[J-61-2018] [MO: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

WORKING FAMILIES PARTY, 

CHRISTOPHER M. RABB, DOUGLAS B. 

BUCHHOLZ, AND KENNETH G. BEISER,

Appellants

v.

COMMONWEALTH OF PENNSYLVANIA, 

ROBERT TORRES, IN HIS OFFICIAL 

CAPACITY AS ACTING SECRETARY OF 

THE COMMONWEALTH OF 

PENNSYLVANIA AND JONATHAN M. 

MARKS, IN HIS OFFICIAL CAPACITY AS 

COMMISSIONER, BUREAU OF 

COMMISSIONS, ELECTIONS AND 

LEGISLATION, DEPARTMENT OF 

STATE, COMMONWEALTH OF 

PENNSYLVANIA,

Appellees

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No. 34 EAP 2017

Appeal from the order of 

Commonwealth Court entered on 

September 18, 2017 at No. 435 MD 

2016.

ARGUED: September 25, 2018

CONCURRING AND DISSENTING OPINION

JUSTICE TODD DECIDED: June 5, 2019

I join Justice Wecht’s concurring and dissenting opinion to the extent he concludes 

that the anti-fusion provisions at issue, as applied to Appellants, violate the Equal 

Protection Clause of the federal Constitution.1 For the reasons he expresses, I agree that

 

1 As a result, I would not reach Appellants’ arguments under our state Constitution. I 

would note, however, given the weakness of the justification offered by the 

Commonwealth for the anti-fusion provisions, I am nonetheless dubious the provisions 

would withstand scrutiny under our state charter.
[J-61-2018] [MO: Mundy, J.] - 2

the anti-fusion provisions have an unconstitutionally discriminatory effect on Appellants, 

in light of the weakness of the government’s proffered interests and the existence of lessburdensome statutory alternatives. In my view, Justice Wecht eviscerates the 

Commonwealth’s internally inconsistent argument that the anti-fusion provisions are 

justifiable because of the Commonwealth’s need to determine vote strength – that is, to 

disaggregate votes were a candidate allowed to secure the nomination of multiple political 

parties or political bodies – while insisting that the parties/bodies have no countervailing

interest in ensuring that their members may vote for their first choice candidate in a 

manner that also reflects their chosen party affiliation. I add one further observation 

concerning the legislative history of the Election Code. 

The Commonwealth’s claim that the anti-fusion provisions “serve an important 

regulatory purpose” hinges on the operation of 25 P.S. § 2963(d), as it is this section of 

the Election Code that requires that a single checkbox be placed on the ballot regardless 

of the number of parties by which a candidate is nominated. See Commonwealth’s Brief 

at 36-39; see also Declaration of Jonathan Marks, 9/2/2016, at ¶¶ 47-51. Subsection (d)

presently provides:

Whenever any candidate shall receive more than one 

nomination for the same office, his name shall be printed 

once, and the names of each political party so nominating him 

shall be printed opposite the name of such candidate, 

arranged in the same order as candidates names are required 

to be arranged. At the right of all the party names or 

appellation shall be a single square of sufficient size for the 

convenient insertion of a cross (x) or check (✓) mark.

25 P.S. § 2963(d) (emphasis added). This section is the primary basis for the 

Commonwealth’s argument that votes for fusion candidates cannot be disaggregated, 

and, thus, that the strength of fusion candidates’ support cannot be measured for 

purposes of the calculations required in the Election Code’s definitions of political parties 
[J-61-2018] [MO: Mundy, J.] - 3

and political bodies. See id. § 2831 (defining political parties and political bodies based 

upon the votes cast for them in prior elections). Accordingly, given the ballot design, in 

the Commonwealth’s view, the anti-fusion provisions are necessary for the smooth 

operation of the Election Code.

Critically, however, when the anti-fusion provisions were added to the Election 

Code in 1937 – and, indeed, until 1968 – Section 2963(d) mandated disaggregation, by 

allowing a voter both to select a candidate and to select among the parties nominating 

that candidate. The original 1937 language of Section 2963(d), of which only the last line 

has been subsequently revised, provided:

Whenever any candidate shall receive more than one 

nomination for the same office, his name shall be printed 

once, and the names of each political party so nominating him 

shall be printed opposite the name of such candidate, 

arranged in the same order as candidates names are required 

to be arranged. At the right of every party name or 

appellation shall be a square of sufficient size for the 

convenient insertion of a cross mark.

Act of June 3, 1937, P.L. 1333, art. X, § 1003(d) (emphasis added). Except for 

inconsequential alterations, the Code retained this feature until 1968, when the 

Legislature amended subsection (d) to its present form. See Act of July 16, 1968, P.L. 

354, No. 175.2

This legislative history belies the Commonwealth’s claim that the problem of 

disaggregation is the “important regulatory purpose” served by the anti-fusion provisions, 

given that, as originally implemented and for over thirty years thereafter, a disaggregated 

 

2 As set forth in the text of the act (with deletions bracketed and additions underlined), the 

last sentence of subsection (d) was revised in 1968 as follows: “At the right of [every 

party name] all the party names or appellation shall be a single square of sufficient size 

for the convenient insertion of a cross (x) or check (✓) mark”. Act of July 16, 1968, P.L. 

354, No. 175.
[J-61-2018] [MO: Mundy, J.] - 4

ballot was part of the Code’s design, alongside the anti-fusion provisions. Indeed, this 

feature of the ballot – that it allowed for disaggregated voting – is, in part, what prompted 

this Court in Appeal of Magazzu, 49 A.2d 411 (Pa. 1946), to create what is termed the

“Magazzu exception,” allowing political parties to fuse via write-in ballots. We came to 

this conclusion because we observed – citing, inter alia, the then-extant version of Section

2963(d) – that the Code “contemplated a possible nomination by more than one party by 

the use of ‘write-in’ ballots.” Id. at 412.

Accordingly, I agree with Appellants that the Commonwealth’s presently-asserted 

disaggregation problem is “an obstacle of the Commonwealth’s own making.” Appellants’

Reply Brief at 6.

3

 Indeed, in a tail-wagging-the-dog fashion, it appears the essential

justification offered by the Commonwealth for the constitutionality of the anti-fusion 

provisions is based upon a legislative tweak, albeit a consequential one, injected into the 

Election Code decades after the anti-fusion provisions were first enacted. 

For this additional reason, the Commonwealth’s stated justifications cannot 

support the discriminatory effect of the anti-fusion provisions, as applied to Appellants. 

Justice Donohue joins this concurring and dissenting opinion.

 

3 The disaggregation problem created by the 1968 amendment became immediately 

apparent, as addressed in Youngman Party v. Lycoming County Board of Elections, 47 

Pa. D. & C.2d 367 (Lycoming Cnty. 1969). Therein, candidates of the Youngman Party 

were cross-nominated by either the Democratic or Republican Party in the primary 

election and won the primary. Thereafter, in 1968, 25 P.S. § 2963(d) was amended, and, 

thus, at the ensuing general election, the ballot provided only one checkbox for each 

candidate, even though each of the Youngman Party candidates were cross-nominated. 

Ultimately, for purposes of the calculations in 25 P.S. § 2831, the court determined the 

Youngman Party candidates should be credited with 100% of the vote.