[ J

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- 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,
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: No. 34 EAP 2017
Appeal from t he 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 Com monwealth for the anti

- fusion provisions , I am nonetheless dubious the provisions would wi thstand scrutiny under our state charter

.[ J

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- 2018 ] [MO: Mundy, J. ]

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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 less

burdensome statutory alternatives

. In my view, Justice Wecht eviscerates the

Commonwealth’s internally inconsistent argument that the anti

- fusion provisions are
justifiable bec ause 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 c laim 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 p arties by which a candidate is nominated

. See Commonwealth ’s Brief

at 36

- 39; s ee 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 arrang ed. 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 f o r fusion ca ndi dates 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

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- 2018 ] [MO: Mundy, J. ]

- 3

and political bodies. See id. § 2831 (definin g 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 provision s are necessary for the smooth
operation of the Election Code.
Critically, however, when the anti

- fusion provision s were add ed 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 arrang ed. At the right of every party name or appellation shall be a square of sufficien t 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,
give n that, as origin al ly 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 name s 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

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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

t his 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
disaggr egation problem is “an obstacle of the Commonwealth’s own making

. ” Appellants ’
Reply Brief at 6

. 3 Indeed, in a tail

- wag ging

- the

- dog fashion, it appears the essential
justification offered by the Commonwealth for the constitutionality of the anti

- fusion

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

Election Code decades after the anti

- fusion provision s 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 Election s , 47 Pa. D. & C.2d 367 ( Lycoming C n ty. 1969). Therein, candidates of the Youngman Party
were cross
- no minated 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 , eve n 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.