COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE March 2, All County Contact Persons For Elections

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1 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE March 2, 2015 SUBJECT: TO: FROM: Nomination Papers All County Contact Persons For Elections Jonathan Marks, Commissioner Bureau of Commissions, Elections and Legislation As a courtesy to you, we are again forwarding the nomination paper forms, which you may reproduce and use for minor political party and political body ballot access this year. FORMS Minor political party candidates and political body candidates file nomination papers to access the ballot for the November election. Enclosed please find a minor political party nomination paper, form DSBE 210-C MPP and political body nomination paper form DSBE 210-C PB. that the Secretary has prepared for the use of the county boards of elections. The AFFIDAVIT OF QUALIFIED ELECTOR (Section E) on the nomination papers has been revised to remove the in-state residency requirement for the circulator of a nomination paper. Instead, language has been added to require the circulator of a nomination paper to submit to jurisdiction in Pennsylvania regarding any case or controversy arising out of the circulator s activities while circulating nomination papers. This revision is the outcome of a recent preliminary injunction entered against the Secretary of the Commonwealth and the Commissioner of Elections in Green Party, et al. v. Aichele, et al., No. 2:14-cv (E.D. Pa. 2014). The Secretary of the Commonwealth and the Commissioner of Elections have been enjoined from enforcing the requirement in section 951(d) of the Election Code, 25 P.S. 2911(d), that a circulator of a nomination paper supporting the nomination of the candidates of a minor political party or a political body be a qualified elector of the Commonwealth. 1 Please discuss and make your solicitor aware of this revision. Each candidate for public office must also file a Candidate s Affidavit. The Minor Political Party Candidate s Affidavit (Form DSBE-MPPCA) is the form to be used with nomination paper DSBE 210-C MPP, and the Political Body Candidate s Affidavit (Form DSBE-PBCA) is the form to be used with nomination paper DSBE 210-C PB. Included, for your information, are the Instructions for Filing Nomination Papers that are similar to those used for candidates who file nomination papers with the Secretary of the 1 The requirement section 951(d) of the Election Code, 25 P.S. 2911(d), that a circulator of a nomination paper be a registered elector in the relevant political district, was previously ruled to be unconstitutional by a federal court and its enforcement permanently enjoined. See Morrill v. Weaver, 224 F. Supp. 2d 882 (E.D. Pa. 2002).

2 Nomination Papers Page 2 3/11/2015 Commonwealth. To make it easier for you to use these instructions without making multiple changes to them, we have removed from these versions of the instructions the information that is applicable only to candidates who file nomination papers with the Secretary of the Commonwealth. Please feel free to add any pertinent information that may be helpful to those candidates who file nomination papers with your office. Please also note that the Secretary issues separate instructions for candidates of minor political parties and candidates of political bodies. It is the opinion of the Department of State that a qualified minor political party, as provided in its party rules, can file an Authorization of Candidacy with the Secretary of the Commonwealth or the County Board of Elections, as the case may be, to prohibit an unauthorized person from filing nomination papers for the minor political party. The minor political party s rules must provide for such authorization in order for the party to utilize this procedure. The Authorization form must list candidates by office that have been authorized by the party to file nomination papers with the Secretary of the Commonwealth or the County Board of Elections for the November election. Please contact your solicitor if a minor political party requests to file an Authorization of Candidacy with your office. The nomination papers and Candidate s Affidavits referred to above may be reproduced by conventional offset, Xerox or similar process. All materials (including two-sided copies) must be duplicated exactly as they have been delivered to you. In other words, two-sided forms must be duplicated as two-sided forms, not single sheets stapled together. These documents are very similar; therefore, you may wish to color code the forms, copying the minor political party forms in one color and the political body forms in a different color. You may modify the Instructions For Filing Nomination Papers as necessary to suit the information needs of candidates filing nomination papers in your county. CROSS-FILING Sections 909(a) and 910(f) of the Pennsylvania Election Code (Code), 25 P. S. 2869(a) and 2870(f), provide that candidates for the following offices may file nomination petitions or crossfile for all political parties participating in a primary election (i.e., the Republican Party and the Democratic Party). These offices are: judge of a court of common pleas; judge of the Philadelphia Municipal Court; judge of the Traffic Court of Philadelphia; school director in a district where that office is elective; or for the office of justice of the peace (Magisterial District Judge). Based on relevant case law, it is the opinion of this office that a candidate who submitted his or her name for nomination in a primary for one of the offices listed in the preceding paragraph and who was nominated by one or both political parties for such office is eligible to be nominated by a minor political party for the same office. See Reform Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party II), 174 F.3d 305 (3d Cir. 1999). However, a candidate who submitted his or her name for nomination in a primary and who was not nominated by at least one of the political parties is not eligible to be nominated by a minor political party for the same office. See In Re: Nomination Paper of Zulick, 832 A.2d 572 (Pa. Cmwlth.), aff d, 575 Pa. 140, 834 A.2d 1126 (2003).

3 Nomination Papers Page 3 3/11/2015 In Patriot Party II, decided in 1999, the United States Court of Appeals for the Third Circuit held that sections 951(e)(5) and 976(e) of the Pennsylvania Election Code, 25 P.S. 2911(e)(5) and 2936(e), which permit candidates to file nomination petitions to place their names on the primary ballots of both major political parties, but do not permit minor political parties to file nomination papers to nominate the same candidates for the same offices, is discriminatory and unfairly burdens the interests of minor political parties in violation of the Equal Protection Clause of the 14 th Amendment to the U.S. Constitution. However, in Zulick, decided four years later, the Commonwealth Court of Pennsylvania (affirmed summarily by the Supreme Court of Pennsylvania) held that the opinion of the U.S. Court of Appeals in Patriot Party II is not binding on the Commonwealth s courts. Moreover, the Commonwealth Court held, Patriot Party II does not entitle minor political parties to nominate candidates who ran as a named candidate in the primary and won the nomination of neither political party. In its analysis, the Commonwealth Court concluded that the factual circumstances presented in Patriot Party II are different from those presented in Zulick because in Patriot Party II, the plaintiff candidates who sought to be candidates of a minor political party had won in the primary the nomination of at least one political party. By contrast, the candidate in Zulick in the primary had lost the nomination of both the Democratic and Republican Parties. Thus, unlike the plaintiff candidates who sought minor party nominations on Patriot Party II, the candidate in Zulick was a pure poor loser, having sought nomination in the primary and won nothing. Based on this distinction, the Commonwealth Court held that as provided by the Election Code, a minor political party cannot nominate a candidate who submitted his or her name for nomination in the primary and was not nominated by either political party in the primary. As you know, an opinion of the Commonwealth Court is binding on the Secretary of the Commonwealth and the courts of common pleas. Thus, the common pleas courts in your county are obliged to enforce and apply the law as dictated by Commonwealth Court in Zulick. However, given that the U.S. District Courts in Pennsylvania are not bound by Zulick but by Patriot Party II, your solicitor might decide to interpret the relevant case law differently than we have, or to advise your board of elections differently than attorneys for the Department of State have advised the Secretary of the Commonwealth. Therefore, it is important that you consult with your solicitor before determining whether the board of elections will follow the Secretary s interpretation of the relevant case law as it applies to sections 909(a) and 910(f) of the Pennsylvania Election Code, 25 P. S. 2869(a) and 2870(f). DEADLINE Under section 953(b) of the Code, 25 P.S. 2913(b), the first day to circulate and file nomination papers to access the November election ballot is the 10 th Wednesday before the Municipal Primary Election, which is March 11, As prescribed by the Election Code, the circulation and filing of nomination papers ends on the second Friday subsequent to the primary election. However, the Secretary of the Commonwealth in 1984 entered into a consent decree in U.S. District Court under which he is obliged to accept nomination papers until August 1. This consent decree, based on principles of the First and Fourteenth Amendments to the U.S. Constitution, remains in effect for candidates who file nomination papers with the Secretary of the Commonwealth. The Department of State recommends that the county boards of

4 Nomination Papers Page 4 3/11/2015 elections adhere to the August 1 deadline, but urges you to seek the advice of your solicitor regarding this issue. SIGNATURE REQUIREMENT Under section 951 of the Code, 25 P.S. 2911, the minimum number of signatures required on nomination papers for candidates nominated for any office elected by district is at least two percent of the largest vote cast for any officer (except a judge of a court of record), elected at the last preceding election in the electoral district for which nomination papers are to be filed, and shall not be less than the number of signers required for nomination petitions for party candidates for the same office. When a new district is created, the number of signatures required on nomination papers for candidates to be elected at the first election held after the creation of the new district is at least two percent of the largest vote cast in the election districts that are included in the newly created district for any office elected at the last preceding election, but shall not be less than the number of signers required for nomination petitions for party candidates for the same office. Consistent with the Supreme Court s decision in In re Robertson, 55 A. 3d 1044 (Pa. 2012), signatures should not longer be stricken for the omission of the year where the current year is printed on the form, written in the preamble, contained in the affidavit that bears the notary seal, or is otherwise interspersed among other signatures. The Department of State urges you to share this information with your solicitor and to seek the advice of your solicitor regarding the process of the county board of elections for reviewing and accepting nomination papers. FILING FEES Filing fees for nomination papers are the same as filing fees required for nomination petitions for the same office. Please keep in mind that Act No removed the $5.00 filing fee for any borough, town or township office, irrespective of whether such office is a compensated elective office. Therefore, candidates for any borough, town or township office are not required to pay a $5.00 fee when they file nomination papers. Please note that Act did not affect the filing fee for the office of constable. Therefore, the $10.00 filing requirement for the office of constable remains in effect. STATEMENT OF FINANCIAL INTERESTS Please contact the State Ethics Commission, 309 Finance Building, PO Box 11470, Harrisburg, PA , (800) , for information concerning the requirements to file the Statement of Financial Interests. If you receive any requests for nomination papers from candidates who must file their nomination papers with the Secretary of the Commonwealth, please refer such requests to this office. If you have any questions regarding the ballot access requirements for candidates of minor political parties or political bodies, please feel free to contact Jessica Mathis or Adam Yake, of my staff, at (717) , Option 5.

5 Nomination Papers Page 5 3/11/2015 Enclosures

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