Romanelli's Supreme Argument

Green Party candidate Carl Romanelli, despite having gathered over 50,000 uncontested signatures of Pennsylvania voters on his nominating petitions, is off the ballot unless he can convince the Pennsylvania Supreme Court that an election is an election.

Romanelli finds himself in this position because, in 2004, Bobby Casey Junior, running against an underfunded "who???", in a Presidential election year which saw the largest voter turnout in Pennsylvania history, picked up alot of votes. The Pennsylvania statute at play (25 P.S. Section 2911(b)) states, in pertinent part, as follows (emphasis added):

Where the nomination is for any office to be filled by the electors of the State at large, the number of qualified electors of the State signing such nomination paper shall be at least equal to two per centum of the largest vote cast for any elected candidate in the state at large at the last preceding election at which State-wide candidates were voted for.

This statute clearly requires that the touchstone for the third-party nominating petition shall be the largest number of votes received by a successful "candidate" in the preceding statewide "election". For this year's general elections, the State Board designated the 2004 election of Casey as "the largest vote cast for any elected candidate in the state at large at the last preceding election at which State-wide candidates were voted for", leading to the 67,000+ signature requirement for this year's minor party candidates.

But, there was a statewide election in 2005 -- the judicial retention election of Justice Sandra Schultz Newman. She won retention with about 800,000 votes, meaning that Romanelli would need submit slightly less than 16,000 signatures. (That's her photo just below this paragraph.)

Romanelli is challenging the State Election Board's dictation that the 2005 election was not an election, and has recently filed his brief with the Pennsylvania Supreme Court (h/t to PoliticsPA). Before referring to Romanelli's brief, however, let us take a look at the primary sources for the argument -- the State Constitution and legislation. The issue appears to come down to the question of whether Newman was a "candidate" in an "election".

Section 15 of the Constitution of the Commonwelath of Pennsylvania addresses the retention of judges (emphasis added):

(b) A justice or judge elected under section thirteen (a), appointed under section thirteen (d) or retained under this section fifteen (b) may file a declaration of candidacy for retention election with the officer of the Commonwealth who under law shall have supervision over elections on or before the first Monday of January of the year preceding the year in which his term of office expires. . . .

The State Constituion here does two important things -- it makes it clear that the judge seeking to remain in office is (i) a CANDIDATE in (ii) a retention ELECTION. There is no asterisk next to either term in the Constitution, or explanation later that the drafters weren't "serious about that" when they called the judge standing for retention a candidate in an election.

Then we have the legislation which derives from and enacts section 15 of the Constitution (fyi, the Constitution trumps a statute). Chapter 32, section 3153 of the Pennsylvania Consolidated Statutes addresses the retention "thing" for judges" (NB the link to the statute is to a private site run by a DJ. It is a travesty that our state government refuses to provide the full text of all laws online):

§ 3153. Retention Elections After Regular Term.

(a) General rule.- A judge elected under section 3131 (relating to selection of judicial officers for regular terms) or retained under this section may file a declaration of candidacy for retention election with the Secretary of the Commonwealth on or before the first Monday of January of the year preceding the year in which his term of office expires. If no declaration is filed, a vacancy shall exist upon the expiration of the term of office of such judge, to be filled by election under section 3131(c).

Oops, they did it again -- there's those words problematic to the anti-democratic forces trying to keep a candidate off the ballot -- "candidate" and "election".

It doesn't end there, as Romanelli's brief makes clear, the various election laws enacted by the Pennsylvania State legislature clearly treat the "retention thing" as what the Constitution says it is -- an election:

The judicial code also provides that each judicial officer of the Commonwealth shall be sworn into office and that oath must be taken after a judge’s appointment or election, “and after each retention election….” 42 Pa.C.S. §3151.

There are at least four definitions of the word “election” contained in the Election Code itself.

Section 102(f) provides that “the word ‘election’ shall mean any general municipal, special or primary election, unless otherwise specified.” 25 P.S. § 2602(f), (emphasis added).

Sections 1101 and 1101-A, concerning ballot labels on voting machines and electronic voting systems, respectively, both state that an “election” means “all general, municipal, primary, and special elections.” 25 P.S. §§ 3001(12); 3031.1.

The Pennsylvania campaign finance law, Article XVI of the Election Code, states that “the word ‘election’ shall mean any retention, primary, special, municipal or general election at which candidates appear on the ballot for nomination or election . . . .” 25 P.S. § 3241(c).

A judicial officer who is seeking to be retained for another term is a “candidate for election” under both definitions of what constitutes a “candidate” contained in the Election Code. Compare 25 P.S. § 2602(a) with 25 P.S. § 3241(a). Were a judicial retention candidate not a “candidate for election” then the entire campaign finance reporting system, which no one disputes applies to candidates in judicial retention elections, would be rendered meaningless.

The Romanelli brief goes further and recounts the sundried absurdities which would necessarily result from a reading of the election code to exclude rentention elections within the definition of elections. From the plain text of the Constitution and the statutes deriving their authority from the Constitution, Newman was a candidate for election to a statwide office and her votes should be the measure for third party candidates.

But in addition to the plain meaning argument, Romanelli has another forceful one -- the hard rule, long established and oft repeated in election cases in this Commonwealth -- that in every case the election code must be stretched to its furthest reaches to allow for more ballot access, and every presumpotion against restriction granted. Again, as the Romanelli brief summarizes:

"The Election Code is to be liberally construed so as not to deprive a candidate of the right to run for office or the voters of their right to elect the candidate of their choice.” Smith v. Brown, 590 A.2d 816, 818 (Pa. Cmwlth. 1991). This construction of the Election Code is a longstanding and established policy. See also In re Nomination Petitions of Fumo, 577 Pa. 496, 846 A.2d 672 (2004); font-style: italic;">In re Nomination Petition of Driscoll, 577 Pa. 501, 508, 847 A.2d 44, 49 (2004)(noting that “in reviewing election issues, we must consider the longstanding and overriding policy in our Commonwealth to protect the elective franchise”); Petition of Cioppa, 533 Pa. 564, 570 626 A.2d 146, 149 (1993) (applying the “spirit of liberality in construing our Election Code” prospectively, and noting that the “power to vitiate a ballot for minor irregularities should be used sparingly, … only for very compelling reasons”) (emphasis added).

The Pennsylvania Supreme Court will need to ignore plain text of the Constitution and stautues, and turn away from long-established principle, to kick Romanelli off the ballot. But, in my opinion, our Pennsylvania Supreme Court has before demonstrated the lack of intellect and integrity to permit them to do just that.

I expect that Romanelli will lose a won argument because of the general indifference to law and preference for result-oriented decisions which I think sadly characterize this Court.