In Re: Nom Papers of E Scroggin Appeal of Stefano ( 2020 )

[J-98-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: NOMINATION PAPER OF : No. 55 MAP 2020
ELIZABETH FAYE SCROGGIN (OR IN :
THE ALTERNATIVE, HOWIE HAWKINS), : Appeal from the Order of the
NEAL TAYLOR GALE (OR IN THE : Commonwealth Court at No. 460 MD
ALTERNATIVE, ANGELA WALKER), : 2020 dated September 9, 2020.
TIMOTHY RUNKLE, OLIVIA FAISON, AND :
RICHARD L. WEISS IN THE GENERAL : SUBMITTED: September 15, 2020
ELECTION OF NOVEMBER 3, 2020 :
:
:
APPEAL OF: PAUL STEFANO AND TONY :
C. THOMAS :
OPINION
JUSTICE WECHT DECIDED: September 17, 2020
This case concerns provisions of the Election Code1 governing the nomination of
candidates by political bodies and the procedures to effectuate the substitution of
candidates so nominated. Ancillary to this appeal, Pennsylvania electors Paul Stefano
and Tony C. Thomas (“Objectors”) sought a short term stay directing the Secretary of the
Commonwealth to withhold certification of the general election ballot pending this appeal,
which we granted on September 14, 2020. For the reasons that follow, we affirm the
Commonwealth Court’s order in part, to the extent that it directs the Secretary to remove
Angela Walker as the Green Party’s nominee for Vice President, and reverse the order
insofar as it directs the placement of Howie Hawkins on the ballot as the party’s nominee
1 Act of June 3, 1937, P.L. 1333, 25 P.S. §§ 2600-3591.
for President. Because the procedures for nominating a candidate for office by
nomination papers were not strictly followed here, subsequent efforts to substitute
Hawkins were a nullity. Accordingly, the Secretary is directed to remove both candidates’
names from the general election ballot.
I. Factual & Procedural History
A.
Between March and August 2, 2020, the Green Party of Pennsylvania (“Green
Party”) circulated signature pages for a nomination paper pertaining to the following slate
of five candidates for federal and state office: Elizabeth Faye Scroggin for President of
the United States; Neal Taylor Gale for Vice President of the United States; Timothy
Runkle for Treasurer of Pennsylvania; Olivia Faison for Auditor General of Pennsylvania;
and Richard L. Weiss for Attorney General of Pennsylvania. On August 3, the deadline
for filing nomination papers, Runkle presented the underlying nomination paper, which
consisted of 710 pages containing more than 8,500 signatures, for filing in person in the
Office of the Secretary of the Commonwealth in Harrisburg. Notes of Testimony (“N.T.”),
9/7/2020, at 27-28.
Relevant to this appeal, Runkle appended to the nomination paper notarized
candidate affidavits for himself, Faison, and Weiss, but he did not submit affidavits for
Scroggin or Gale. Id. at 28. Instead, Runkle’s submission included a notarized candidate
affidavit for Howie Hawkins and a non-notarized affidavit for Angela Walker
(“Candidates”), who were nominated as the Green Party’s candidates for President and
Vice President, respectively, at the national Green Party Convention on July 11, 2020.
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On August 10, the deadline for withdrawals and substitutions of candidates, the
Green Party filed with the Secretary two Substitute Nomination Certificates, seeking to
replace Scroggin and Gale with Hawkins and Walker. The certificates, which were signed
and notarized on August 6 (for Hawkins) and 7 (for Walker), indicated that the cause of
each vacancy was “[r]esignation,” and that the substitutions of Hawkins and Walker were
made by the Green Party on August 2, the day before Runkle presented the nomination
paper in the filing office designated by the Department. Petitioner’s Exhibit P-5
(Substitute Nomination Certificate, filed 8/10/2020); N.T., 9/7/2020, at 49-50.
Following the submission of the substitution forms, Objectors filed in the
Commonwealth Court a petition to set aside the Green Party candidates’ nomination
paper as to the entire slate as well as to the purported substitutions and candidacies of
Hawkins and Walker. In addition to global and individual signature challenges not
relevant here, Objectors sought to have the Green Party slate removed from the general
election ballot based upon the presidential and vice presidential candidates’ alleged
failure to comply with the requirements of the Election Code pertaining to candidate
affidavits and substitutions. Objectors subsequently filed an application for summary
relief pursuant to Pa.R.A.P. 1532 on August 24, seeking to strike the nominations of the
five original candidates and the two substitutes.
On August 25, counsel for the Green Party emailed Jessica Mathis, Director of the
Bureau of Elections and Notaries, to ask whether she had received a copy of Scroggin’s
candidate affidavit that apparently had been sent to a fax number at the Department
roughly thirty minutes before the 5:00 p.m. filing deadline on August 3. Mathis responded
to Candidates’ counsel by affirming that, following a search on August 25 of an e-mail
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account associated with the number generally used by the Department to receive faxed
transmissions, a facsimile of Scroggin’s affidavit had been located. N.T., 9/7/2020, at 58-
59; Petitioners’ Exhibit P-9. However, no affidavit was submitted, in person or by fax, on
behalf of Gale. Thereafter, the parties submitted a joint stipulation acknowledging the
foregoing version of events and agreeing that, aside from the affidavits for Hawkins,
Walker, Runkle, Faison, and Weiss, “[n]o other candidate affidavits were appended to the
Nomination Paper.” Joint Stipulation of the Parties, 9/3/2020, ¶3. Objectors withdrew
their remaining objections as to Runkle, Faison, and Weiss, and their names were
directed to be placed on the ballot. Order, 9/3/2020 (Crompton, J.).
Objectors’ challenges to the substitutions of Hawkins and Walker proceeded to an
evidentiary hearing on September 7 before the Honorable J. Andrew Crompton. Mathis
testified that she personally reviewed the nomination paper presented by Runkle on
August 3. N.T., 9/7/2020, at 26. She described the process for conducting a preliminary
review of the “four corners of the Nomination Paper” presented for filing, which includes
both confirming that the nomination paper contains a facially sufficient number of
signatures as well as an original, notarized candidate affidavit. Id. at 23-24. Mathis also
indicated that she informed Runkle that he was required to file an affidavit on behalf of
Scroggin and Gale because they were the candidates named in the nomination paper
and therefore objections might be filed on that basis. Id. at 33.
Although Mathis acknowledged that the Election Code requires that a notarized
candidate affidavit be submitted before nomination papers can be accepted for filing, she
noted that, following a conversation with her supervisor, Deputy Secretary of the
Commonwealth Jonathan Marks, “[i]t was decided that we were going to ask [the Green
[J-98-2020] - 4
Party] to file the affidavit, but we were not going to reject solely based on not receiving
the affidavit of the placeholder candidates.” Id. at 34, 36, 68-69. Mathis indicated that
the Department began accepting some “unsworn statements” from presidential electors
“just recently with Covid.” Id. at 44. Given that forbearance for electors, Mathis added
that the Department, in its discretion, chose not to require that affidavits be presented for
political-body candidates at the time of filing because the Election Code did not “requir[e]
it of the major parties.” Id. at 81.2
When asked if it is common practice for candidates to fax documents to the
Department, Mathis explained that she does not “typically . . . check the fax resource [e-
mail] account” because it generally is used only if someone had been asked to fax
something, which was not the case here. Id. at 59. Because no one from the Green
Party had followed up regarding the fax, which was sent without a cover letter, no one at
the Department was aware that it had been received until counsel’s inquiry three weeks
later. Id. Finally, Mathis averred that, as of the September 7 hearing, no original
candidate affidavits had been filed on behalf of Scroggin or Gale. Id. at 60.
B.
On September 9, Judge Crompton issued his memorandum opinion and order.
The court began by explaining that “a prerequisite for substitution is [the] proper
2 Significantly, Mathis initially testified that neither Scroggin nor Gale had sought to
formally withdraw their nominations by filing a sworn Withdrawal Notice before Candidate
Substitution Forms were accepted for filing on behalf of Hawkins and Walker. N.T.,
9/7/2020, at 55-57. On cross-examination, however, she corrected her earlier testimony
and acknowledged that withdrawal forms had been received for both candidates on
August 10, but did not indicate whether those forms constituted original, notarized
versions that were presented for filing in the office, or if they, too, were delivered via fax
or email. Id. at 71-72, 77-78.
[J-98-2020] - 5
nomination of a candidate by nominations, and the subsequent withdrawal of the
candidate.” Slip Op. at 6 (citing 25 P.S. § 2940; In re Barr, 956 A.2d 1083, 1087 (Pa.
Cmwlth. 2008), aff’d 958 A.2d 1045 (Pa. 2008)). In order to be duly nominated, the
Election Code requires that a political body candidate file an affidavit of candidacy with
the Commonwealth. 25 P.S. § 2911(e)(5). A separate affidavit must be submitted for
each candidate for office. Id.
With these procedural mandates in mind, the court agreed with Objectors that
Walker’s substitution was a nullity because no affidavit of candidacy had been filed on
behalf of Gale, the Green Party’s “placeholder” vice presidential candidate. Slip Op. at 6
(citing In re Nomination Petition of Driscoll, 847 A.2d 44, 50 (Pa. 2004); Petition of Kloiber,
362 A.2d 484 (Pa. Cmwlth. 1976)). The absence of Gale’s affidavit was fatal to his
nomination, thereby depriving Walker of the opportunity to invoke the substitution
mechanism under Section 980 of the Election Code, 25 P.S. § 2940.3
However, the court disagreed with the Objectors’ assertion that Scroggin’s
facsimile affidavit was insufficient to satisfy the affidavit requirement, relying principally
upon Kloiber. There, the Bureau of Elections rejected a candidate’s nomination petition,
filed on the last day for doing so, when an examination of the same demonstrated that,
although signed by a notary, the affidavits of both the circulator and the candidate
submitted with the petition lacked the notary’s seal. Kloiber, 362 A.2d at 485. “In all other
respects, the petition was in good order.” Id. The rejected petition was returned to the
3 Moreover, the court observed that the affidavit submitted on Walker’s behalf was
not notarized or dated, therefore it did “not meet the basic criteria for an ‘affidavit,’ which
include being sworn before a notary. As such, her submission does not meet the
Candidate Affidavit requirement for the office of Vice-President even under a generous
construction of the statute.” Slip Op. at 7 n.6.
[J-98-2020] - 6
candidate by mail four days later, a Saturday, but was not personally received by him until
the following Monday when he returned from a trip. The candidate promptly went back
to the notary, who affixed his seal on the nomination petition, and delivered the document
to the Bureau. Yet the Bureau refused to accept the petition because it was by then
untimely. Id. In resolving the case in favor of the candidate, the Commonwealth Court
reasoned that, although nomination petitions lacking affidavits are fatally defective,
“nomination petitions with improperly completed affidavits are amendable at the discretion
of the [c]ourt.” Id. at 486. Because the candidate acted in good faith and with due
diligence in obtaining the notary’s seal, the court permitted him to amend his petition nunc
pro tunc, so as not to deprive him of the right to run for office based on a “technical
oversight.” Id.
Before discussing the validity of Scroggin’s affidavit, the court found that the
facsimile “was timely received by” the Department of State (“the Department”) because it
was transmitted before the 5:00 p.m. deadline on August 3, albeit by fax. Slip Op. at 7.
The court also deemed relevant the fact that the Department accepted the nomination
paper for filing because, by virtue of Hawkins’ and Walker’s affidavits as substituted
candidates, the filing contained sworn affidavits for each of the offices, notwithstanding
the absence of affidavits for the two individuals named therein as the Green Party’s
candidates for President and Vice President (Scroggin and Gale). Slip Op. at 4.
Turning to the three grounds proffered for rejection, the court initially was
unpersuaded that the lack of an original signature on Scroggin’s affidavit was grounds for
its invalidation, reasoning that “[t]he point of an original or ‘wet’ signature is to ensure
against fraud and to utilize for signature comparisons when assessing whether it is an
[J-98-2020] - 7
accurate signature as in a line challenge.” Id. at 8. “In light of the indicia of reliability
supplied by the notarization of her signature,” Judge Crompton determined that
“invalidating Scroggin’s affidavit based on the lack of [an] original signature [would have]
elevated form above substance.” Id. Relatedly, the court considered the affidavit’s
“method of submission” by fax “not [to be] critical to compliance with the Candidate
Affidavit requirement.” Id. The court reasoned that “faxing was not precluded by the
[Department’s] Instructions,” and that “electronic submission was expressly permitted
based on the reduced staff and limitations resulting from Covid-19.” Id.
Finally, the court determined that Scroggin was not required to “append” her
affidavit to the nomination petition, notwithstanding the plain language of 25 P.S.
§ 2911(e), because the Department’s “Instructions for Political Bodies do not contain the
word ‘appended’ and there is no indication that [the Department] requires attachment of
the Candidate Affidavits.” Id. at 9. The court considered the fact that Department “staff
did not advise the Green Party that there was any defect in” its submission to be a
“compelling circumstance” because neither Scroggin nor Hawkins “had notice or
opportunity to challenge the alleged defect in Scroggin’s Affidavit in content or its
submission.” Id. at 9-10. In Judge Crompton’s view, “Scroggin’s Affidavit strongly evinces
substantial compliance with the” Election Code’s requirements because it was “signed, []
sworn, dated and notarized by a commissioned notary.” Id. at 10. Under these
circumstances, the court concluded that Scroggin’s affidavit was satisfactory. Id. at 10-
[J-98-2020] - 8
11. Accordingly, the court denied Objectors’ petition as to the exclusion of Scroggin and
Hawkins.4
II. Parties’ Arguments
A. Objectors’ Brief
Objectors present three issues: (1) Whether the lower court erred in finding that
Scroggin was the Green Party’s duly nominated presidential candidate where she failed
to append her affidavit to her nomination paper, a fact to which the parties’ have
stipulated; (2) Whether the court erred in permitting Hawkins’ substitution, which
Objectors’ assert was a nullity as a consequence of Scroggin’s deficient submission; and
(3) Whether the court erred in concluding that Objectors had no recourse to challenge
either candidate’s status as a result of the Department’s misapplication of the express
provisions of the Election Code by accepting Scroggin’s nomination paper for filing
despite the absence of a valid affidavit. Objectors’ Brief at 2.
Objectors assert that the Election Code requires that the nomination papers of a
political body must include “an affidavit of each candidate nominated therein,” 25 P.S.
§ 2911(e), in which the candidate avers, inter alia, that his or her “name has not been
presented as a candidate by nomination petitions for any public office to be voted for at
4 The court also rejected Objectors’ alternative claim that the Twelfth Amendment to
the United States Constitution required Hawkins’ removal from the ballot because his
running mate properly was excluded. Slip Op. at 12-13. Finding no basis for that
proposition in the text or history of the amendment, the court reasoned that the existence
of a defect “as to one candidate on a political body slate does not impair the candidacy of
the other candidates for other offices.” Id. at 13 (citing Swartz v. Helm, 41 Pa. D. & C. 2d
322, 334 (Dauph. Cty. C.C.P. 1966)). The court determined that this construction was
“consistent with the plain language of the Election Code which provides ‘each’ duly-
nominated candidate stands on his or her own merit, based on the eligibility and
documentation criteria.” Id. (emphasis in original).
[J-98-2020] - 9
the ensuing primary election,” id. Citing this Court’s decision in Petition of Cianfrani, 359
A.2d 383, 384 (Pa. 1976), they contend that Scroggin’s failure to affix her affidavit to the
nomination paper was a “fatal defect” that voids and invalidates her filing. Objectors’ Brief
at 19-20 (quoting In re Owens, 436 A.2d 260, 261 (Pa. Cmwlth. 1981) (“[T]he Election
Code makes no exceptions to the requirement for the filing of the affidavit.”)).
Objectors additionally cite In re Steel, 105 A.2d 139 (Pa. 1954), for the proposition
that the Code’s use of the word “shall” in the various provisions governing the submission
of nomination papers and affidavits is mandatory. There, a candidate claimed that he
was not required to bind the pages of his nomination petition together, despite the express
language of the Code requiring as much. In rejecting his argument, we said:
In In re Nomination Papers of American Labor Party, 44 A.2d 48 (Pa. 1945)
. . . we held that the requirement in Section 977 of the Election Code, 25
P.S. § 2937, with respect to serving a copy of objections to nomination
petitions within the seven-day period allowed for the filing of objections in
court was mandatory and not directory. Tested by the standards there
applied, the ‘shall’ in the cited provision of Section 909 is no less mandatory.
To hold otherwise would be to thwart the evident intent and purpose of the
provision and to introduce confusion, if nothing worse, in connection with
the filing of nomination petitions.
Steel, 105 A.2d at 141 (cleaned up); see also Petition of Stout, 219 A.2d 349 (Pa. 1966)
(per curiam) (quashing appeal from denial of mandamus where Bureau of Elections
refused to accept supplemental filings of judicial candidate whose original filing contained
an insufficient number of valid signatures). Based upon these precedents, Objectors
submit that the consequence for failing to adhere to the mandatory provisions of the
Election Code governing the filing of nomination papers necessarily is the rejection of the
filing.
Here, Objectors highlight the fact that the only affidavit that was appended to the
Green Party’s nomination paper for the presidential race was Hawkins’. Thus, they
[J-98-2020] - 10
assert, “interpreting Ms. Scroggin’s faxed affidavit as having been properly ‘appended’
would lead to the absurd conclusion that the [Green Party] was seeking to nominate two
candidates for President.” Objectors’ Brief at 23. They argue that Scroggin’s conduct
was even more irregular than that in Steel and Stout because she faxed a copy of her
affidavit, sans cover letter or any other explanatory material, to a general fax number
without notifying the Department or following up to ensure that it was obtained. This
“casual approach” neither literally nor legally meets the requirement that one “append” an
affidavit to the nomination paper, in their view. Id. at 24. Permitting the haphazard
submission of necessary paperwork in this piecemeal manner, Objectors posit, “would
not only create immense uncertainty and confusion within the Department, but it would
also preclude potential objectors from making appropriate challenges” within seven-day
period for doing so, another provision that this Court strictly has enforced. Id. at 25 (citing
In re Wagner, 511 A.2d 754, 756 (Pa. 1986)).
Furthermore, in Objectors’ view, the Department’s discovery of a facsimile three
weeks after the filing deadline did not render the affidavit “filed” in accordance with 25
P.S. §§ 2913 and 2937. They observe that those provisions align with Pennsylvania Rule
of Civil Procedure 205.3, the official note to which provides expressly that “[t]his rule does
not authorize the filing of legal papers with the prothonotary by facsimile transmission.”
See also In re Estate of Karschner, 919 A.2d 252, 255 (Pa. Super. 2007) (holding that
“facsimile transmission of legal papers is not valid”). “The need for an original, physical
copy is especially apparent here, where the signature on Ms. Scroggin’s purported
affidavit misspells her surname.[5] If an original is not filed, there is no opportunity for
5 We observe that Scroggin’s name was merely truncated.
[J-98-2020] - 11
objectors to examine the filed document for its authenticity.” Objectors’ Brief at 28 (citing
Petitioners’ Exhibit P-9).
Moreover, even if Scroggin had complied with the basic requirements of appending
and filing an original affidavit, the Objectors contend that the facsimile itself is false and
invalid. The purported affidavit suggests that, on August 3, 2020, Scroggin swore that
she “desire[s] to be a candidate” for President of the United States. At that point in time,
however, Hawkins already had been nominated ten days earlier. Thus, Objectors claim,
as of the filing deadline, all evidence demonstrated that Scroggin no longer was a
candidate for President, despite her assertion to the contrary. Id.
Objectors further assert that Scroggin and Gale’s failure to file candidate affidavits
cannot be rectified by the later substitution of other candidates because the Election Code
permits substitutions “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.” Id. at 29 (quoting Watson v. Witkin, 22 A.2d 17, 21 (Pa. 1941)). In
order to effectuate a valid substitution, both the original and substituted candidates must
“fully compl[y] with the rigors of the Election Code in effectuating the withdrawal and
substitution at issue.” Id. (quoting Barr, 956 A.2d at 1088). This Court has clarified,
Objectors submit, that when considering whether the substitution of a candidate is
permitted, there is a “significant distinction between a candidate who withdraws his name
from nomination, and a candidate whose name is stricken from the ballot.” Id. at 30
(quoting Pa. Democratic Party v. Pa. Dep’t of State, 159 A.3d 72, 77 n.5 (Pa. Cmwlth.
2017)). In light of the placeholder candidates’ failure to submit conforming affidavits,
Objectors contend that they could not have been considered “duly nominated.” Moreover,
[J-98-2020] - 12
because Hawkins and Walker were not named in the nomination paper, any attempt to
cure the placeholders’ deficient filings by submitting alternative affidavits was without
effect. The Election Code requires that candidate affidavits be appended to the
nomination paper “of each candidate nominated therein.” 25 P.S. § 2911(e) (emphasis
added). Accordingly, any attempted substitution was impossible. Objectors Brief at 30-
31.
Objectors also assert that the lower court’s decision to credit as a “compelling
circumstance” the Department’s acceptance of the nomination paper without providing
express and immediate notice of apparent defects was erroneous. By its plain language,
the Election Code provides that “[a]ll nomination petitions and papers received and filed
within the period limited by this act shall be deemed to be valid, unless . . . a petition is
presented to the court specifically setting forth the objections thereto, and praying
that the said petition or paper be set aside.” Id. at 33 (quoting 25 P.S. § 2937
(emphasis added)). Once an objection is made, a nomination petition or paper “shall be
set aside” if the court finds that it “is defective under the provisions of section 976.” Id.
The Department’s acceptance of a nomination paper is not the end of the inquiry into its
validity, but merely the beginning. The Code establishes the process by which the public
may examine and object to nomination papers that were accepted by the Department
notwithstanding their defects. If the Department’s acceptance of a filing was the final
word on its validity, then the entire objection process would be superfluous. Neither the
Code nor decades of precedent interpreting it contemplates this result. Id. at 33-34.
Finally, subject to constitutional exceptions, Objectors maintain that the judiciary
cannot disregard the clear, substantive requirements of the Election Code through resort
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to equitable principles. Id. at 34 (citing In re Guzzardi, 99 A.3d 381 (Pa. 2014) (reversing
the Commonwealth Court’s rejection, on equitable grounds, of a petition to set aside a
candidate’s nomination petition based upon the candidate’s failure to file a statement of
financial interests). Although the General Assembly could have permitted candidates to
fax copies of affidavits to the Department for filing, Objectors note that they did not,
requiring instead that an original affidavit be appended to the nomination paper.
“Moreover, it is of no moment that Department personnel might have miscommunicated
flawed filing instructions to the [Green Party’s] representatives. This Court has repeatedly
held that erroneous instructions and miscommunications from the Department or county
boards of elections do not nullify the express provisions of the Election Code.” Id. at 36
(citing Guzzardi, 99 A.3d at 388; In re Canvass of Absentee Ballots of Nov. 4, 2003
General Election, 843 A.2d 1223, 1225 (Pa. 2004) (“Appeal of Pierce”)). Because
Scroggin did not adhere to the Code’s mandates, Objectors conclude that she did not
perfect her nomination and thereby deprived the Green Party of a duly nominated
presidential candidate. For these reasons, Objectors ask that the party’s candidates be
removed from the ballot.
B. Candidates’ Brief
Candidates do not respond directly to the authority cited in Objectors’ brief. They
instead rely almost exclusively upon the findings and analysis of the Commonwealth
Court, and assert that those findings control. In response to Objectors’ complaint that
Scroggin’s affidavit “was not ‘appended’, in the usual sense,” to her nomination paper,
Candidates repeat the lower court’s suggestion that Objectors seek to “elevate form over
substance.” Although the Department did not discover the affidavit until August 25, 2020,
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they did timely receive it by the deadline for filing. That “bureaucratic snafu” did not
constitute “a fatal defect.” Candidates’ Brief at 8. Because the Commonwealth Court
accepted the facsimile as timely filed, Candidates submit that this Court would have to
find an abuse of discretion to overturn its decision. Id. at 12.
Moreover, Candidates reject Objectors’ argument that the date on Scroggin’s
affidavit renders it false, calling that argument “absurd on its face.” Id. at 8, 14. Because
Objectors offered no evidence of bad faith, fraud, or other disability, Candidates claim
that “[t]his is yet another example of their distraction and spaghetti on the wall litigation
tactics. It simply does not stick.” Id. at 8, 12-13. Further, Candidates submit that
Objectors’ reference to our Rules of Civil Procedure as barring the submission of an
affidavit by fax is inapt. Id. at 13-14 (citing In re Johnson, 502 A.2d 142, 145 (Pa. 1985)
(“We disagree with the notion that this Rule [Pa.R.C.P. 1024(a)] or any other Rule of Civil
Procedure is applicable to a challenge to a nomination petition or paper.”)).
Finally, Candidates contend that the objection process worked as intended:
Objectors had an opportunity to make their case, but failed to carry their burden. Id. at
14-15. Sidestepping Objectors’ invocation of Guzzardi as distinguishable based upon the
Commonwealth Court’s finding that Scroggin’s affidavit was timely filed by fax,
Candidates rest on the “longstanding and overriding policy in our Commonwealth to
protect the elective franchise.” Id. at 15 (quoting In re Nader, 858 A.2d 1167, 1177 (Pa.
2004)). “The Election Code must be liberally construed in order to protect a candidate’s
right to run for office, and a voters’ [sic] right to elect the candidate of their choice.” Id.
(quoting In re Nomination Petition of Flaherty, 770 A.2d 327, 331 (Pa. 2001)). Objectors’
appeal, they conclude, “is another distraction.” Id.
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 C. Objectors’ Reply
Objectors largely reiterate the arguments made in their principal brief. They
contend that the Commonwealth Court erred in concluding that Scroggin’s affidavit was
“filed” because, in reality, the unsolicited facsimile merely “sat in an unmonitored email
account—unprinted, undiscovered, and unacknowledged by Department staff”—“for
more than three weeks.” Objectors’ Reply Brief at 5 (emphasis in original). Objectors
emphasize that “the Department still has not received the original Scroggin affidavit” as
of the date their reply brief was filed. Id.
Additionally, Objectors assert that Candidates distort the record by suggesting that
the Department permitted candidates to email unsworn statements until midnight on
August 3. As evidence to the contrary, Objectors cite Bureau Director Jessica Mathis’
testimony that presidential electors were permitted to submit their statements by email.
That exception did not apply to candidates, Objectors claim, because the Department
required the submission of original affidavits. Id. at 6-7 (citing Notes of Testimony (“N.T.”),
9/7/2020, at 41, 44, 67). “Because Candidates’ arguments (and the trial court’s position)
are unsupported by both fact and law, they must be rejected.” Id.
Lastly, Objectors challenge the lower court’s reliance upon the apparent
“impracticability of appending Scroggin’s Affidavit under current circumstances, including
Covid-19.” Id. (quoting Slip Op. at 9). They assert that the court could not explain why
Scroggin was unable to do so in light of the fact that the Green Party managed to
overcome that same “impracticality” when it actually appended five original affidavits to
the nomination paper, including Hawkins’. In-person filing was not impractical, they note,
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pointing to the Green Party slate’s representative, Tim Runkle, who appeared in person
to present the nomination paper for filing.6
III. Analysis
This Court may reverse a Commonwealth Court order concerning the validity of
challenges to a nomination paper if the court’s findings of fact are not supported by
substantial evidence of record, if there was an abuse of discretion, or if there was an error
of law. Driscoll, 847 A.2d at 49. Because the Commonwealth Court erred as a matter of
law in accepting the submission of a facsimile purporting to be Elizabeth Scroggin’s
affidavit as sufficient to satisfy her filing obligations as the Green Party’s nominee for
President, the court’s order permitting the substitution of Howie Hawkins on the general
election ballot must be reversed.
The nomination process for political bodies is distinct from that of political parties.
Pursuant to Section 951 of the Election Code, political bodies uniquely may nominate
multiple candidates for various offices using a single nomination paper. 25 P.S. § 2911(c).
A nomination paper must specify, among other things, the name of the political body
represented by the candidate, “the name of each candidate nominated therein,” “the office
for which such candidate is nominated,” and the names and addresses of at least three
but no more than five individuals authorized to fill a vacancy caused by the death or
withdrawal of a candidate, should either occur. Id. § 2912. To secure a ballot line for
6 The county boards of elections of Philadelphia, Allegheny, Bucks, and Delaware
Counties filed a brief as amici curiae in support of neither party. In light of the federal
deadline for sending absentee ballots to military and overseas voters (September 18,
2020), they urge the Court to expedite our consideration of this appeal.
[J-98-2020] - 17
President and Vice President, a nomination paper must be signed by at least 5,000
qualified electors.7
The Election Code provides that “[t]here shall be appended to each nomination
paper offered for filing an affidavit of each candidate nominated therein, stating,” inter
alia,
(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;
. . . (5) that his name has not been presented as a candidate by nomination
petitions for any public office to be voted for at the ensuring primary election,
nor has he been nominated by any other nomination papers filed for any
such office; [and] (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 . . . .
Id. § 2911(e). The Code further directs that the nomination papers of candidates to be
voted on statewide “shall be filed with the Secretary of the Commonwealth.” Id. § 2913(a).
Pertinently, Section 976 of the Code specifies the procedures to be followed when
a nomination is presented for filing:
When any . . . nomination paper is presented in the office of the Secretary
of the Commonwealth . . . for filing within the period limited by this act, it
shall be the duty of the said officer . . . to examine the same. No . . .
nomination paper . . . shall be permitted to be filed if -- (a) it contains material
errors or defects apparent on the face thereof, or on the face of the
appended or accompanying affidavits; . . . or [(e)] if the candidate named
therein has filed a nomination petition for any public office for the ensuing
7 Although the Code expressly sets a threshold signature requirement for
nomination papers “at least equal to two per centum of the largest entire vote cast for any
election candidate in the State at large at the last preceding election at which State-wide
candidates were voted for,” 25 P.S. § 2911(b), that mandate was abrogated by a federal
consent decree. See Constitution Party of Pa. v. Cortes, No. 12-2726 (E.D. Pa. Feb. 1,
2018). Pursuant to that agreement, the Secretary has further stipulated that candidates
for statewide election nominated by the Constitution Party, the Green Party, or the
Libertarian Party need only submit 5,000 valid signatures to obtain access to the general
election ballot as candidates for president and vice president.
[J-98-2020] - 18
primary, or has been nominated for any such office by nomination papers
previously filed . . . .
Upon completion of any examination, if any nomination . . . paper is found
to be defective, it shall forthwith be rejected and returned to the candidate
or one of the candidates named therein, together with a statement of the
reasons for such rejection.
Id. § 2936. Once a candidate has been duly nominated by a political body, she “may
withdraw [her] name from nomination by request in writing, signed by [her] and
acknowledged before an officer qualified to take acknowledgement of deeds, and filed in
the office of the Secretary of the Commonwealth.” Id. § 2938(b). To be effective, “written
withdrawals shall be filed with the Secretary of the Commonwealth . . . at least eighty-five
(85) days previous to the day of the general or municipal election,” and “must be received
in the office of the Secretary of the Commonwealth not later than five (5) o’clock P.M. on
the last day for filing the same.” Id. Finally, the Code provides that a court reviewing
objections to nomination papers “shall finally determine said matter not later than fifteen
(15) days after the last day for filing said nomination petitions or paper.” Id. § 2937.
Objectors contend that Scroggin’s failure to append her sworn affidavit to the
slate’s nomination paper compels the invalidation of her nomination as the Green Party’s
candidate for president, thereby negating the efficacy of Hawkins’ substitution. They
assert that the lower court erred in concurring with the candidates’ rejoinder that the
Election Code’s express mandate that an affidavit “shall be appended to each nomination
paper offered,” id. § 2911(e), is not compulsory, but instead subject to a standard of
substantial compliance. We agree that the lower court’s legal determination is erroneous.
It is well-settled that the “so-called technicalities of the Election Code” must be strictly
enforced, “particularly where . . . they are designed to reduce fraud.” Appeal of Pierce,
843 A.2d at 1234; accord Appeal of James, 105 A.2d 64, 65-66 (Pa. 1954); see also
[J-98-2020] - 19
American Labor Party, 44 A.2d at 50 (“Use of the word ‘shall’ indicates that the statutory
time limit is mandatory.”); Steel, 105 A.2d at 141 (“[T]he ‘shall’ in the cited provision of
Section 909 [of the Election Code] is no less mandatory [than the ‘shall’ appearing in
Section 977]. To hold otherwise would be to thwart the evident intent and purpose of the
provision and to introduce confusion, if nothing worse, in connection with the filing of
nomination petitions.”).
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 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.
Cianfrani, 359 A.2d at 384. 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
[J-98-2020] - 20
requirements of the Election Code was not permitted to be added to the general election
ballot).
The Election Code affords the Department of State 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.”
Id. § 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. Indeed, Scroggin’s name alone was included among the more than 700 pages of
submitted paperwork as the party’s nominee for that office. 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. Barr, 956 A.2d
at 1087. 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.” Cianfrani, 359 A.2d at 384 (emphasis added). By appending Hawkins’ affidavit
[J-98-2020] - 21
to the nomination paper instead of Scroggin’s, the Green Party failed to comply with that
statutory command.
In finding to the contrary, the Commonwealth Court erred in a number of respects.
First, by allowing the submission of a facsimile of Scroggin’s purported affidavit, the court
contravened a critical anti-fraud election regulation. Id. (“The requirements of sworn
affidavits are to insure the legitimacy of information crucial to the election process.”). Just
as the signatures of qualified electors must be submitted in original, or “wet,” form so as
to verify their authenticity, so, too, must candidates submit genuine, sworn-and-signed
affidavits to satisfy their filing obligations. The court’s reliance upon Kloiber to excuse
Scroggin’s deficiency in that regard was particularly misplaced. There, the court excused
the candidate’s initial failure to produce a conforming affidavit upon a showing of due
diligence, after the candidate quickly secured a genuine seal from the notary public who
originally signed his nomination petition but had inadvertently failed to affix a seal thereto.
Kloiber, 362 A.2d at 486.
The facts here, conversely, are readily distinguishable because Scroggin has
made no effort to present her original affidavit to the Department, nor has she explained
why she was unable to do so by the filing deadline (or since). Thus, it would be difficult
to conclude that she acted with due diligence in rectifying her deficient filing. According
to Mathis’ testimony just last week, the Bureau still has not received an original affidavit
from Scroggin—more than a month after the filing and withdrawal periods have closed.
The record before us consists of only a photocopy of the faxed submission, a screenshot
of the relevant portion of which is reproduced below. Notably, the last two letters of the
candidate’s signature on that form—which was sent to a general fax number without a
[J-98-2020] - 22
cover letter—plainly appear to have been cut off. These facts undermine the lower court’s
resort to “indicia of reliability,” because there is no way to confirm that the candidate
properly signed the affidavit or that a genuine seal was affixed without the ability to
examine the original.8
Petitioners’ Exhibit P-9
The court also erred in excusing the facsimile’s “method of submission” based
upon the perceived “impracticality of appending Scroggin’s Affidavit under current
circumstances, including Covid-19.” Slip Op. at 9. As Objectors observe, there is no
evidence that pandemic-induced delays deprived Scroggin of the opportunity to have her
8 Furthermore, the Commonwealth Court’s decision in Kloiber arguably is in tension
with our holding in Cianfrani—which was decided three months after Kloiber—that the
failure to append an affidavit is a fatal defect incapable of being cured by subsequent
conduct. Although the issue of Kloiber’s validity is not before us, we observe that under
neither standard would Scroggin be entitled to relief here.
[J-98-2020] - 23
affidavit submitted in person, nor has she suggested as much in these proceedings. The
court reasoned that electronic submission was “expressly permitted based on the reduced
staff and limitations resulting from” the pandemic. Id. at 8. However, Mathis specifically
testified that the Department began accepting, via e-mail, the submission of unsworn
statements from the candidates on behalf of their twenty presidential electors. N.T.
9/7/2020, at 67. She did not say that candidates were permitted to submit their own
affidavits via email, sworn or otherwise. That is likely because the submission of an
original signature was necessary to effectuate the filing. Moreover, the fact that the
nomination paper and related affidavits for Hawkins and every candidate other than
Scroggin and Gale were delivered in person belies the court’s suggestion that submission
by fax or email was permissible for candidates. Rather, it appears that the Green Party
mistakenly believed that it could satisfy the filing requirements by submitting the affidavits
of Hawkins and Walker instead of those executed by the candidates actually named in
the nomination papers, and then scrambled to obtain Scroggin’s affidavit (but not Gale’s)
before the 5:00 p.m. deadline when it became apparent that the filing could be rejected
later during the objections process.
The court’s determination that “substantial compliance” was sufficient to excuse
Scroggin’s oversight likewise is unsupported by the precedent outlined above, which
makes clear that strict compliance with the affidavit requirement is mandatory, not
directory. See Brown, 133 A.2d at 813; Appeal of James, 105 A.2d at 65-66. Judge
Crompton reasoned that, notwithstanding the plain language of 25 P.S. § 2911(e),
Scroggin was not required to “append” her affidavit to the nomination petition because
the Department’s instructions to candidates did not use the word “appended” and
[J-98-2020] - 24
because Scroggin lacked notice that the alleged defect could jeopardize her candidacy.
But it is the Election Code’s express terms that control, not the written guidance provided
by the Department. And as this Court repeatedly has cautioned, even erroneous
guidance from the Department or county boards of elections cannot nullify the express
provisions of the Election Code. See Guzzardi, 99 A.3d at 388 (“[E]ven if there was some
miscommunication at the Department of State . . ., this does not offset the underlying,
self-acknowledged mistake” of the candidate “in failing to apprehend, from the outset, the
express statutory requirement to file a statement of financial interests with the Election
Commission.”); Appeal of Pierce, 843 A.2d at 1225 (holding that the delivery of absentee
ballots by third persons rendered them invalid, notwithstanding indications from the
Allegheny County Board of Elections that the practice was permitted).
But in any event, the Secretary’s guidance for political-body candidates clearly and
accurately instructed the candidates as to the method, time, and place for filing affidavits
of candidacy:
10. CANDIDATE’S AFFIDAVIT AND ETHICS STATEMENT: Each candidate
for public office must sign and submit one CANDIDATE’S AFFIDAVIT per
set of nomination papers. The CANDIDATE’S AFFIDAVIT is a separate
form and may be obtained from the Bureau of Election Services and
Notaries, Room 210 North Office Building, Harrisburg, PA 17120. . . .
11. FILING FEES:
a) For Statewide offices (President of the United States, United States
Senator, Attorney General, Auditor General, State Treasurer) –
$200.00; . . .
b) The filing fee for offices specific in (a) must be presented with the
nomination paper and must be made by CERTIFIED CHECK or
MONEY ORDER payable to the Commonwealth of Pennsylvania. A
separate filing fee must be submitted for each candidate named in the
nomination paper.
12. TIME AND PLACE TO FILE: Nomination papers for all offices listed in
11(a) are filed in the office of the Secretary of the Commonwealth, at
[J-98-2020] - 25
Room 210 North Office Building, Harrisburg, PA 17120, and must be
filed by 5:00 P.M. on the deadline to file nomination papers. Nomination
papers for local offices are filed in the Office of the County Board of
Elections.
Petitioner’s Exhibit P-4 (Political Body Nomination Paper General Instructions Sheet
(DSBE PB), at 2) (emphases in original); see N.T. 9/7/2020, at 14-18. That guidance
provides the specific office and room number in which the affidavit “must be filed.” It says
nothing about emailed or faxed submissions, and the Green Party Candidates cite no
precedent for permitting the substitution of a facsimile where a sworn affidavit with an
original signature is required. Once again, the record undermines the court’s conclusion.
Additionally, Mathis testified that she instructed Runkle—the agent designated by
Scroggin and the other Green Party candidates to deliver the nomination paper—that he
was required to file affidavits for both Scroggin and Gale because they were necessary
to allow for timely objections. Id. at 33. Thus, the Green Party expressly was put on
notice by the Bureau, in person, that an original affidavit was required. Perhaps
recognizing the existence of that fatal defect, the facsimile of Scroggin’s affidavit shows
that it purportedly was notarized in Montgomery County that same day. By sanctioning
this short-circuiting of the nomination process, the Commonwealth Court impinged the
Objectors’ statutory right to challenge Scroggin’s candidacy. Qualified electors who wish
to object to nomination papers, whether because of an insufficient number of valid
signatures or material defects on the face of the nomination paper or affidavits of
candidacy, only have seven days from the filing date to do so. 25 P.S. § 2937. The
Election Code requires that an original affidavit be “appended” to a candidate’s
nomination paper at the time of filing in order to avoid this exact scenario. Because
anyone can send an unsolicited facsimile of an affidavit to a general fax number
[J-98-2020] - 26
associated with the Department of State, absent strict compliance with the presentment
and filing mandate, probity in the nominations process cannot be assured.
The consequences of the Green Party’s 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 of the Commonwealth. 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,
22 A.2d at 21 (“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 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.9
9 The record is devoid of documentary evidence to substantiate whether Scroggin
moved to withdraw her name from nomination in accordance with the Election Code’s
requirements that withdrawals also be effectuated in a sworn writing. See 25 P.S. § 2938.
[J-98-2020] - 27
IV. Conclusion
In sum, the Commonwealth Court erred in dismissing Objectors’ petition to set
aside Scroggin’s nomination, and Hawkins’ substitution, as the Green Party’s candidate
for President of the United States. Scroggin failed to comply with the Election Code’s
strict mandate that she append an original affidavit to her nomination paper, and the
party’s use of Hawkins’ affidavit while presenting a nomination paper in which he was not
“named therein” did not suffice to cure that error. That defect was fatal to Scroggin’s
nomination and, therefore, to Hawkins’ substitution. Accordingly, the Secretary of the
Commonwealth is directed to remove Howie Hawkins and Angela Walker from the
general election ballot as the Green Party’s nominees for President and Vice President.
The stay entered by this Court on September 14, 2020, is hereby lifted.
Justices Baer, Todd, Donohue, and Dougherty join this opinion.
Chief Justice Saylor files a concurring and dissenting opinion in which
Justice Mundy joins.
[J-98-2020] - 28