There are two issues involved in this case: a) The candidate
to use for the two per centum requirement, and b) The election year to
use to compute the two per centum requirement. Petitioner claims that the
two issues are separate and disjoint. The Respondent and other political
bodies claim that the two issues are joined, and that a decision regarding
one applies also to the other.
Pennsylvania Statute 25 P.S. §2911(b), states
in part: "In the case of all other nominations, the number of qualified
electors of the electoral district signing such nomination papers shall
be at least equal to two per centum of the largest entire vote cast for
any officer, except a judge of a court of record, elected at the last preceding
election in said electoral district for which said nomination papers are
to be filed,…" Petitioner claims that "election district for which said
nomination papers are to be filed" refers only to the "last preceding election,"
and not to the "entire vote cast for any officer." The Respondent and other
political bodies claim that "election district for which said nomination
papers are to be filed" includes both the "last preceding election," and
the "entire vote cast for any officer."
Petitioner claims that if the latter was intended, the
wording would have been "two per centum of the largest entire vote cast
for any officer, except a judge of a court of record, elected at the last
preceding election in said electoral district." There would have been no
need to add the phrase "for which said nomination papers are to be filed."
The Supreme Court in Moore v. Osser, Section 3
agrees with Petitioner’s interpretation, for it says the phrase "for which
said nomination papers are to be filed" "was necessary to particularize
which electoral district was referred to by the words ‘last preceding election’."
It does not say that it was needed to specify which candidate’s vote total
to use for the basis of the two per centum.
In Note 6 of 25 P.S. §2911, in the
first paragraph that starts on page 370 of Purdons, it states, in part:
"In computing the number of signatures necessary for a nomination petition
under this section the basis is the largest number of votes cast in the
election district at the last general election, even though the candidates
were elected on a city-wide basis, rather than an election district basis."
This statement is based on the 1979 case of the Winsley Nomination.
The Respondent and other political bodies claim that
this statement is in error. Such election challenges probably occur often
somewhere in Pennsylvania. It is stretching credulity to believe that Purdons
would not have corrected this error in the 22 years since the Winsley
Nomination case.
This position is stated more forcefully in the decision
of the Winsley Nomination Petition, 11 D. & C. 3d, 781 (1979)
(Exhibit A): "In computing the number of signatures necessary for a nomination
petition under section 951 of the Pennsylvania Election Code of June
3, 1957, P.L. 1333, the basis is the largest number of votes cast in
the election district at the last general election, even though the candidates
were elected on a city-wide rather than an election district basis, rather
than at the last election at which a candidate was elected by the particular
election district involved."
There are two court decisions that bear on this issue.
The first is a Pennsylvania Supreme Court decision, Moore v. Osser,
233 A.2d 579 (1967) (Exhibit B). This case involved an election for mayor,
a four-year office. One side contended that the appropriate general municipal
election for the basis should be the last previous one (two years prior).
The other side contended that the appropriate general municipal election
for the basis should be the last previous general election in which a mayor
was elected (four years prior). The Court ruled in favor of the two-year
prior election, stating that the basis is related to the election, not
to the office. The issue of the candidate to use for computing the two
per centum never even arose.
In Stith’s and Leto’s Amicus Curiae briefs, Section
10, they assert that the Supreme Court agrees that the candidate to use
to calculate the two per centum must be a candidate running exclusively
in the same election district. The Supreme Court does appear to be saying
that, although this statement contradicts its previous statement that the
phrase "for which said nomination papers are to be filed" is needed to
determine the election district (not the candidate). However the Supreme
Court never ruled on this issue, because it was not only irrelevant, but
could not have possibly entered the discussion, which centered on two candidates
running in the same city-wide election district.
The applicability of the Moore v. Osser case
to this year’s election in Centre County is that the election year to use
to compute the two per centum for jury commissioner is 1999, even though
there was no election for jury commissioner that year.
The second court ruling was in the Winsley Nomination
Petition. Here one side claimed that the appropriate general municipal
election for the basis should be the last general municipal election (two
years prior). The other side contended that the appropriate general municipal
election for the basis should be the last one for which electors could
elect someone in that specific election district (four years prior). This
side did not contend that the basis had to be taken from candidates running
solely in that district. The court ruled in favor of the second position.
The Court was aware of both section 951 of the Pennsylvania Election
Code of June 3, 1957, P.L. 1333 and the Moore v. Osser decision.
The applicability of the Moore v. Osser decision
to this year’s election in Centre County is that the election year to use
to compute the two per centum for judges of elections and inspectors of
elections is 1997, because there were no precinct-wide elections in 1999.
In Stith’s and Leto’s Amicus Curiae briefs, Sections
16—19, it is pointed out that other counties, the PA Board of Elections,
and the Committee of Seventy use the vote totals of candidates running
exclusively in the same election district. However, they provide no documentation
for this assertion, such as written statements by any of these people.
Thus the information is hearsay. However, even if it is true, it is a strange
argument that if others are violating the law, Centre County should join
them.
Based on the above, the correct basis for the State
College offices in November 2001 should be the highest vote total for any
candidate, whether county-wide, school-district wide, or borough-wide,
in the last election in which State College positions were elected, i.e.
the election of 1999.
In the general election of November 1999, Roger Bierly,
running for a county-wide office, received 2751 votes in State College
Borough. Thus the number of signatures needed is two per centum of that,
or 55.
The Student Party candidates obtained 41 signatures
on their nominating papers. Thus they failed to reach the required number
of 55.
Petitioner moves that the student Party candidates not
be placed on the ballot for the November 6, 2001, general election.