Opinion
No. 31 EAP 2019 No. 32 EAP 2019
02-19-2020
IN RE: Nomination Papers of Sherrie COHEN as Candidate FOR the OFFICE OF PHILADELPHIA CITY COUNCIL-AT-LARGE Appeal of: Sherrie Cohen In re: Nomination Papers of Sherrie Cohen as Candidate for the Office of Philadelphia City Council-at-Large Appeal of: Sherrie Cohen
OPINION FOLLOWING THE JUDGMENT OF THE COURT
On October 3, 2019, this Court reversed the order of the Commonwealth Court and directed that the name of Sherrie Cohen be placed on the November 5, 2019 ballot as an independent candidate for Philadelphia City Council-at-Large. See In re Nomination Papers of Sherrie Cohen , 218 A.3d 387 (Pa. 2019). Because the Board of Elections only had until the close of business on October 4, 2019 to add Cohen's name to the ballot, we issued our order noting that an opinion would follow. We now set forth our reasons for concluding that Cohen's withdrawal as a candidate in the Democratic primary election for City Council-at-Large did not preclude her from running in the general election as an independent candidate.
On March 12, 2019, Cohen filed nomination petitions to appear on the ballot in the May 21, 2019 Democratic primary election for an at-large seat on City Council. An experienced candidate, she hired a campaign staff, raised money, and sought endorsements. Prior to the primary, a controversy developed over comments that Cohen's campaign manager had made about another candidate, Appellee Deja Lynn Alvarez. As a result, Cohen decided to end her campaign.
Pursuant to Section 914 of the Election Code (Code), a candidate may withdraw her name by filing a written request in the office in which her nomination petition was filed not later than 15 days after the last day for filing nomination petitions. 25 P.S. § 2874. The last date for Cohen to do so was March 27, 2019. However, Section 978.4 of the Code provides that after the deadline has passed, a candidate may petition the court of common pleas to withdraw her name, "and the court shall order the withdrawal of said candidate's name ... except upon a showing of special circumstances." 25 P.S. § 2938.4.
Cohen filed a petition to withdraw on April 17, 2019, which the court of common pleas granted on April 18, 2019. The same day, Cohen filed a change of registration from the Democratic Party to independent voter.
Section 951.1 of the Election Code provides, in relevant part:
Any person who is a registered and enrolled member of a party during any period of time beginning with thirty (30) days before the primary and extending through the general or municipal election of that same year shall be ineligible to be the candidate of a political body in a general or municipal election held in that same year[.]
25 P.S. § 2911.1. Because Cohen was not a registered member of a party thirty days before the May 21, 2019 primary, Section 951.1 is not implicated in this matter.
On August 1, 2019, Cohen filed nomination papers to appear on the November 5, 2019 general election ballot as the candidate for A Better Council Party for an at-large seat on City Council. On August 7, 2019, Appellee Alvarez and Appellee Christopher M. Vogler, who is a duly qualified elector, filed separate petitions to set aside Cohen's nomination papers. By agreement of the parties, the cases were heard together.
In her petition, Appellee Alvarez asserted that because Cohen "was a bona fide [Democratic] candidate" in the municipal primary election, she was barred from running in the November 5, 2019 municipal election pursuant to Section 976(e) of the Code, (commonly referred to as a "sore loser provision"), which provides, in relevant part:
When any ... nomination paper is presented in the office ... of any county board of elections for filing within the period limited by this act, it shall be the duty of said ... board to examine the same. No ... nomination paper ... shall be permitted to be filed ... if the candidate named therein has filed a nomination petition for any public office for the ensuing primary, or has been nominated for any such office by nomination papers previously filed.
As recognized by the trial court:
The "ensuing primary" language dates from a time when nomination papers for the general election were required to be filed before the primary election was held. Baronett v. Tucker , 365 A.2d 179, 180 (Pa. Cmwlth. 1976). That time requirement was struck down as unconstitutional. Salera v. Tucker , 399 F.Supp. 1258 (E.D. Pa. 1975), aff'd mem. , 424 U.S. 959 [96 S.Ct. 1451, 47 L.Ed.2d 727] (1976). The Commonwealth Court subsequently interpreted the "ensuing primary" language of Section 976 of the Election Code to refer to the "primary immediately preceding the general election" in which the candidate seeks a ballot position. Baronett , 365 A.2d at 181.
Trial Ct. Op., 8/16/19, at 4 n.4.
The trial court held a hearing on August 12, 2019. Cohen testified that she filed nomination petitions to be elected as a Democratic candidate for an at-large seat on City Council. N.T., 8/12/19, at 44. She conceded that she sought the endorsement of the Philadelphia City Democratic Committee but did not receive it despite having been an endorsed candidate in 2015. Id. at 48-49. She stated that after the incident involving her campaign manager and Appellee Alvarez, she lost the support of the Victory Fund, an organization that supports LGBT candidates. The Victory Fund had supported Cohen in her unsuccessful City Council campaigns in 2011 and 2015. Id. at 53-54. Cohen identified a Facebook post in which she stated that she decided to suspend her campaign because she saw no true path to victory. Id. at 62-63.
On August 16, 2019, the trial court issued an order granting the petitions to set aside Cohen's nomination papers. In an opinion in support of the order, the court looked to Packrall v. Quail , 411 Pa. 555, 192 A.2d 704 (1963), where this Court held that when a candidate withdraws his nomination petitions for a primary ballot "within the permitted period," his subsequently filed nomination papers may be accepted. Id. at 705. The trial court distinguished the instant matter from Packrall because "Cohen required Court intervention to leave the primary ballot." Trial Ct. Opinion at 9. The court determined this to be the decisive factor in concluding that she was "subject to the ‘sore loser’ provision." Id.
Cohen filed a timely appeal to the Commonwealth Court. In a single-judge memorandum and order, the Honorable Michael H. Wojcik affirmed the order of the trial court. The Commonwealth Court rejected Cohen's reliance on Packrall , a decision that it had previously explained as follows:
We believe the basis for the holding in Packrall is that a candidate has the time to voluntarily withdraw his or her petition - a grace period in which the person can decide if he or she wants to participate in that election cycle as a candidate of a particular party. When a person withdraws of his or her own volition within the time for filing, it "undoes," ab initio , the filing because a person gets to choose whether he or she wants to go through the primary process to seek an office.
Lachina v. Berks County Board of Elections , 887 A.2d 326, 329 (Pa. Cmwlth.), aff'd 584 Pa. 493, 884 A.2d 867 (2005).
The court also rejected Cohen's reliance on Oliviero v. Diven , 908 A.2d 933 (Pa. Cmwlth. 2006). In Oliviero , the court granted Michael Diven leave to withdraw his nomination petitions as a Republican candidate for state representative pursuant to Section 978.4 of the Code. Diven subsequently launched a write-in campaign, which he won. Petitioners filed a motion for preliminary injunction seeking to prevent Diven from being certified as the Republican candidate. The Oliviero court denied the requested relief. Judge Wojcik noted the distinctions between Packrall and the instant matter (Packrall's withdrawal of nomination petitions as of right versus Cohen's withdrawal by leave of court) and Oliviero and the instant matter (Diven's write-in campaign following withdrawal of nomination petitions by leave of court versus Cohen's filing of nomination papers following withdrawal of nomination petitions by leave of court). Based on these distinctions, Judge Wojcik held, "as a result, neither [ Packrall nor Oliviero ] compels a different result in this case." Cmwlth. Ct. Op. at 9.
Like the trial court, the Commonwealth Court relied on the portion of this Court's decision in Benkoski stating that "a plain meaning approach to the statutory language warrants the conclusion that the filing of a nomination petition for any public office for a primary election precludes the individual from thereafter submitting nomination papers to appear on the ballot for the general election for the same office." In re Benkoski , 596 Pa. 267, 943 A.2d 212, 216 (Pa. 2007).
On September 26, 2019, this Court granted allowance of appeal limited to the following issue:
Did the Commonwealth Court and the trial court err by not considering the withdrawal of Candidate's nomination petition by court order to be a voluntary withdrawal that would allow her to file nomination papers pursuant to Packrall v. Quail , 411 Pa. 555, 192 A.2d 704 (1963) ?
In re Nomination Papers of Sherrie Cohen , 218 A.3d 383, 2019 WL 4687075.
Cohen asserts that the Commonwealth Court erred by failing to consider withdrawal by court order under Section 978.4 to have the same effect as voluntary withdrawal pursuant to Section 914. Her argument rests on Packrall , supra , where the Board of Elections of Washington County refused to accept the nomination papers of Mike Packrall as candidate of the Good Government Party for the office of county commissioner. Packrall had filed nomination petitions to be placed on the primary ballot as a Democratic candidate for the offices of county commissioner and county treasurer. However, he withdrew his petitions within the permitted period, and thereafter the Good Government Party filed papers nominating him for county commissioner. The Board of Elections refused to accept the nomination papers because Packrall's prior filing of nomination petitions disqualified him. The court of common pleas affirmed. On appeal, this Court reversed, holding that Section 976 requires only that the person seeking nomination not be the candidate of another political group at the time the nomination paper is filed. Packrall , 192 A.2d at 706. Because Packrall had withdrawn his nomination petition, and thus was not a candidate for the Democratic primary, Section 976 did not prevent the acceptance of his nomination paper as the candidate of the Good Government Party. Id. Accordingly, Cohen maintains that Packrall has severely restricted Section 976, which provides that a candidate who has filed a nominating petition for any public office during the primary election may not subsequently be nominated by nomination papers.
Section 978.4 was added to the Code in 1980, allowing a candidate to withdraw her nomination petition beyond the deadline set forth in Section 914 by filing a petition in the court of common pleas. Section 978.4 provides that the court shall order the withdrawal "except upon a showing of special circumstances." 25 P.S. § 2938.4. This was the provision under which the court of common pleas permitted Cohen to withdraw her nomination petitions on April 18, 2019. Cohen argues that the Commonwealth Court and the trial court erroneously created an artificial line between administrative withdrawals under Section 914 as opposed to court-ordered withdrawals under Section 978. Appellant's Brief at 37. She notes that in Packrall , the candidate withdrew his nomination petitions within the fifteen-day time period, and despite the language of the sore loser statute, this Court allowed him to file nominating papers and run as an independent in the general election. Cohen asserts that the Commonwealth Court erroneously limited "the holding of Packrall by creating this artificial distinction between administrative and court ordered withdrawal. The Commonwealth Court failed to recognize both withdrawals were voluntary withdrawals, which voided the nominating petitions ab initio. " Id. at 39.
Senator Vincent Fumo stated that he was the prime sponsor of the amendment, and noted:
It was originally drafted to alleviate some of the problems that we have in allowing candidates a sufficient amount of time to withdraw, particularly at the time at issue that we faced in Philadelphia with some 105 candidates running for councilman-at-large for five seats and not having the opportunity to know what their ballot position was until just before the last date of filing. Had they known that they did not have a good ballot position, many of those individuals might have withdrawn and made it much simpler for the Election Commission to conduct the election.
Legislative Journal - Senate, May 21, 1980 at 1669.
Neither the City Commissioners of Philadelphia nor any individual challenged Cohen's withdrawal. In In re Petition of Dietterick , 136 Pa.Cmwlth. 66, 583 A.2d 1258 (1990), the Commonwealth Court found that special circumstances existed to prevent the court from ordering withdrawal where ballots had already been printed and the court had serious doubts about the effectiveness of sticker paste-overs to replace the candidate's name. More importantly, absentee ballots had already been sent out, and there was testimony that amended absentee ballots sent to military personnel could not be returned before the deadline.
Like the Commonwealth Court, Cohen also relies on Oliviero , supra. However, she focuses on a different aspect of the decision. As noted, the court of common pleas granted Diven leave to withdraw his nomination petitions as a Republican candidate for state representative pursuant to Section 978.4 of the Code. Diven subsequently launched a write-in campaign, which he won. The Commonwealth Court denied a preliminary injunction seeking to prevent Diven from being certified as the Republican candidate. Judge Wojcik deemed Oliviero inapposite because it involved a write-in campaign rather than the filing of nomination papers following court-approved withdrawal.
However, Cohen relies on Oliviero for a different point:
[The] "sore loser" provisions of the Election Code stand for the proposition that once a candidate's name has been stricken from the primary ballot or the candidate loses his party's nomination in the primary, the candidate is then precluded from filing nomination papers for the general election. They are not applicable here as Diven's name was not "stricken" from the ballot and Diven did not "lose" the primary. Rather, Diven withdrew his nomination petition and voluntarily chose not to participate in the primary process. In doing so, Diven's voluntary withdrawal "undid" ab initio his nomination petition. Once Diven withdrew his nomination petition, his name did not appear on the ballot as a candidate for the Republican Party in the primary election.
Oliviero , 908 A.2d at 939 (citation omitted).
Cohen asserts that Oliviero "very clearly indicated there is no distinction between administrative withdrawal in fifteen days through the Board of Elections or later court ordered withdrawal." Appellant's Brief at 42. Cohen points out the trial court "ignored" Oliviero when it wrote:
Unlike in Packrall , where the candidate was able to choose whether he wanted to go through with the primary process, [Cohen] required Court intervention to leave the primary ballot. This process did not undo, ab initio , her initial filing of nomination petitions and thus she is subject to the "sore loser" provisions.
Trial Ct. Op. at 9. Cohen also asserts that the Commonwealth Court's opinion did not properly address Oliviero . Id. at 43.
Cohen next draws our attention to Benkoski , supra. In that case, Edward Benkoski, Sr. filed nomination petitions to appear on the May 2007 ballot as a candidate for Supervisor of Bear Creek Township. However, the petitions were set aside due to non-compliance with the Ethics Act. Benkoski thereafter filed nomination papers as an Independent candidate on the November 2007 general election ballot. The court of common pleas held that because Benkoski was stricken from the primary election ballot, he was precluded from appearing on the general election ballot. A panel of the Commonwealth Court reversed, concluding that the setting aside of a nomination petition or paper undoes, ab initio , the initial filing of a candidate's nomination petition or paper. As summarized by this Court:
[The Commonwealth Court] analogized the setting aside of a nomination petition to a voluntary withdrawal of such a petition to conclude that "there was technically no filing of the nomination petition as the petition has been deemed invalid." Thus, the court held that Section 976(e) does not preclude a candidate from subsequently filing nomination papers to appear on the ballot in the general election where his or her primary nominating petition has been set aside.
Benkoski , 943 A.2d at 214 (citation omitted). This Court granted allowance of appeal and reversed the Commonwealth Court. In doing so, the Court spoke approvingly of Lachina , supra , where Judge Pellegrini held that a candidate who was removed from the ballot for defects in her nomination petition could not submit nomination papers for the general election for the same office. As noted, Judge Pellegrini recognized that the voluntary withdrawal of the candidate's nomination petition in Packrall " ‘undoes,’ ab initio , the filing." Lachina , 887 A.2d at 329. Furthermore, Judge Pellegrini contrasted Packrall to Baronett , supra , where the Commonwealth Court held that a candidate who ran unsuccessfully in the Democratic primary was precluded from filing nomination papers for the same position on the general election ballot as the candidate of the Federalist Body.
This Court held that the Lachina court's construction of "Section 976(e) comports with the ... reference to that section as a ‘sore loser’ provision." Benkoski , 943 A.2d at 214. We then noted that under the plain meaning of Section 976(e), "the filing of a nomination petition for any public office for a primary election precludes the individual from thereafter submitting nomination papers to appear on the ballot for the general election for the same office." Id. at 216. This Court further noted, "[a]lthough Packrall is also arguably in tension with the plain language of the statute, we decline to extend a holding concerning the voluntary withdrawal of a nomination petition to unsuccessful candidates attempting to circumvent their filing of defective nomination petitions." Id.
Cohen asserts that Benkoski affirmed the concept in Packrall that a voluntary withdrawal allows a candidate to file nomination papers as an Independent. According to Cohen, it did not overrule Packrall , but simply declined to extend its holding to grant relief to a candidate who was removed from the primary ballot. "Nowhere in Benkoski does the Supreme Court limit the Packrall case to only those cases where the candidates have withdrawn their nomination petitions administratively. Any withdrawal, either administratively or by court order, is treated as a voluntary withdrawal." Appellant's Brief at 50.
Appellees recognize that the withdrawal of nomination petitions prior to the deadline for voluntary withdrawal undoes the filing ab initio. However, they do not explain why voluntary withdrawal of nomination petitions with court approval should not have the same effect under this Court's decisions in Packrall and Benkoski.
We agree with Cohen that "[t]he Commonwealth Court failed to acknowledge that the important dividing line in this area of the law is between voluntary withdraw[als] and candidates getting stricken from the ballot." Appellant's Brief at 47. The decisive factor underpinning this Court's refusal to apply Packrall in Benkoski is not present in this case. Rather, application of Packrall , a case that has been central to our election jurisprudence for more than half a century, is appropriate where a candidate's nomination petitions have not been stricken but have simply been withdrawn. Because there is no principled reason to distinguish between the voluntariness of a withdrawal under Section 914 or Section 978.4, Cohen is entitled to relief from this Court. This is especially so in light of "the longstanding and overriding policy in our Commonwealth to protect the elective franchise." In re Nomination Petition of Driscoll , 577 Pa. 501, 847 A.2d 44, 49 (2014).
For these reasons we ordered that Cohen's name be placed on the ballot for the 2019 general election.
Chief Justice Saylor opines that pursuant to Benkoski , Packrall should be limited to "a voluntary withdrawal of a nomination petition within the statutory period." Saylor, C.J. Dissenting Op. at 1091. In Benkoski , this Court stated, "we hold that, where a candidate has filed a defective nomination petition to appear on the primary election ballot, Section 976(e) precludes that candidate from thereafter filing nomination papers to appear on the general election ballot for the same position." Benkoski , 943 A.2d at 216. Because the decisive factor in Benkoski was the defective nomination petition, rather than the nature of the withdrawal (administratively or by court permission), reliance on Benkoski to preclude Cohen from filing nomination papers as an independent candidate is unavailing.
With respect to Justice Wecht's position that this Court should overrule Packrall , Chief Justice Saylor correctly points out that the Legislature has not altered the material language of Section 976 despite the fact that Packrall has existed for more than fifty years. Saylor, C.J. Dissenting Op. at 1091, n.1. In addition, the question whether Packrall should be overruled as contrary to the plain language of Section 976 was not raised in the courts below and therefore is not properly raised in this Court. See Pa.R.A.P. 302(e) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
Justice Baer joins the Opinion Following the Judgment of the Court.
Justice Donohue files a concurring opinion in which Justice Todd joins.
Chief Justice Saylor files a dissenting opinion in which Justice Dougherty joins.
Justice Wecht files a dissenting opinion.
JUSTICE DONOHUE, concurring
I joined the position of the Lead Opinion placing Appellant Sherrie Cohen on the general election ballot as a candidate for Philadelphia City Council-at-Large when the matter was presented to us on an expedited basis. I joined the Lead Opinion's position because I saw no principled reason not to apply this Court's prior decision in Packrall v. Quail , 411 Pa. 555, 192 A.2d 704 (1963), to the circumstances presented in the present case. Having reviewed Justice Wecht's thoughtful and well-reasoned Dissenting Opinion, however, I find it to be highly persuasive and, in my view, should be the prevailing interpretation of Section 976(e) of the Election Code, 25 P.S. § 2936(e), in future cases.
Justice Todd joins this concurring opinion.
CHIEF JUSTICE SAYLOR, dissenting
The lead Justices fault the appellees for supplying no principled reason to distinguish between the voluntary withdrawal of a nomination petition within the Election Code's 15-day grace period, see 25 P.S. § 2874, and a later withdrawal subject to the requirement of court approval, see id. § 2938.4. See Lead Opinion, at 1089–90. To the contrary, I find that appellee Alvarez, at least, has provided a persuasive explanation.
In this regard, appellee Alvarez couches the issue presented as:
whether there should be an exception to the plain language of Section 976, which prohibits the filing of any nomination papers "if the candidate named therein has filed a nomination petition for any public office for the ensuing primary," for a candidate who actively participated in the primary election but petitioned to the court to withdraw her nomination after believing she could not win.
Brief for Appellee Alvarez at 6. Her argument proceeds to reconcile the void ab initio logic of Packrall v. Quail , 411 Pa. 555, 192 A.2d 704 (1963), with Section 976(e) of the Election Code, 25 P.S. § 2936(e), as follows:
The key determinant of whether someone has "filed a nomination petition" is whether someone has chosen to go through the primary process. [Appellant] chose to go through the primary process. She ran for office, sought endorsement, [and] was placed on the ballot. Only when her campaign began to falter did she choose to end it. This is distinct from Packrall , where the candidate withdrew before the primary process had begun.
* * *
[Appellant] would have it that candidates who cannot win after running in the primary could have their second chance as long as they quit the day before the primary election. This cannot be.
Instead, the plain language of Section 976(e) should govern[.]
Id. at 11-13; accord id. at 7 ("The sore loser statute cannot be used to game the system.").
Although I agree with the lead Justices that Packrall should not be overruled, its approach remains "arguably in tension with the plain language of the statute." In re Benkoski , 596 Pa. 267, 274, 943 A.2d 212, 216 (2007). Accordingly -- and consistent with the determinations of the intermediate and county courts -- it seems to me that Packrall 's effect should be confined to the scenario in which it arose, i.e. , a voluntary withdrawal of a nomination petition within the statutory grace period. Cf. id. (declining to extend Packrall for the benefit of candidates removed from ballots based on defects in their nomination petitions). In this regard, the concern about candidates being empowered -- contrary to the plain language of Section 976(e) -- to make strategic decisions to shift tracks after having proceeded deep into the primary process is particularly well founded.
This Court has explained: "whenever our Court has interpreted the language of a statute, and the General Assembly subsequently amends or reenacts that statute without changing that language, it must be presumed that the General Assembly intends that our Court's interpretation become part of the subsequent legislative enactment." Verizon Pa., Inc. v. Commonwealth , 633 Pa. 578, 598, 127 A.3d 745, 757 (2015). Section 976 has been amended several times since Packrall 's issuance more than 50 years ago, but the Legislature has not altered the material language of the statute.
Act of June 3, 1937, P.L. 1333, as amended , 25 P.S. §§ 2600 -3591.
For the above reasons, I would have affirmed, crediting the rationales of both the Commonwealth Court and the court of common pleas.
Justice Dougherty joins this dissenting opinion.
JUSTICE WECHT, dissenting The Lead Opinion contends that "there is no principled reason" to refrain from extending this Court's decision in Packrall v. Quail , 411 Pa. 555, 192 A.2d 704 (1963), to the circumstances of this case. Opinion Following the Judgment of the Court ("OFJC") at 1089–90. I disagree. Packrall directly conflicts with the text of the Election Code's "sore loser" provision. Vindicating the statute's plain language by overruling that plainly erroneous decision would be the principled reason for denying relief here.
In Packrall , this Court first considered the effect of Section 976(e) of the Election Code,1 which provides:
When any ... nomination paper is presented in the office of the Secretary of the Commonwealth or of any county board of elections for filing within the period limited by this act, it shall be the duty of the said officer or board to examine the same. No ... nomination paper ... shall be permitted to be filed ... if the candidate named therein has filed a nomination petition for any public office for the ensuing primary or has been nominated for any such office by nomination papers previously filed ....
25 P.S. § 2936(e) (emphasis added). At issue in Packrall were nomination papers filed by two candidates who earlier had filed nomination petitions to join the Democratic Party's primary for Washington County commissioner and treasurer, but then later withdrew those filings "[w]ithin the period permitted." Packrall , 192 A.2d at 705 ; see id. at 705 n.1 (citing the then-prevailing law providing for the withdrawal as of right of nomination petitions "any time within seven days after the last day for filing the same"). In reversing the lower court's order setting aside the candidates' nomination papers, this Court "conclude[d] that the court below attributed the wrong purpose to section 976," and opined that the provision "requires only that the person seeking nomination not be the candidate of another political group at the time the nomination paper is filed. " Id. at 706 (emphasis in original).
This Court last reviewed Packrall 's impact vis-à-vis Section 976(e) in In re Benkoski , 596 Pa. 267, 943 A.2d 212 (2007). In that case, nomination petitions for several Democratic candidates had been stricken for non-compliance with the Ethics Act for failure to file timely statements of financial interests. See 65 Pa.C.S. § 1104(b)(2). The candidates thereafter filed nomination papers to appear as independent candidates on the November 2007 general election ballot. The court of common pleas struck the candidates pursuant to Section 976(e) due to their non-conforming nomination petitions. The Commonwealth Court reversed, reasoning that the striking of the nomination petitions undid their initial filing ab initio , and thus did not preclude the candidates from being placed on the general election ballot by way of new or second nomination papers. Benkoski , 943 A.2d at 213-14.
We reversed. We held that, "where a candidate has filed a defective nomination petition to appear on the primary election ballot, Section 976(e) precludes that candidate from thereafter filing nomination papers to appear on the general election ballot for the same position." Id. at 216. In rejecting the candidates' request to extend Packrall to situations where nomination petitions are stricken for failure to comply with filing requirements, we noted that the plain language of Section 976(e) "warrants the conclusion that the filing of a nomination petition for any public office for a primary election precludes the individual from thereafter submitting nomination papers to appear on the ballot for the general election for the same office." Id. at 215-16 (emphasis added). Though we strained to adhere to precedent, we expressly cautioned that Packrall was "arguably in tension with the plain language of the statute," id. at 216, thus calling its continuing validity into question.
Packrall was wrongly decided, and it should be overruled. The Election Code clearly and unambiguously bars the Secretary of the Commonwealth and the county boards of elections from permitting nomination papers to be filed "if the candidate named therein has filed a nomination petition for any public office " in the same election cycle. See 25 P.S. § 2936(e). The General Assembly chose to mandate that a candidate who signals his or her intent to seek a political party's nomination by filing a nomination petition may not subsequently file nomination papers to be a political body's candidate for any public office to be voted on in the general election. In eschewing the plain language of Section 976(e) in favor of its hidden (alleged) "purpose," the Packrall court distorted the scope of the trial courts' inquiry. Instead of asking simply whether a candidate previously "has filed a nomination petition for any public office," id. , Packrall introduced a new (and wholly non-statutory) qualification that the filer merely not be an active candidate for a political party's nomination at the time that nomination papers are filed. This was pure judicial invention. By its own terms, Section 976(e) makes no exception for candidates who previously filed nomination petitions but whose names did not ultimately appear on the primary ballot, whether due to withdrawal or filing defects requiring the petitions to be set aside or stricken. See Baronett v. Tucker , 26 Pa.Cmwlth. 559, 365 A.2d 179, 181 (1976) ("We believe ... that Section 976 of the Code ... requires the Secretary to reject the nomination papers of any candidate who has filed a petition for, or who has actually participated in, that primary immediately preceding the general election in which he seeks a ballot position."). Many might view the statute as harsh. Many might think it unwise. But it is not subject to judicial reformation. And that is the fatal flaw both of Packrall and of today's Lead Opinion.
Moreover, the Packrall Court in any event likely misidentified the original purpose of Section 976. "[F]irst enacted by section 8 of the Act of 1913, P.L. 719, ... [t]he provisions in the acts against filing nominating petitions of more than one political party for the same office [was] popularly known as ‘Anti-Party Raiding Legislation’." Appeal of Magazzu , 355 Pa. 196, 49 A.2d 411, 412 (1946) (emphasis added); see generally Working Families Party v. Commonwealth , ––– Pa. ––––, 209 A.3d 270, 292-94, 293 n.13 (2019) (Wecht, J., concurring and dissenting) (tracing the history of anti-fusion laws in the twentieth century). "The obvious purpose was to avoid the practice of one political faction dominating both political parties in the primaries. What the statute forbids is for 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." Magazzu , 49 A.2d at 412. That purpose was accomplished by "requiring a candidate to make affidavit of facts pertinent to his candidacy." Winston v. Moore , 244 Pa. 447, 91 A. 520, 523 (1914) ; see also id. ("No man need be a candidate for office unless he chooses to be.").
Two decades later, the General Assembly reaffirmed the legislation's exclusionary aim by adopting the Party Raiding Act, which "requir[ed] each candidate" for political office "to include in the affidavit filed with his nomination petition a statement that he is not a candidate for nomination for the same office of any party other than the one designated in such petition." Wilson v. Phila. Cty. , 319 Pa. 47, 179 A. 553, 553 (1935) (per curiam ). These provisions, including Section 976, were later subsumed by the Election Code of 1937 and extended to cover nomination papers. See In re Street , 499 Pa. 26, 451 A.2d 427, 430 (1982) ("[N]o candidate may seek the nominations of both a political party and a political body." (citing Sections 976(e) (affidavits accompanying nomination petitions) and 979(e) (affidavits accompanying nomination papers)) (emphasis added); In re Substitute Nomination Certification of Moran , 739 A.2d 1168, 1170-72 (Pa. Cmwlth. 1999) (concluding that Section 980 of the Election Code, 25 P.S. § 2940, prohibits a political body from filling a vacancy by nominating "any person who was a candidate for nomination by any political party for any office"). As this Court's pre- Packrall precedents demonstrate, it was long understood that the initial filing of a nomination petition, without more, triggered the preclusive effects contemplated here.
Those federal courts which have examined the Election Code's "sore loser" provisions also have understood them to bar candidates who previously had filed nomination petitions from subsequently filing nomination papers in the same election cycle. In Reform Party of Allegheny County v. Allegheny County Department of Elections , 174 F.3d 305 (3d Cir. 1999) (en banc ), the court observed that Section 976 "bar[red] a third party from nominating a candidate" who had filed nomination petitions for both the Democratic and Republican Party primaries, "even though she did not lose either primary race and was thus not a sore loser." Id. at 317. Accordingly, the court affirmed the district court's order enjoining the Secretary of the Commonwealth "from enforcing the provisions of Sections 2911(e)(5) and 29[36](e) of the Code to prevent a minor political party from nominating a candidate for any office referred to in Section 2870(f) of the Code because that candidate files a petition for a major party nomination to that office. " Id. at 318 n.13 (emphasis added); see also Williams v. Tucker , 382 F.Supp. 381, 386 (M.D. Pa. 1974) ("Sections 2913(b) and (c) and Section 2911(e)(5) taken together require a candidate to choose between the primary route and the nomination paper route to the general election ballot. These sections prevent a candidate who has filed nomination papers from running in the primary and prevent a candidate who has lost in the primary from filing nomination papers.").
Because the statute's prohibition on the filing of nomination papers does not necessarily turn on the results of a primary election, calling Section 976(e) a "sore loser" provision is a misnomer. Indeed, the statute also bars political bodies from nominating the "happy winners" of a party's primary. Cf. In re Zulick , 832 A.2d 572, 583 n.13 (Pa. Cmwlth. 2003), aff'd , 575 Pa. 140, 834 A.2d 1126 (2003) (per curiam ) (declining "to address whether a minor party can nominate a ‘happy winner’ of a major party primary where cross-filing is permitted").
Likewise, in rejecting a constitutional challenge to a California election statute similar to the "sore loser" provision here, the High Court in Storer v. Brown , 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), noted that the challenged language not only prohibited "a candidate who has been defeated in a party primary" from being "nominated as an independent" candidate in the general election, but also barred any person from "fil[ing] nomination papers for a party nomination and an independent nomination for the same office," irrespective of the results of a primary election. Id. at 733, 749, 94 S.Ct. 1274 (citing Cal. Elec. Code § 6402 (1974) ). In overlooking the foregoing authority, the Lead Opinion's rationale relies exclusively upon a principle derived from a judicial carve-out unsupported by the text of the Election Code. But if the General Assembly had intended to permit political bodies to nominate candidates who previously had filed and withdrawn nomination petitions in the same election cycle, it could have done so clearly in the Code. As the legislature made no such provision, neither may we do so by judicial fiat. See In re Guzzardi , 627 Pa. 1, 99 A.3d 381, 386 (2014) ("[T]he judiciary should act with restraint, in the election arena, subordinate to express statutory directives.").
When Packrall was decided, the filing deadline for nomination papers fell only three weeks later in the election calendar than the deadline for nomination petitions. Compare 25 P.S. § 2873(d) ("All nomination petitions shall be filed on or before the tenth Tuesday prior to the primary."), with Salera v. Tucker , 399 F.Supp. 1258, 1264 (E.D. Pa. 1975), aff'd mem. , 424 U.S. 959, 96 S.Ct. 1451, 47 L.Ed.2d 727 (1976) (citing Act of June 3, 1937, P.L. 1333, § 913, as amended , Act of March 6, 1951, P.L. 3 § 9, requiring nomination papers to be filed on or before the seventh Wednesday prior to the primary). While this condensed timeframe for circulating petitions and papers for signatures might have had the practical effect of forcing candidates to choose one of the two paths to the general election ballot, the General Assembly also opted expressly to preclude candidates from filing nomination papers where they previously had filed nomination petitions, and vice-versa. See 25 P.S. § 2911(e)(5) ("There shall be appended to each nomination paper offered for filing an affidavit of each candidate nominated therein, 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."); Brown v. Finnegan , 389 Pa. 609, 133 A.2d 809, 811, 813 (1957) (affirming the rejection of nomination papers where the plaintiffs filed non-conforming affidavits after their names "had been presented" as candidates by nomination petitions).
Moreover, Packrall at least purported to distinguish the case circumstances from the explicit statutory disqualification; the instant Petitioner's attempt to liken her situation to the facts of Packrall is in any event inapt. Packrall withdrew his nomination petitions within the then-prevailing seven-day period to do so by right. Here, by contrast, Petitioner exceeded the fifteen-day safe harbor withdrawal period by nearly three weeks, thus necessitating leave of court for withdrawal. As the record indicates, Petitioner's change of heart came after more than a month of active campaigning for the Democratic Party's nomination, and appears to have had as much to do with unfavorable ballot position as it did with the loss of endorsements and bad press stemming from the lingering controversy involving Objector Alvarez. See Notes of Testimony, 8/12/2019, at 44-56, 60-63. But even the Lachina Court's decision, on which Petitioner and the Lead Opinion principally rely, understood Packrall 's limited holding to apply only to voluntary withdrawals executed "within the time for filing. " Lachina v. Berks Cty. Bd. of Elections , 887 A.2d 326, 329 (Pa. Cmwlth. 2005) (emphasis added). In placing the burden on Appellees to explain why Section 976's specific language should not be read more expansively, OFJC at 1089–90, the Lead Opinion goes beyond even Packrall 's approach, short shriving Packrall 's limiting principle in the process.
See In re Challenge to Objection to Nominating Petitions of Evans , 73 Pa.Cmwlth. 634, 458 A.2d 1056, 1057 n.2 (1983) ("Section 914 of the Election Code, 25 P.S. § 2874, was amended in 1980 by Section 3 of the Act of July 11, 1980, P.L. 591, to allow fifteen days subsequent to the last day for filing nomination petitions to withdraw as a candidate.... The previous provisions of the Election Code allowed only seven days to withdraw.").
Nor was Petitioner's belated withdrawal without consequence. By remaining in the race until after the ballot order was set, Petitioner denied seventeen other candidates a more favorable position. See Julie Terruso & Chris Brennan, From a Horn & Hardart Can, democratic socialist and transgender candidate draw top Council ballot spots , Phila. Inquirer (Mar. 20, 2019), https://www.inquirer.com/news/ballot-position-philadelphiaprimary-municipal-at-large-politics-20190320.html (identifying Petitioner as having drawn the seventeenth ballot position among a field of thirty-four Democratic primary candidates vying for five at-large seats on the Philadelphia City Council).
Therefore, while I concur in the Lead Opinion's conclusion that a candidate's withdrawal from a party primary via court order pursuant to Section 978.4 of the Code, 25 P.S. § 2938.4, is no less "voluntary" than a withdrawal in writing within the fifteen-day safe harbor period, I believe, consistent with the plain language of the Election Code, that Petitioner's path to the general election ballot was statutorily foreclosed by her earlier decision to file a nomination petition for the Democratic Party's primary. This is no mere exercise in semantics. Although we must construe our election laws liberally "so as not to deprive an individual of his right to run for office, or the voters of their right to elect a candidate of their choice," In re Ross , 411 Pa. 45, 190 A.2d 719, 720 (1963), that rule of construction does not grant this Court license to act as a super-legislature, free to rewrite provisions we deem unfair to candidates for political office. In re Cianfrani , 467 Pa. 491, 359 A.2d 383, 384 (1976) ("[T]he policy of the liberal reading of the Election Code cannot be distorted to emasculate those requirements necessary to assure the probity of the process."). That is particularly true when the judicial tinkering being contemplated appears to be in derogation of the statute's express provisions. Any unfairness arising from the peculiar circumstances now before us must be remedied by the General Assembly, not by this Court. See Commonwealth ex rel. Fox v. Swing , 409 Pa. 241, 186 A.2d 24, 27 (1962) ("It is not for us to legislate or by interpretation to add to legislation matters which the legislature saw fit not to include.").
Nor should we feel compelled to perpetuate (much less extend) a questionable precedent merely by virtue of its purported "central[ity] to our election jurisprudence for more than half a century." OFJC at 1090. "[T]he doctrine of stare decisis was never intended to be used as a principle to perpetuate erroneous rules of law." In re Paulmier , 594 Pa. 433, 937 A.2d 364, 371 (2007). Packrall was wrong when it was decided in 1963, and it is wrong today. It staggers fitfully forward, cited inconsistently but often uncritically. And so the flawed precedent creeps on. Today's decision likely will encourage candidates like Petitioner to "play fast and loose with our election processes and make a mockery of them," In re Mayor of Altoona , 413 Pa. 305, 196 A.2d 371, 376 (1964) (Cohen, J., dissenting), by sanctioning the electoral gamesmanship that the framers of our Election Code sought to avoid. I respectfully dissent.