           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Democratic Party          :
and Emilio A. Vazquez,                 :
                       Petitioners     :
                                       :
                  v.                   :
                                       :
The Pennsylvania Department of State, :
The Hon. Pedro A. Cortes, and Jonathan :
Marks,                                 :           No. 80 M.D. 2017
                        Respondents :              Argued: March 1, 2017


BEFORE: HONORABLE ANNE E. COVEY, Judge1

OPINION BY
JUDGE COVEY                                        FILED: March 3, 2017

              On February 27, 2017, the Pennsylvania Democratic Party (Party), by
and through Chairman Marcel L. Groen (Groen) and Deputy Executive Director
Corey Pellington (Pellington), filed with the Pennsylvania Department of State
(State Department) a substitute nomination certificate designating Emilio A.
Vazquez (Substitute Candidate) as the Party’s candidate in the March 21, 2017
special election for State Representative in the 197th Legislative District (Substitute
Nomination Certificate). The State Department rejected the Substitute Nomination
Certificate and issued a 2017 Substitute Nomination Certificate Rejection Notice
(Rejection Notice) stating that the Substitute Nomination Certificate “cannot be
accepted for the following reason[]: Untimely Filing.” Rejection Notice.

       1
          Upon consideration of Respondents’, the Pennsylvania Department of State, The
Honorable Pedro A. Cortes, and Jonathan Marks, application requesting designation of the
memorandum opinion as a published opinion, the Court approved the above-captioned opinion
for publication pursuant to 210 Pa. Code § 69.412(c), and the opinion may be cited in accordance
with 210 Pa. Code § 69.414(d).
               On February 27, 2017, the Party and the Substitute Candidate
(collectively, Substitute Candidate) filed with this Court a Petition for Writ of
Mandamus to Require the Department of State to Accept the Substitute
Nomination Certificate (Mandamus Action). On February 28, 2017, the State
Department, the State Department Secretary Pedro A. Cortés, and Jonathan Marks
(collectively, the Department) filed an Answer to the Mandamus Action.             On
February 28, 2017, this Court entered an Order scheduling oral argument for
March 1, 2017 on the Mandamus Action. On March 1, 2017, the Philadelphia
Republican City Committee and duly-qualified electors of the 197th Legislative
District James Hines, Melinda Riggs, Troy Bouie and Diep Nguyen filed with this
Court a Petition to Intervene in the Mandamus Action (Petition). Argument in this
matter convened on said date. At the commencement of oral argument, the Court
asked Substitute Candidate and the Department if they objected to the Petition.
Both parties said they had no objection, and the Court granted the Petition.


                                        Background
               Section 629 of the Pennsylvania Election Code (Election Code),2 25
P.S. § 2779, authorized the Party to submit a nomination certificate to fill the 197 th
Legislative District seat left vacant when former State Representative Leslie
Acosta resigned. On January 27, 2017, the Party, by and through Groen and
Pellington, filed with the State Department a nomination certificate designating
Frederick Ramirez (Original Candidate) as the Party’s candidate in the March 21,
2017 special election for State Representative in the 197th Legislative District
(Nomination Certificate). On February 2, 2017, James Hines, Melinda Riggs, Troy

      2
          Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.


                                               2
Bouie and Diep Nguyen (collectively, Objectors) filed a petition to set aside the
Party’s Nomination Certificate (Objection Petition) as defective based upon
Original Candidate’s residency.      On February 3, 2017, this Court entered a
Scheduling and Case Management Order setting a hearing for February 8, 2017 on
the Objection Petition. The hearing in that matter convened on said date. Original
Candidate and Objectors were represented by counsel.
            On February 23, 2017, this Court recognized:

                [T]he provisions of the [] Election Code relating
                to the form of nominating petitions and the
                accompanying affidavits are not mere
                technicalities, but are necessary measures to
                prevent fraud and to preserve the integrity of the
                election process. The requirements of sworn
                affidavits in the [] Election Code are to insure the
                legitimacy of information crucial to this process.
                Thus, the policy of liberal reading of this statute
                cannot be distorted to emasculate those
                requirements necessary to assure the probity of
                the election process.
            In re Nomination Petitions of McIntyre, 778 A.2d 746,
            751 (Pa. Cmwlth.) (citations omitted), aff’d, 770 A.2d
            326 (Pa. 2001). Moreover, ‘a false affidavit must be [a]t
            least equated with the failure to execute the affidavit. . . .
            [T]he fact remains that when [an] affidavit [is] taken the
            facts sworn to [must be] true. [If they are not, s]uch a
            defect cannot be cured by subsequent conduct and the
            petition [is] therefore void and invalid.’            In re
            Nomination Petition of Cianfrani, 359 A.2d 383, 384 (Pa.
            1976). Accordingly, if Objectors prove that [Original]
            Candidate’s residency statement is intentionally false,
            the Party’s Nomination Certificate is invalid. See In
            re Nomination Petition of Hanssens, 821 A.2d 1247 (Pa.
            Cmwlth. 2003), as amended May 20, 2003.
In re Nomination Certificate of Ramirez (Pa. Cmwlth. No. 44 M.D. 2017, filed
February 23, 2017), slip op. at 4 (footnote omitted; emphasis added). The Court

                                          3
determined that “Objectors ha[d] met their burden of showing that [Original]
Candidate is not domiciled at 430 West Annsbury Street, but rather at 8875 Ridge
Avenue, and that “[Original Candidate] ha[d] not rebutted Objectors’ evidence by
proving that he resided at 430 West Annsbury Street since March 21, 2016.” Id.,
slip op. at 46, 49. Therefore, this Court held: “[B]ecause Objectors have proven
that [Original] Candidate’s residency statement is intentionally false, the Party’s
Nomination Certificate is invalid. See Hanssens.”         Ramirez, slip op. at 49
(emphasis added). Accordingly, this Court “ORDERED: [] The petition to set
aside [Original] Candidate’s Nomination Certificate is hereby GRANTED.” Id. at
Order.


                                   Discussion
            Initially,

            [t]he writ of mandamus exists to compel official
            performance of a ministerial act or mandatory duty.
            Mandamus cannot issue ‘to compel performance of a
            discretionary act or to govern the manner of performing
            [the] required act.’ Volunteer Firemen’s Relief Ass[’n] of
            the City of Reading v. Minehart . . . , 203 A.2d 476, 479
            ([Pa.] 1964).      This Court may issue a writ of
            mandamus where the petitioners have a clear legal
            right, the responding public official has a
            corresponding duty, and no other adequate and
            appropriate remedy at law exists.

Brown v. Levy, 73 A.3d 514, 516 n.2 (Pa. 2013) (citations omitted; emphasis
added).
            Section 634 of the Election Code provides:

            Substituted nominations for special elections



                                        4
               (a) Any vacancy happening or existing in any party
               nomination for a special election by reason of the
               death or withdrawal of any candidate, may be filled by
               a substituted nomination made by such committee as is
               authorized by the rules of the party to make nominations
               in the event of vacancies on the party ticket in the form
               prescribed by [S]ection 630 of this [Election Code, 25
               P.S. § 2780].
               (b) In case of the death or withdrawal of any candidate
               nominated by a political body for a special election, the
               committee named in the original nomination papers may
               nominate a substitute in his place by filing a substituted
               nomination certificate in the form and manner prescribed
               by [S]ection 980 of this [Election Code, 25 P.S. §
               2940]. In the case of a vacancy caused by the death of
               any candidate, said nomination certificate shall be
               accompanied by a death certificate properly certified:
               Provided, however, That no substitute nomination
               certificate shall nominate any person who has already
               been nominated by any political party or by any other
               political body for any office to be filled at the same
               special election.
               (c) Substituted nomination certificates to fill vacancies
               caused by the withdrawal of candidates nominated for
               a special election shall be filed with the officer or board
               with whom the original nomination certificates or papers
               were filed not later than seven (7) days after the last
               day for filing the original nomination certificates or
               papers.[3]
               (d) Substituted nomination certificates to fill vacancies
               caused by the death of candidates nominated for a special

        3
            According to the State Department’s Bureau of Commissions, Elections and
Legislation, “Calendar for the Special Election to be held March 21, 2017 [for] Representative in
the General Assembly for the 197th District in the County of Philadelphia,” the last day to file
nomination certificates was January 30, 2017, and the “[l]ast day to file substituted nomination
certificates [was] 7 days after the deadline for filing [nomination certificates] . . . February 6,
2017.” (Emphasis added).



                                                5
              election shall be filed in the office of the officer or board
              with whom the original nomination certificates or papers
              were filed at any time prior to the day in which the
              printing of ballots is started.

25 P.S. § 2784 (text emphasis added).               Accordingly, the last day to file a
substituted nomination certificate was February 6, 2017. Thus, as determined by
the State Department, the Party’s February 27, 2017 filing of the Substitute
Nomination Certificate was untimely.
                             Substitute Candidate’s Argument
              Substitute Candidate argues that Pennsylvania judicial decisions allow
candidates to be substituted beyond the statutory deadline where it is shown that
the late filing will not disrupt the election because the Election Code’s deadlines
for candidate withdrawal and substitution are directory, not mandatory. However,
the Pennsylvania Supreme Court expressly held: “[A]ll things being equal, the law
will be construed liberally in favor of the right to vote but, at the same time, we
cannot ignore the clear mandates of the Election Code.” In re Canvass of
Absentee Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d 1223, 1231 (Pa. 2004)
(emphasis added).
              Section 634 of the Election Code, upon which Substitute Candidate
relies, permits substitution in only two circumstances – death or withdrawal of
a candidate.4 Substitute Candidate has cited several cases in support of their

       4
         See Essler v. Davis, 419 A.2d 217 (Pa. Cmwlth. 1980), wherein this Court recognized
candidate substitution was permitted only for death or withdrawal by a candidate, and
Pennsylvania law does not provide for any other cause for the substituted filling of a vacancy.
The Essler Court relied on our Supreme Court’s opinion in Watson v. Witkin, 22 A.2d 17 (Pa.
1941), in which the Court stated: “The authorized party committee can make substituted
nominations only when the duly nominated candidate of the party dies or withdraws as a
candidate.” Id. at 21. Although Essler and Watson concerned candidate substitutions for
vacancies prior to the primary election and involved Section 979 of the Election Code, 25 P.S. §


                                               6
position; however, all are inapposite because, unlike in the instant action, they
involved a death or withdrawal by the candidate. In In re Substitution Nomination
for Office of County Commissioner of Allegheny County, 118 A.2d 750 (Pa. 1955),
substitution was permitted because the original candidate died.                        In In re
Substitution Nomination Certificate for the Office of Mayor of the City of Altoona,
196 A.2d 371 (Pa. 1963), the original candidate withdrew his name. In Perles v.
Hoffman, 213 A.2d 781 (Pa. 1965), the original candidate withdrew his name in
order to move with his ailing wife to a healthier climate. In In re Substitute
Nomination Certificate of Ross, 109 A.3d 781 (Pa. Cmwlth.), aff’d, 101 A.3d 1150
(Pa. 2014), the original candidate withdrew his name.
               Substitute Candidate does not assert in his Mandamus Action that
Original Candidate either died or withdrew his name from nomination – the only
two events for which a substitution may occur under the applicable Election Code
provision. Rather, the Mandamus Action correctly reflects that this Court set aside
the Party’s Nomination Certificate and, thus, ordered Original Candidate’s name
removed from the ballot. None of the Substitute Candidate’s above-cited cases
similarly involved a court ordering a party’s nomination certificate to be set aside
and consequently, the candidate’s name being removed from the ballot.
            Substitute Candidate asserted during oral argument that this Court’s
February 23, 2017 Order directing removal of Original Candidate’s name from the
ballot served as an “involuntary withdrawal.” Such is not the case. The Election



2939 (pertaining to candidate substitution filing date after primary elections) rather than Section
634 of the Election Code (pertaining to candidate substitution in special elections), the holdings
are instructive because candidate substitutions under Section 979 of the Election Code are
limited to the identical circumstances – candidate death or withdrawal.


                                                7
Code sets forth a detailed method establishing when and how a candidate may
withdraw his name from nomination. Section 633 of the Election Code states:

              Any person who has been nominated by any political
              party . . . for a special election as herein provided, may
              withdraw his name from nomination by a request in
              writing signed by him and acknowledged before an
              officer qualified and empowered to administer oaths,
              and filed in the office of the officer or board with
              whom the nomination certificate or nomination paper
              was filed within seven (7) days next succeeding the
              last day for filing nomination certificates or papers.
              Such withdrawals to be effective must be received at the
              office of the Secretary of the Commonwealth . . . , not
              later than five (5) o’clock P.M. on the last day for filing
              same. No name, so withdrawn, shall be printed on the
              ballot or ballot labels. No candidate may withdraw any
              withdrawal notice already received and filed, and thereby
              reinstate his nomination.

25 P.S. § 2783 (emphasis added). Original Candidate did not withdraw his name.
Rather, the Party’s Nomination Certificate was set aside. Under Section 632 of the
Election Code, 25 P.S. § 2782, when an objection to a nomination certificate in a
special election is filed, the Court is governed by Section 977 of the Election Code,
25 P.S. § 2937. Pursuant to Section 977 of the Election Code, if the Court finds a
defect under Section 976 of the Election Code, 25 P.S. § 2936 (examination of
nomination certificates), the nomination certificate shall be “set aside.” 25 P.S. §
2937. Thus, Original Candidate’s name was removed from the ballot because the
Party’s Nomination Certificate was set aside, not because Original Candidate
withdrew his name from nomination.5

       5
         Our Supreme Court and this Court have recognized the significant distinction between
a candidate who withdraws his name from nomination, and a candidate whose name is stricken
from the ballot. See In re Nomination Petitions of Benkoski, 943 A.2d 212 (Pa. 2007); Oliviero


                                              8
              Moreover, Substitute Candidate prefaced its Mandamus Action by
stating that the State Department denied them the right to place their candidate on
the ballot.    The State Department has not denied Substitute Candidate any
fundamental rights concerning the electoral process with regard to the special
election for State Representative in the 197th Legislative District. The Party was
aware when Objectors filed their Objection Petition on February 2, 2017, that the
Party’s Nomination Certificate was no longer deemed valid. See 25 P.S. § 2782.
Section 632 of the Election Code expressly provides, in relevant part:

              All certificates of nomination and nomination papers to
              fill a vacancy as herein provided, which have been
              accepted and filed shall be deemed to be valid, unless
              objections thereto are duly made in writing and filed
              in the court and with the officer or board with whom said
              nomination certificates or papers were filed[.]

25 P.S. § 2782 (emphasis added). The deadline for filing a substitute nomination
certificate was February 6, 2017. See 25 P.S. § 2784(c). The Party had options
available when Original Candidate’s nomination was challenged. For example, it
could allow Original Candidate to remain on the ballot or timely substitute
Substituted Candidate for Original Candidate. Notwithstanding its knowledge that
Original Candidate’s constitutional eligibility to serve as State Representative in
the 197th Legislative District was being challenged, the Party opted to continue to
put forth Original Candidate as its nominee and let the filing deadline for the
Substitute Nomination Certificate pass. Substitute Candidate cites no applicable
statute or judicial decision to allow the Court to remedy this decision.


v. Diven, 908 A.2d 933 (Pa. Cmwlth. 2006); Lachin v. Berks Cnty. Bd. of Elections, 887 A.2d
326 (Pa. Cmwlth.), aff’d, 884 A.2d 867 (Pa. 2005).



                                            9
                                     Conclusion
             The General Assembly in enacting the Election Code established an
orderly electoral process. See Costa v. Cortés, 143 A.3d 430 (Pa. Cmwlth. 2016).
Importantly, the Election Code does not provide for a substitute candidate under
the circumstances presented herein. “When the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa.C.S. § 1921(b).
             Substitute Candidate is seeking mandamus for which the law requires
there exist a clear legal right and a corresponding duty. Brown. “The purpose of
mandamus is not to establish legal rights, but to enforce those rights already
established beyond peradventure.” Byrd v. Pa. Bd. of Prob. & Parole, 826 A.2d
65, 67 (Pa. Cmwlth. 2003) (emphasis added) (quoting McGill v. Pa. Dep’t of
Health, Office of Drug & Alcohol Programs, 758 A.2d 268 (Pa. Cmwlth. 2000)).
The courts have no power to legislate; that authority is solely within the province
of the General Assembly. See Harris-Walsh, Inc. v. Dickson City, 216 A.2d 329
(Pa. 1966). Therefore, the Election Code which expressly provides only two
circumstances when a candidate substitution is permitted, neither of which are
applicable herein, cannot be rewritten by the Court to allow the Party to substitute
Substitute Candidate after the filing deadline solely because the Party’s Original
Candidate it nominated did not meet the constitutional residency requirements, and
its Nomination Certificate was set aside. Accordingly, there exists no basis upon
which the extraordinary remedy of mandamus may be granted in the instant case.




                                          10
                                  ORDER


           For all of the above reasons, the Court enters the following Order:

           AND NOW, this 3rd day of March, 2017, it is hereby Ordered that
Substitute Candidate’s Mandamus Action is DISMISSED.


                                       __________________________
                                       ANNE E. COVEY, Judge




                                       11
