The Consequence of a Partisan Court: Pennsylvania’s Anti-Democratic Rejection of the Green Party
On September 17, the Commonwealth of Pennsylvania began printing ballots for November’s election after the Pennsylvania Supreme Court made its final decisions regarding ballot access. In southeastern Pennsylvania alone, over 600,000 voters had already requested mail-in ballots. [1] Members of the major parties awaited the chance to cast their vote for the presidential ticket of their choice. However, not all the presidential tickets were actually represented on the ballot; the Green Party’s candidates for president and vice president had been struck from the ballot over a filing error in the Pennsylvania Supreme Court case In Re: Nomination Paper of Scroggin. An examination of this case and the court that decided it reveals that partisan ballot decisions like In Re: Scroggin undermine democratic principles and subvert evenhanded justice while enabling the duopoly of the major parties.
In Re: Scroggin was brought forth by Paul Stefano, chairman of the Lawrence County Democratic Party, and Tony Thomas, a Democratic candidate for the Wilkes-Barre City Council in 2019. [2] In the lead-up to the 2020 election, political outlets remembered the role that votes for the Green Party had played in the 2016 election in Pennsylvania, with Donald Trump leading Hillary Clinton in the state by 44,292 votes and Green Party candidate Jill Stein receiving 49,941 votes. [3] Since Democrats and Greens are both considered to fall under the broad “left” side of the political spectrum, a Green candidate on the ballot is often believed to siphon votes away from Democratic candidates. Democrats, therefore, would have a keen interest in limiting Green Party votes, while Republicans consequently would have an interest in keeping Greens on the ballot.
The facts of In Re: Scroggin beg the question: did partisan interests make their way to the Pennsylvania Supreme Court, or was the removal of the Green Party reasonably justified under the law? In Re: Scroggin and its precedents ultimately reveal that the legal justification for the Greens’ removal—that incorrectly submitted affidavits were a “fatal error”— was flimsy.
In Re: Scroggin centers around the filing of affidavits by four individuals: Howie Hawkins, Green Party candidate for president, Angela Walker, Green Party candidate for vice president, Elizabeth Faye Scroggin, placeholder Green Party candidate for president, and Neal Taylor Gale, placeholder Green Party candidate for vice president. Scroggin and Gale submitted affidavits as “placeholder” candidates because Pennsylvania’s filing deadline fell a number of days before the Green Party’s national convention. [4] It was understood that once the national convention selected its candidates, Scroggin and Gale would be replaced by the official candidates. Though Hawkins and Walker completed this process correctly, Stefano and Thomas objected to their place on the ballot, citing filing errors by Scroggin and Gale. While Scroggin left the last two letters of her last name off her signature in her affidavit, Gale emailed his affidavit to the Department of State rather than delivering in person. [5] Director of the Bureau of Elections and Notaries, Jessica Mathis, maintains that “the Department, in its discretion, chose not to require that affidavits be presented for Political body candidates at the time of filing because the Election Code did not ‘requir[e] it of the major parties.’” [6]
Despite Mathis’ claim, the Pennsylvania Supreme Court ruled that “the absence of Gale’s affidavit was fatal to his nomination, thereby depriving Walker of the opportunity to invoke the substitution mechanism under Section 980 of the Election Code, 25 P.S. § 2940.” [7] This fatal error prompted the removal of the Green Party presidential ticket from the ballot altogether. One might expect that if the Democratic or Republican candidates made this error, they would not have been removed from the ballot. In fact, the lower court decision in this case made this exact point, citing a case in which a Democratic candidate made a filing error and was allowed to remain on the ballot.
In removing the Green Party from the ballot, the Pennsylvania Supreme Court reversed the lower Commonwealth Court decision as well as the precedent that it cited. The Commonwealth Court had decided the case in favor of the Green Party candidates, noting that, “In light of the indicia of reliability supplied by the notarization of her signature… invalidating Scroggins’ affidavit based on the lack of [an] original signature [would have] elevated form above substance.” [8] The Commonwealth Court largely based its decision off of a 1976 decision in the case of Commonwealth v. Kloiber, a case in which Louis Kloiber, who was running to be a Member of the State Committee of the Democratic Party, mailed his affidavit to the Department of State without the seal of a Notary Public. While his affidavit was initially rejected, the Commonwealth Court ruled in Kloiber’s favor, deciding that, “where good faith and due diligence is demonstrated by the petitioning candidate the court will permit the amendment so as to prevent the candidate from being deprived of his right to run for public office because of a technical oversight.” [9] “Good faith,” a term that leaves much to justices’ discretion, “ may require an honest belief or purpose, faithful performance of duties, observance of fair dealing standards, or an absence of fraudulent intent.” [10]
The Commonwealth Court’s decision also follows in the tradition of numerous US Supreme Court decisions, such as Williams v. Rhodes, which emphasized that, “third parties are often important channels through which political dissent is aired,” [11] or Sweezy v. New Hampshire, which argued that “[a]ll political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, which innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. . . . The absence of such voices would be a symptom of grave illness in our society." [12] Evidently, precedent, both federal and statewide, places the values of democratic access and association of minor parties above strict adherence to statutory provisions, provided that candidates act in good faith.
Given the clarity of this precedent, the Pennsylvania Supreme Court’s decision appears out of step with established legal norms. Though Chief Justice Saylor concurred with the majority, he argued that “the error was at least curable in the discretion of the Commonwealth Court. Moreover, since in light of that court’s disposition it did not exercise such discretion, the matter should be remanded for an immediate decision whether to permit the submission of an original affidavit.” [13] How, then, with abundant time to resolve the affidavit error, no evidence of fraud by the candidates, and clear precedent that places democratic access over technical precision, was In Re: Scroggin decided in this way? The answer may lie in the state’s system of partisan election of justices.
The system of partisan election of justices has been extensively debated and currently exists in six states. Other systems include nonpartisan elections, gubernatorial appointment, legislative appointment, merit selection (which entails gubernatorial appointment approved by a nominating commission), and hybrid methods. [14] Of these various methods, partisan election of justices is most positively linked with distrust in the judiciary: a 2007 study at the Annenberg Public Policy Center at the University of Pennsylvania found that “Americans who live in states that hold partisan judicial elections are more distrusting of the courts than Americans who live in states that do not hold such elections.” [15] This distrust is somewhat counterintuitive. Shouldn’t people feel more confident in justices they’ve had the chance to elect? That may be the case for partisan elections of lawmakers, but in the case of the judiciary, partisan affinity and campaign donations undercut the principle of impartiality foundational to the justice system.
Alicia Bannon, managing director of the Democracy Program at the Brennan Center for Justice at New York University School of Law, writes that “[a] judge’s job is to apply the law fairly and protect our rights, even when doing so is unpopular or angers the wealthy and powerful.” [16] How possible is this, when the wealthy and powerful have funded or provided critical voter outreach infrastructure to justices’ campaigns? She continues: “If a judge rules against a major donor, will that donor still fund her next campaign? If she angers a powerful political interest, will she face an avalanche of attack ads? These electoral pressures create a morass of conflicts of interest that threaten the appearance, and reality, of fair decision-making.” [17] The potential for corruption and conflict of interest introduced by the partisan election of justices is clear and widely felt, as “... nearly 90 percent of respondents to a 2013 poll said they believed that campaign cash affects judicial decisions.” [18]
In light of In Re: Scroggin, the existing critique of the partisan election of justices, centered primarily on the role of campaign finance, can be expanded to include the influence of justices’ political parties over their decision-making, especially on ballot disputes. Faced with In Re: Scroggin, every Democrat on the bench ruled against the candidates while every Republican on the bench ruled in their favor. Whether they made their decisions with their parties’ interests in mind is impossible to know, but the appearance of partisanship is potent. While supporters of partisan election of justices argue that partisanship on the bench is democratic, in cases of election law and ballot disputes it is anything but democratic. The exclusion of one party on flimsy grounds and against precedent, decided along party lines, ultimately amounts to voter suppression. Reflecting the interests of those who voted for you does not justify violating other constituents’ rights of association. Ultimately, decisions on election matters like In Re: Scroggin, which was made by an inherently partisan judiciary, threaten to undermine the impartiality of the justice system, facilitate the duopoly of the Republican and Democratic parties, and set a dangerous, anti-democratic precedent.
Sources:
[1] Brian X. McCrone, “Pennsylvania Voters Will Begin Receiving Mail-in Ballots Soon, Officials Say,” NBC Philadelphia, September 17, 2020, nbcphiladelphia.com/news/politics/decision-2020/pennsylvania-voters-will-begin-receiving-mail-in-ballots-soon-official-say/2536706/
[2] Chris Brennan, “2 Democrats are trying to knock Green Party presidential candidate Howie Hawkins off the ballot in Pennsylvania,” Philadelphia Inquirer, September 8, 2020, fusion.inquirer.com/politics/clout/green-party-presidential-candidate-howie-hawkins-pennsylvania-ballot-20200908.html
[3] Ibid.
[4] In Re: Nom Papers of E Scroggin; Appeal of Stefano, 55 MAP 2020 (Pa. 2020), 2.
[5] In Re: Nom Papers of E Scroggin; Appeal of Stefano, 55 MAP 2020 (Pa. 2020), 3.
[6] In Re: Nom Papers of E Scroggin; Appeal of Stefano, 55 MAP 2020 (Pa. 2020), 5.
[7] In Re: Nom Papers of E Scroggin; Appeal of Stefano, 55 MAP 2020 (Pa. 2020), 6.
[8] In re Nomination Paper of Scroggin, 460 M.D. 2020, at 29-30, casetext.com/case/in-re-nomination-paper-of-scroggin
[9] Kloiber Nomination Petition, 26 Pa. Commw. 50, 362 A.2d 484 (Pa. Cmmw. Ct. 1976)
[10] “Good Faith,” Cornell Legal Information Institute, law.cornell.edu/wex/good_faith
[11] Williams v. Rhodes, 393 U.S. 23 (1968), supreme.justia.com/cases/federal/us/393/23/
[12] Sweezy v. New Hampshire, 354 U.S. 234 (1957), supreme.justia.com/cases/federal/us/354/234/
[13] In Re: Nom Papers of E Scroggin; Appeal of Stefano, 55 MAP 2020 (Pa. 2020), 1.
[14] “Judicial Selection, an Interactive Map,” Brennan Center For Justice, judicialselectionmap.brennancenter.org/?court=Supreme
[15] Jamieson, Kathleen Hall, and Bruce W. Hardy. "Will Ignorance & Partisan Election of Judges Undermine Public Trust in the Judiciary?" Daedalus 137, no. 4 (2008): 11-15. Accessed November 24, 2020. jstor.org/stable/40544056.
[16] Alicia Bannon, “Choosing State Judges: A Plan for Reform,” Brennan Center at New York University School of Law, brennancenter.org/sites/default/files/2019-08/Report_Choosing_State_Judges_2018.pdf
[17] Ibid
[18] Ibid