In a well-considered Opinion and Order issued yesterday, President Judge Craig A Dally denied petitions to correct ballot errors filed by Nazareth Area School Board candidates Wendy Whiteash and Linda Stubits. Both had cross-filed and expected to see their names listed under both parties, which is precisely how cross-filed candidates appeared on a ballot prior to the massage changes to the Election Code enacted in 2019. Instead, they were listed only once, as "Democratic/Republican," on the Democratic side of the ballot. They were listed on the Democratic side because cross-filed candidates are listed under the party of the Governor in office. Both are Republicans, and they argued that the way they were listed would discourage partisan Republicans from voting for them. Both candidates, incidentally, won their election on Tuesday.
Though they acted pro se, Judge Dally notified the county of their concerns and conducted a two-hour hearing on Friday. Although he acknowledged that he has the authority to issue an Order to correct a "mistake or omission" in a ballot, he noted that he is also bound by strict rules of statutory interpretation that prevent a judge from disregarding the letter of the law under the pretext of "pursuing its spirit." He then went on to point out that the current Election Code provides that, for cross-filed candidates, "[t]heir name shall be printed once."
In a footnote, Judge Dally observes that the 2019 changes to the Election Code under Act 77 were the very same that instituted mail-in balloting as well as the elimination of straight party voting. He concludes this change "effectively eliminated the requirement to list cross-filed candidates on both sides of the ballot as voters could no longer vote for candidates only from one of the parties with a single mark or act." He also pointed out that Act 77 was challenged and upheld by the state supreme court.
In addition, Judge Dally contends that this is matter that should have been brought to the Elections Commission. He received no evidence that the Elections Commission failed to properly review the ballot before the election.
I very much appreciate the time Judge Dally took to weigh these concerns, although I disagree with his conclusions. It is true that Act 77 provides that the name of a cross-filed candidate shall be listed once, but it never states that the name shall be listed "only" once. The conclusion that the name shall be published only once is itself a matter of statutory interpretation that goes beyond the language of the statute.
It's also true that Act 77 eliminated straight party voting, but even if a candidate is listed under both sides as a Democrat and as a Republican, it is still impossible to vote straight party. This double -labeling just prevents voters from thinking that a cross-filed candidate whose name is listed under a Democratic Governor is actually a Democrat. It also would prevent voters from thinking that a cross-filed candidate whose name is listed under a Republican Governor is actually a Republican.
I am aware that Act 77 has been upheld, but not on this issue.
I'd agree that the Elections Commission would be the proper venue for this challenge in the first instance. But unfortunately, the Court was never presented with evidence that the Elections Commission was itself never provided with an opportunity to review the ballot.
Finally, I'd contend, under Judge Dally's interpretation of Act 77, it violates the Pa Constitution requirement that all elections be "free and fair." There is nothing fair about penalizing a cross-filed ballot by restricting her to one side of the ballot. But unfortunately, courts have no authority to raise constitutional issues on their own and operate from a presumption that all statutes are constitutional.
I'd hope that the state legislature revises Act 77 or that the language be challenged in a future action in which the courts and parties have more time to consider all issues.
PJ Craig Dally Denies Petition to Correct Ballot Challenge Filed by Wendy Whiteash by BernieOHare
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