IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY

Civil Action—Law



 

JULIAN HEICKLEN

Chair, Libertarian Party of Centre County

Petitioner

 

v.                             Case No. 01—194 Misc.

 
JOYCE MCKINLEY

Director, Centre County Board of Elections

Respondent

 
 
PETITION TO REMOVE STUDENT PARTY CANDIDATES

ORAL ARGUMENT

  1. 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.
  2. 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."
  3. 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."
  4. 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.
  5. 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.
  6. 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.
  7. 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."
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. The Student Party candidates obtained 41 signatures on their nominating papers. Thus they failed to reach the required number of 55.
  17. Petitioner moves that the student Party candidates not be placed on the ballot for the November 6, 2001, general election.
__ ___________________
Julian Heicklen, Petitioner

________August 23, 2001_
Date