a candidate for presidential elector to complete (and not necessarily have notarized) a single-page affidavit in which they must acknowledge certain information necessary to establish their eligibility to be a candidate of a political body, is not so burdensome as to strike that requirement. Indeed, the lack of burden of the candidate affidavit requirement is reflected by the factual allegations in this matter - notwithstanding the tremendous burden Candidates claim the requirement imposes - the Party was able to obtain and file, within a period of 6 hours, 15 of the 19 candidate affidavits needed to present a full slate of presidential electors. Six months to obtain these candidate affidavits cannot be considered severe.
Where the burden imposed is not severe, a state's "reasonable, non[-]discriminatory restrictions' on constitutional rights," may be justified by "the [s]tate's important regulatory interests." Mazo, 54 F.4th at 145-46. See also Banfield, 110 A.3d at 176-77 (collecting cases). Secretary has described numerous regulatory interests to support the minor (if any) burden imposed by the candidate affidavit requirement for political body presidential electors. Those interests or reasons include ensuring that no "sore losers" are seeking to participate as candidates for political body positions. Numerous cases, including Petition of Cianfrani, 359 A.2d at 384, and In re Scroggin, 237 A.3d at 1019, have set forth reasonable, non-discriminatory reasons for the imposition of the candidate affidavit requirement for political body candidates. And these reasonable, non-discriminatory reasons can be used here to justify the challenged requirement.
In regard to Candidates' challenge under the free and equal elections clause, our Supreme Court has held there is no violation of the free and equal elections clause where the ballot access requirement is a "reasonable, non-discriminatory restriction[]" imposed "to ensure honest and fair elections that proceed in an orderly and efficient manner." Banfield, 110 A.3d at 176-77. Notably, in Winston, our Supreme Court addressed whether having to file a candidate affidavit violated the free and equal elections clause, stating it "c[ould ]not agree . . . that [a] provision . . . which requires a candidate to file with his petition an affidavit stating his residence, his post office address, his election district, the name of the office for which he is a candidate, and other matters relating to his candidacy, are such restrictions upon the rights of the elector as to justify the courts in declaring the [provision] void" under the free and equal elections clause. 91 A. at 523 (emphasis added). The Court explained, "this duty is enjoined upon the candidate and not upon the elector. The rights of the voter are only incidentally involved." Id. For the reasons set forth above, the candidate affidavit requirement similarly does not violate the Pennsylvania Constitution.
Ultimately, the Court is persuaded by Secretary's arguments that the burden imposed by the candidate affidavit requirement for political body presidential elector candidates is minor and that there are legitimate, election administration and integrity bases for that requirement. Accordingly, we find no violation of the United States and Pennsylvania Constitutions in this matter.
IV. CONCLUSION
For the foregoing reasons, we hold that Candidates have failed to establish a clear right to a writ of mandamus and, conversely, that Secretary has established a clear right to the grant of summary relief in his favor and the dismissal of the Petition. Accordingly, Secretary's Cross-Application for Summary Relief is granted,
Candidates' Cross-Application for Summary Relief is denied, and the Petition is dismissed with prejudice.
The concurring opinion would dismiss the Petition with prejudice based on the conclusion that Candidates' "withdrawal" as candidates "abandoned their putative candidacy before we could decide the Petition," which renders the Petition moot. Clymer v. Schmidt (Pa. Cmwlth., No. 376 M.D. 2024, filed Aug. 22, 2024) (Wojcik, J., concurring), slip op. at 3-4. The concurring opinion likewise faults Candidates for not submitting the substitution paperwork for the Party's national candidates prior to their withdrawal, observing that "there was nothing to substitute because Candidates withdrew from whatever electoral status they may have claimed on August 6, 2024." Id. at 3. However, Section 980 of the Election Code states that
[i]n case of the death or withdrawal of any candidate nominated by any political body by nomination papers, the committee named in the original nomination papers may nominate a substitute in his place by filing in the proper office a substituted nomination certificate, which shall set forth the facts of the appointment and powers of the committee (naming all its members), of the death or withdrawal of the candidate, and of the action of the committee thereon, giving the name, residence and occupation of the candidate substituted thereby . . . .25 P.S. § 2940. This section impliedly, if not expressly, contemplates the withdrawal (or death) of a candidate nominated by a political body before the filing of a substitution notice. Section 978(b) of the Election Code requires a candidate nominated by a political body to withdraw "not later than the ordinary closing hour of said office on the seventh day next succeeding the last day for filing nomination papers for said office," 25 P.S. § 2938(b), which here was August 8, 2024. In any event, Candidates' actions in submitting their withdrawals and substitution documentation with Secretary appear to have been done in an effort to comply with the time frames set forth in the Election Code should the Court grant mandamus relief and order the acceptance of their Nomination Papers. Notably, there is, technically, no nomination for Candidates from which to withdraw as of yet, as the Department did not accept the Nomination Papers in the first instance. The Court should not punish Candidates by finding their Petition moot due to efforts to proactively comply with the Election Code should they be successful on that Petition.
ORDER
NOW, August 23, 2024, upon consideration of the Petition for Writ of Mandamus (Petition) filed by James N. Clymer and Steven E. Sylvester as Constitution Party Candidates for President and Vice President of the United States (Candidates), against Al Schmidt, the Secretary of the Commonwealth (Secretary), the Cross-Applications for Summary Relief filed by Candidates and Secretary, and the parties briefs, the Court GRANTS Secretary's Cross-Application for Summary Relief, DENIES Candidates' Cross-Application for Summary Relief, and DISMISSES the Petition with prejudice.
CONCURRING OPINION
MICHAEL H. WOJCIK, JUDGE.
I agree with the Majority that the Petition for Writ of Mandamus (Petition) should be dismissed with prejudice in this case. I write separately, however, because I would also dismiss the Petition on a different basis.
As this Court has explained:
The common law writ of mandamus lies to compel an official's performance of a ministerial act or a mandatory duty. "The burden of proof falls upon the party seeking this extraordinary remedy to establish his legal right to such relief." Mandamus requires "[1] a clear legal
right in the plaintiff, [2] a corresponding duty in the defendant, and [3] a lack of any other adequate and appropriate remedy at law." Mandamus is not available to establish legal rights but only to enforce rights that have been established. As a high prerogative writ, mandamus is rarely issued and never to interfere with a public official's exercise of discretion.Sinkiewicz v. Susquehanna County Board of Commissioners, 131 A.3d 541, 546 (Pa. Cmwlth. 2015) (citations omitted).
In fact,
[m]andamus is so rare that even where the plaintiff can establish the grounds for mandamus, its issuance is not automatic. It has been held that where a plaintiff seeks to compel a ministerial act and the act is mandatory, "its issuance is not a matter of right but in certain circumstances is a matter for the sound discretion of the court." Travis v. Teter, [87 A.2d 177, 179 (Pa. 1952)]. Accordingly, a writ of mandamus has been refused where its issuance would be inequitable or would cause "disorder and confusion in municipal or governmental departments." Waters v. Samuel, [80 A.2d 848, 849 (Pa. 1951)] (refusing a request for a writ to have police records revised to correct the birth date of a patrolman who had lied about his age to gain employment because of the confusion and disorder that would be caused by undertaking extensive record changes).Chadwick v. Dauphin County Office of Coroner, 905 A.2d 600, 604 n.6 (Pa. Cmwlth. 2006).
On August 5, 2024, the instant Petition was filed and alleged, in relevant part, that James N. Clymer and Steven E. Sylvester, the Presidential and Vice-Presidential Candidates (collectively, Candidates) of the Constitution Party (Party), are "placeholder candidates designated for [the] circulation of petitions; the [Party] has completed a nomination process and will, if this [P]etition is granted and the [N]omination [P]apers accepted, replace [Candidates] with their national candidates." Petition ¶3 (emphasis added). As relief, the Petition asked this Court to "(i) order the Department [of State] to accept and process the nomination of [C]andidates and provide one day for the re-delivery of the filing fees and any required affidavits; [and] (ii) provide a five-day period for objections to any newly filed information pursuant to the proposed order . . . ." Id. at 10.
Nevertheless, on August 8, 2024, well before this Court either considered the merits of the Petition or granted any relief, Candidates filed a Praecipe to Switch the Party's Candidates for President and Vice-President (Praecipe) in which they alleged that Candidates "will be withdrawing as political candidates. Attached and marked as Exhibit 'A' is the Political Body Candidate's Withdrawal Notices that were filed with the Commonwealth of Pennsylvania Department of State." Praecipe at 1. In turn, in the notarized affidavits attached to the Praecipe as Exhibit A, each Candidate affirmatively states that he "hereby withdraw[s his] name as a candidate for the OFFICE and POLITICAL BODY in the COUNTY and/or DISTRICT listed below for the General Election to be held [on] November 5, 2024." Praecipe, Exhibit A.
As a result of this filing, Candidates have abandoned their putative candidacy before we could decide the Petition. Notably, Candidates did not substitute Party's actual candidates for the office of President and Vice President before withdrawing their placeholder candidacies and before we could grant the Petition, which would have legitimatized their candidacies. This action occurred on August 16, 2024, when a Praecipe to Substitute was filed. At that point, however, there was nothing to substitute because Candidates withdrew from whatever electoral status they may have claimed on August 6, 2024. As our Supreme Court noted in In re Scroggin, 237 A.3d 1006, 1019 (Pa. 2020): "Although the use of a placeholder candidate is a permissible feature of the nominating process for political bodies, the [Pennsylvania Election Code (Election Code) draws no distinction between temporary candidates and permanent ones. In order to substitute the name of a bona fide nominee of a political body onto the ballot in that manner, a placeholder first must be duly nominated in accordance with the provisions of the Election Code." Thus, based on the confusion resulting from Candidates' gamesmanship under the provisions of the Election Code, I would dismiss the instant matter as moot.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§2600-3591.
As we have previously explained:
Although neither party argues the mootness of the [relief sought], we may sua sponte raise the issue of mootness as "courts cannot 'decide moot or abstract questions, nor can we enter a judgment or decree to which effect cannot be given.'" Orfield v. Weindel, 52 A.3d 275, 277 (Pa. Super. 2012) (citation omitted); see also Department of Public Welfare, Fairview State Hospital v. Kallinger, [615 A.2d 730 (Pa. 1992)] (sua sponte dismissing the appeal as moot). The mootness doctrine provides:
"The problems arise from events occurring after the lawsuit has gotten under way-changes in the facts or in the law-which allegedly deprive the litigant of the necessary stake in the outcome. The mootness doctrine requires that 'an actual case or controversy must be extant at all stages of review, not merely at the time the complaint is filed.'"
Pap's A.M. v. City of Erie, [812 A.2d 591, 599-600 (Pa. 2002)] (citation omitted).
In this case, the facts have changed.Battiste v. Borough of East McKeesport, 94 A.3d 418, 424 (Pa. Cmwlth. 2014); see also Commonwealth ex rel. Davis v. MacLean, 136 A. 240, 240 (Pa. 1927) ("A discussion of the question whether mandamus is the proper remedy on the facts alleged [is out of place] * * * for the reason that the [application before us is in a] moot case.") (alterations in original).
Accordingly, like the Majority, I would dismiss the Petition in the above-captioned matter with prejudice.
The Majority questions my suggested disposition by citing portions of Section 980 of the Election Code, 25 P.S. §2940, relating to the substitution of candidates following death or withdrawal. However, Section 102(a) of the Election Code defines "the word 'candidate' [as], unless the context otherwise requires, . . . both candidates for nomination and election." 25 P.S. §2602(a). In turn, Section 951(a) provides that, in order to be nominated as a candidate by a political body, "nomination of candidates for any office may also be made by nomination papers signed by qualified electors of the [s]tate, or of the electoral district for which the nomination is made, and filed in the manner herein provided." 25 P.S. §2911(a) (emphasis added). Thus, as indicated above, Candidates are not "candidates" for nomination or election unless and until the nominating papers are filed in the manner as directed in the Election Code, and no papers were filed herein thereby conferring such status prior to Candidates' putative "withdrawal" from the election. See, e.g., Packrall v. Quail, 192 A.2d 704, 706 (Pa. 1963) ("Section 976, [25 P.S. §2936,] therefore, requires only that the person seeking nomination not be the candidate of another political group at the time the nomination paper is filed. At the time of filing the nomination papers, [the candidate] had withdrawn his nomination petition and hence was not a candidate for the Democratic primary. Accordingly, [S]ection 976 did not prevent the acceptance of his nomination paper as the candidate of the Good Government Party.") (citations and footnotes omitted and emphasis in original); see also Section 977 of the Election Code, 25 P.S. §2937 ("All nomination petitions and papers received and filed within the periods limited by this act shall be deemed to be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition or paper be set aside.") (emphasis added); In re Benkoski, 943 A.2d 212, 216 (Pa. 2007) ("[W]here a candidate has filed a defective nomination petition to appear on the primary election ballot, Section 976(e)[, 25 P.S. §2936(e),] precludes that candidate from thereafter filing nomination papers to appear on the general election ballot for the same position.") (emphasis added).