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Posted by on Aug 23, 2017 in Elections | 0 comments

Green Party v. Department of State Bureau of Commission, Elections and Legislation: A long name for a nothing-burger

The Supreme Court of Pennsylvania rules that filing late for a special election cannot be excused.

25 P.S. § 2779 requires that a political party putting forth a candidate for a special election must file its “Certificate of Nomination,” “not later than fifty (50) days prior to the date of the special election.”

The Green Party filed its Certificate of Nomination on January 31, 2017, one day late for the March 2017 special election in Philadelphia County (home to more than a few election disputes). The deadline for the submission of its nomination form is in the statute, which states that the deadline is 50 days prior to election day. In addition to this statutory notice, the Green Party was informed by mail and email of the deadline, but still missed it.

The Green Party’s excuses are less than stellar. The official responsible for submitting the nomination certificate wasn’t in the habit of checking the party email (that was someone else’s job), and she only checked the PO Box once a week (and missed the mailing). She called the day of the deadline and spoke to someone on the phone about their campaign finance report, and asked a general, “Anything else we should be doing” question, which naturally was misunderstood by the campaign finance person on the phone.

The Green Party went to the courts for relief, starting in the Commonwealth Court (election disputes being one of the few matters over which the Commonwealth Court enjoys original jurisdiction), and requesting a writ of mandamus against the Department of State. The Commonwealth Court denied the relief, and the Green Party appealed to the Supreme Court of Pennsylvania.

Majority by Mundy: There’s really nothing we can do here

Justice Mundy, speaking for the 5-2 majority, holds that there’s nothing the courts can do here. For one thing, the General Assembly, though bound itself by certain restrictions on what it can legislate regarding elections, is given plenty of room to set the rules by which elections are done. Absent a clear abuse of discretion, or an unreasonable interpretation by an executive official, the acts of the General Assembly should generally be left undisturbed.

Without meaning to sound disrespectful, the majority opinion seems to almost stutter, casting about for an argument from the Appellants as to why they should be excused in their late filing. “Essentially, Appellants seek to have this Court exercise its equitable powers to excuse their late filing of the nomination certificate,” Mundy writes. And then the damn breaks:

Appellants failed to consult the relevant statutes, did not check the Department’s website, did not read the e-mail and attachments sent to the Green Party, and did not check the Green Party’s post office box in a timely manner. Furthermore, rather than seeking critical information about the filing of a nomination certificate from someone in the elections division, [Green Party officials] chose to consult with someone in the campaign finance division.

Because the Green Party failed to demonstrate a clear right to relief, their application for writ of mandamus was denied.

A few other notes on the majority opinion: the Green Party argued it had First Amendment rights that had been trampled by the Department of State declining to put them on the ballot. This argument was rejected. Furthermore, the Green Party advanced some sort of explanation where the deadline was actually January 31, and that they filed on time. This lead us to the concurring and dissenting opinions.

Concurrence by Todd: I count it differently, but end up at the same result

The majority counts the day of the election as day one, but excludes the final day landed on (as the statute’s “day-counting” rules seems to require). Justice Todd insists that the day before the election is day one, as the statute itself seems to require. No matter, both calculations end up at the same result. (I know this sounds impossible, and while I went into law to avoid math, I have double-checked and they do both end up at the same result). Regardless, Justice Todd agrees with where the counting ends up, and the Green Party was late.

Dissent by Donohue: Count should expand rather than contract number of days to timely file

But Justice Donohue begs to differ, and argues that the day of the election should be day 1, and that the final day must be included for the final count, which leads to a deadline of January 31, and makes the Green Party’s application timely. She calls this a “common sense” reading of the statute, although Justice Todd retorts that there’s nothing common sense about calling the day of the election the first day prior to the day of the election. Justice Donohue argues that, where there is ambiguity, the tie should go to the democratic process, allowing parties and citizens to more fully participate in the process.

Conclusion: A late filing is not excused just because it’s an election

The basic conclusion of this case is that you should file on time if you’re a political party seeking to nominate a candidate for an upcoming election. The Green Party’s arguments feel undeveloped, or at least, the Court never got a grasp of what they were arguing if they did make developed arguments. It’s obviously a tough situation to see a candidate who was properly nominated by a political party denied the chance to be on the ballot, but deadlines are deadlines. The Supreme Court’s ruling in this case comports with its overall views expressed in Sprague v. Cortes, where the Court held that the legislature and executive should be allowed to handle elections as they see fit without the intervention of courts. In Pennsylvania, the policy of the courts is one of non-interventionism when it comes to election.


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