                                   [J-61-2018]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


    WORKING FAMILIES PARTY,                     :   No. 34 EAP 2017
    CHRISTOPHER M. RABB, DOUGLAS B.             :
    BUCHHOLZ, AND KENNETH G. BEISER,            :   Appeal from The Order of
                                                :   Commonwealth Court entered on
                       Appellants               :   September 18, 2017 at No. 435 MD
                                                :   2016.
                                                :
                v.                              :   ARGUED: September 25, 2018
                                                :
                                                :
    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                :


                                         OPINION


JUSTICE MUNDY                                                   DECIDED: June 5, 2019


         In this direct appeal from an order of the Commonwealth Court, we are asked to

determine the constitutionality of provisions of the Election Code1 that prohibit fusion, the




1   Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
process by which two or more political organizations place the same candidate on the

ballot in a general election for the same office.

        In the April 26, 2016 primary election, Christopher M. Rabb (Rabb) secured the

nomination of the Democratic Party as its candidate for Representative of the General

Assembly’s 200th Legislative District. Between July 18 and July 26, 2016, the Working

Families Party (Working Families) circulated papers to also nominate Rabb as its

candidate for the same race. On July 27, 2016, Working Families submitted the following

documents to the office of Commissioner Jonathan M. Marks, Department of State,

Bureau of Commissions, Elections and Legislation: nomination papers with 958

signatures of registered voters in the 200th Legislative District, Rabb’s statement of

financial interests, the appropriate filing fee, and a candidate affidavit through which Rabb

struck the following language:

              [M]y name has not been presented as a candidate by
              nomination petitions for any public office to be voted for at the
              ensuing primary election, nor have I been nominated by any
              other nomination papers for any such office; that if I am a
              candidate for election at a general or municipal election I shall
              not be a registered and enrolled member of a political party at
              any time during the period of thirty (30) days prior to the
              primary up to and including the day of the following general or
              municipal election.


Petition for Review, 8/5/16, at ¶ 25. He also added the following italicized text to the

affidavit:
              I swear (or affirm) to the above parts as required by the laws
              applicable to the office I seek, having struck out certain parts
              based on my honest and sincere belief that they are violative
              of the Pennsylvania and U.S. [C]onstitutions.

Id.




                                       [J-61-2018] - 2
       The same day, Commissioner Marks issued a nomination paper rejection notice

stating that Rabb had altered the statutory candidate affidavit.       On July 29, 2016,

Commissioner Marks issued an amended rejection notice indicating:

               The candidate altered the form of the statutory candidate
               affidavit. Subsequent to the Bureau’s initial review, Bureau
               staff also noted during a review of its candidate list that the
               candidate’s name was already presented by nomination
               petitions in the General Primary, which precludes the
               candidate from seeking the nomination of a political body
               pursuant to 25 P.S. §2911(e)(5).2

Id. at ¶ 29.

       On August 5, 2016, Working Families, Rabb, and two unaffiliated registered voters

who reside in the 200th Legislative District, Douglas B. Buchholz and Kenneth G. Beiser,

(collectively “Appellants”) filed an action against the Commonwealth, the Secretary of the

Commonwealth Pedro A. Cortes and Commissioner Marks (hereinafter, the

Commonwealth), challenging the Commissioner’s rejection of Rabb’s nomination papers.

In Count I, they sought a declaratory judgment that Sections 634, 910, 951, 976, 979, 980

and 1406 of the Election Code, 25 P.S. §§ 2870, 2911, 2936, 2939, 2940, 2784, and

31563 violate various clauses of the federal and state constitutions. Id. at ¶¶ 34-40, 92-



2Section 951(e)(5) of the Election Code provides that the candidate shall append to each
nomination paper an affidavit stating “that his name has not been presented as a
candidate by nomination petitions for any public office to be voted for at the ensuing
primary election, nor has he been nominated by any other nomination papers filed for any
such office.” 25 P.S. § 2911(e).
3 Each of these sections effectively ensure that cross-nominations do not occur. Sections
634 and 910 of the Election Code, 25 P.S. §§ 2870 and 2911, require all candidates to
file an affidavit that they have not received any other nominations. Section 976 of the
Election Code, 25 P.S. § 2936 requires the Secretary of the Commonwealth to reject any
nomination petitions if the nominee in question has already been nominated by another
entity. Sections 979 and 980 of the Election Code, 25 P.S. §§ 2939 and 2940 prohibit



                                      [J-61-2018] - 3
94. In Count II, they sought a writ of mandamus directing the Commonwealth to accept

Rabb’s nomination papers and to prepare a general election ballot listing Rabb as both

the Democratic and Working Families candidate. Id. at 97-101.

       Because there were no disputed issues of fact, the court directed the parties to file

applications for summary relief.      Oral argument was held before a panel of the

Commonwealth Court, following which it denied Working Families’ request for summary

relief on Count II, having concluded that mandamus was an inappropriate means by which

to test the constitutionality of a statute. Accordingly, by order dated September 30, 2016,

it dismissed Count II of the petition for review. Argument on the parties’ applications for

summary relief on Count I (declaratory relief), was heard by the court en banc on February

8, 2017.    On September 18, 2017, the Commonwealth Court denied Appellants’

application for summary relief and granted the Commonwealth’s cross-application for

summary relief in a published opinion. Working Families Party et al. v. Commonwealth,

169 A.3d 1247 (Pa. Cmwlth. 2017) (en banc).

       The court began by observing that fusion was commonly permitted by many states,

including Pennsylvania, throughout the 19th and early 20th centuries. To counteract this,

the General Assembly enacted the Election Code, which included the challenged anti-

fusion statutes in order to remedy a practice known as “party-raiding,” which the court

defined as “the organized switching of blocks of voters from one party to another in order




any political entity, in the event of a vacancy on the ballot, from nominating any substitute
candidate who has already been nominated. Section 634 of the Election Code, 25 P.S.
§ 2784 imposes this same requirement for special elections. Section 1406 of the Election
Code, 25 P.S. § 3156, prohibits the aggregate tabulation of votes for the same candidate
who appears more than once on the same ballot for the same race.


                                      [J-61-2018] - 4
to manipulate the outcome of the other party’s primary election.” Working Families Party,

169 A.3d at 1251 (citation omitted).


       The Election Code divides political groups into two categories, political parties and

political bodies. A political party is a group “whose candidates at the general election next

preceding the primary polled in each of at least ten counties of the State not less than two

per centum of the largest entire vote cast in each of said counties for any elected

candidate, and polled a total vote in the State equal to at least two per centum of the

largest entire vote cast in the State for any elected candidate[.]” 25 P.S. § 2831(a). A

group that does not achieve this goal is labeled as a “political body.” Id. § 2831(c).     A

political body cannot use the primary process to nominate candidates, but instead does

so by collecting signatures. As noted above, Section 2911(e)(5) prohibits fusion by

requiring the candidate of a political body to affirm that he or she is not presented as a

candidate for another political body or party for that same election.4

       Appellants conceded that the challenged statutes prohibit fusion in state-level

races, but argued that a loophole exists based on this Court’s decision in Appeal of

Magazzu, 49 A.2d 411 (Pa. 1946). In the Appellants’ view, Magazzu permits political

parties to engage in fusion for state and federal legislative seats, but effectively bars

political bodies from doing so.

       In Magazzu, the appellee was a primary nominee for the Republican Party in a

state house race, but did not prevail. The only potential Democratic nominee for that race

was Milo Serfas. Magazzu, 49 A.2d at 412. When the primary votes were tallied on the

Democratic side, it was discovered “Magazzu’s name had been written or stamped upon

the voting machine paper ballot in sufficient numbers to cause Magazzu to receive a

4 As noted above, the Commonwealth Court pointed out that the Election Code also
prohibits political parties from engaging in fusion as well. See generally 25 P.S. §§ 2870,
2939.


                                       [J-61-2018] - 5
substantial majority of the Democratic votes.” Id. The Luzerne County Board of Elections

refused to certify Magazzu as the winner of the Democratic primary, but a judge of the

court of common pleas reversed. Upon further appeal by Serfas, this Court affirmed. We

began by noting that the Election Code contains many anti-party raiding or anti-fusion

provisions and they prohibit “a candidate to file petitions of more than one political party

for the same office and the printing of the name of a candidate of more than one political

party.” Id. However, this Court concluded that the same prohibition did not apply to write-

in votes, observing that “[n]owhere in the act, or its amendments, is there a prohibition

against a voter writing in or pasting in the name of a person for whom he desires to vote

if such name is not printed on the ballot of the political party of which the voter is a

member.” Id. Looking at other provisions of the Code, the Court observed that a write-in

vote was explicitly authorized. Id. Therefore, the Court viewed the votes as valid and not

barred by the anti-fusion provisions of the Code, and Magazzu was the proper winner of

the Democratic primary.

       Turning back to this case, the Commonwealth Court held that Magazzu did not

support Appellants’ position.    In the court’s view, “Magazzu stands for the simple

proposition that in a primary election, a voter may write in the name of any person not

printed on the ballot of the political party to which the voter belongs.” Working Families

Party, 169 A.3d at 1254-55 (internal quotation marks and citation omitted). The court

further observed that a political body may accomplish the same objective. Id. at 1255.

Therefore, the court disagreed that Magazzu had created a “loophole” in the anti-fusion

statutes.

       The court next turned to Appellants’ only federal constitutional challenge.

Appellants alleged that the anti-fusion statutes violate the Equal Protection Clause of the

Fourteenth Amendment insofar that they have a disparate impact on political bodies




                                      [J-61-2018] - 6
versus political parties. Specifically, Appellants averred that in practice, the statutes

impose a legal disability on political bodies by making it more difficult for them to fuse

their candidates. A major political party can nominate a candidate in a primary and then

simultaneously launch a write-in campaign for the other major party’s nomination. The

Commonwealth Court acknowledged that the process for political bodies was different.

To nominate its own candidate, a political body must file its nomination papers before

August 1, but to also have that same candidate appear on the ballot for a major party as

a write-in candidate, he or she must file the appropriate nomination papers before the

primary election, which is typically scheduled for the third Tuesday in May. Id. at 1255-

56; see also 25 P.S. § 2753(a).

       The court rejected the Appellants’ argument that the anti-fusion statutes create a

legislative classification implicating the fundamental right to vote, which in its view would

trigger strict scrutiny. Relying on this Court’s opinion in In re Street, 451 A.2d 427 (Pa.

1982),5 the court observed that the anti-fusion statutes as written were facially neutral and

did not create a legislative classification of any kind, since they applied to both political

parties and political bodies. Working Families Party, 169 A.3d at 1258.

       In Street, the appellant was a third-party candidate for a congressional race,

nominated by the self-titled “Milton Street Party.” Street, 451 A.2d at 427. Subsequent

to Street’s nomination, the Republican candidate who had won the primary withdrew from

the race. Id. Street sought to substitute his name for the withdrawn candidate on the

Republican ticket. Id. All parties acknowledged that this violated 25 P.S. § 2939 which,

as noted above, prohibits any political entity from filling a ballot vacancy with a substitute

candidate who has already been nominated by another entity. Id. at 428. However, Street


5Although Street bears the title “Opinion,” it is a plurality. Two Justices joined the opinion,
one Justice concurred in the result, and three Justices dissented.


                                       [J-61-2018] - 7
contended this violated the First Amendment and the Equal Protection Clause of the

Fourteenth Amendment. We held that the Election Code’s anti-fusion statutes were

facially neutral as written and that treating political parties and political bodies differently

did not amount to an equal protection violation. Id. at 431. Specifically, we observed that

“political parties and political bodies are treated equally: neither may nominate, either

initially or through substitution, a candidate for the general election who has already been

nominated by another political group.”          Id.   Although the Commonwealth Court

acknowledged that Street only discussed Section 2939, it viewed Street as dispositive of

Appellants’ equal protection claim as to all of the anti-fusion statutes. Working Families

Party, 169 A.3d at 1259.

       The court also rejected Appellants’ reliance on Reform Party of Allegheny Cnty. v.

Allegheny Cnty. Dep’t of Elections, 174 F.3d 305 (3d Cir. 1999), which concerned other

provisions of the Election Code allowing fusion by major political parties in local races but

explicitly prohibiting minor political parties from doing the same. The court reasoned that

the provisions at issue were not facially neutral, whereas the anti-fusion provisions at

issue in this case were facially neutral. Working Families Party, 169 A.3d at 1259. The

court also noted that the Third Circuit did not apply strict scrutiny, as Appellants argue

here, but rather applied intermediate scrutiny. Id. The court appeared to agree this was

the correct level of review, as it further concluded the Commonwealth provided a

justification for the burden that meets the intermediate standard of review applied in

Reform Party. Id. Based on these considerations, the Commonwealth Court concluded

Appellants’ equal protection issue lacked merit.




                                        [J-61-2018] - 8
       The court next turned to Appellants’ state constitutional claims, electing to first

address their free speech and association rights claims together.6               The court

acknowledged that these are fundamental rights and that our state charter may afford

greater protection than the First Amendment. Working Families Party, 169 A.3d at 1260.

However, the court criticized Appellants for not conducting an analysis pursuant to

Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), to explain why the state

constitution should grant higher speech and associational protections in this case.

Working Families Party, at 1262.7 Therefore, the court relied strictly on First Amendment

standards.

       The court then considered Street, in which this Court concluded that the First

Amendment does not prohibit the General Assembly from enacting anti-fusion statutes.

Specifically, we observed the following.

              While the right to associate for the advancement of political
              beliefs includes the right to advance a candidate who
              represents those interests, the ‘ballot access’ cases of the
              United States Supreme Court make it clear that the right of
              association does not encompass the right to nominate as a
              candidate a particular individual who fails to meet reasonable
              eligibility requirements.

6 The Free Speech Clause states that “[t]he free communication of thoughts and opinions
is one of the invaluable rights of man, and every citizen may freely speak, write and print
on any subject, being responsible for the abuse of that liberty.” PA. CONST. art. I, § 7, cl.
2. The Association Clause states “[t]he citizens have a right in a peaceable manner to
assemble together for their common good, and to apply to those invested with the powers
of government for redress of grievances or other proper purposes, by petition, address or
remonstrance.” Id. at art. I, § 20.
7 In Edmunds, we explained that where a party seeks to have this Court decide an issue
based on a provision of the Pennsylvania Constitution, “it is important that litigants brief
and analyze at least the following four factors: 1) the text of the Pennsylvania
constitutional provision; 2) history of the provision, including Pennsylvania case-law; 3)
related case-law from other states; 4) policy considerations, including unique issues of
state and local concern, and applicability within modern Pennsylvania jurisprudence.”
586 A.2d at 895.


                                      [J-61-2018] - 9
Street, 451 A.2d at 432.
       The court then noted that the decision of the Supreme Court of the United States

in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) was instructive. In

Timmons, the Court considered Minnesota’s anti-fusion statutes and whether they

violated the expressive associational rights protected by the First Amendment. The Court

held that while a political party has the right to select the candidate of its choice, “[t]hat a

particular individual may not appear on the ballot as a particular party’s candidate does

not severely burden that party’s associational rights.” Timmons, 520 U.S. at 359.

       With respect to the instant matter, the court held that the Commonwealth had

offered an important regulatory interest sufficient to justify the anti-fusion statutes.

Specifically, the Commonwealth Court posited that “[i]f fusion were permitted, Rabb’s

name, for example, would have appeared on the general election ballot with the

designation ‘Democratic Party/Working Families Party.’” Id. at 1263. The court continued

that Rabb “would not appear twice, i.e., once as a candidate of the Democratic Party and

again as a candidate of the Working Families Party.” Id. Because the Election Code

does not contain a mechanism for apportioning vote tallies, the court concluded that “it

would be impossible to determine whether the support for the candidate came from the

votes of the political party or from the political body.” Id. The Commonwealth Court

observed that “[t]he Election Code designates a political organization as either a political

party or a political body based on [the percentage of votes obtained] in the preceding

general election.” Id.; see also generally 25 P.S. § 2831. Therefore, the court noted the

importance of the Commonwealth’s ability to determine which candidates are supported

by how many voters.

       The court continued that the anti-fusion statutes also serve an important interest

of protecting the general election representation of third parties. The court posited that



                                       [J-61-2018] - 10
“[i]f fusion were permitted, members of a major political party could, during and after the

primary election, circulate nomination papers to name the major party’s nominated

candidate as the nominee of a political body without the consent of any members of the

political body.” Id. In the court’s view, because political parties have superior resources

and manpower, the parties could easily impersonate a political body and submit its

candidate under a third party’s name, just as long as the major party is the first to file its

papers with the Secretary of the Commonwealth. Id. at 1264. The court held this would

result in fewer candidates appearing on the ballot overall.           Id.   Based on these

considerations, the Commonwealth Court concluded the anti-fusion statutes did not

violate the speech or expressive association rights of the Pennsylvania Constitution.

       The Commonwealth Court next addressed Appellants’ argument under the Free

and Equal Elections Clause.8 The Appellants’ position was that “the anti-fusion provisions

of the Election Code deny voters the right to have their vote counted in a way that reflects

their true party preference.” Id. Stated another way, Appellants believed “that it is

imperative that representatives know the values of those who vote for them, and cross-

nomination enables some record of this by permitting members of political bodies to ‘vote

their values without wasting their votes.’” Id. The court observed that all voters have an

obvious right to cast their ballots and to have those ballots counted. However, the court

pointed out that in the general election for 2016, Rabb was indeed on the ballot for the

Democratic Party. Id. at 1265. Therefore, all members of Working Families Party who

voted in the 2016 election had the opportunity to vote for Rabb as their preferred

candidate for the state house.

8 The Free and Equal Elections Clause states, “[e]lections shall be free and equal; and
no power, civil or military, shall at any time interfere to prevent the free exercise of the
right of suffrage.” PA. CONST. art. I, § 5. The Commonwealth Court did not have the
benefit of our opinion in League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa.
2018) at the time of its decision.


                                      [J-61-2018] - 11
       Finally, the court rejected Appellants’ last contention that “the anti-fusion provisions

are a product of the major political parties’ effort to prevent the free exercise of the right

of suffrage.” Id. Appellants’ provided no evidence to support this notion and the court

observed “the ‘motive’ of an individual legislator voting on legislation is irrelevant to the

constitutionality of a collective work product.” Id. As it had addressed all of Appellants’

substantive arguments the court declined to further consider what it deemed to be

Appellants’ “bald assertions of legislative conspiracy.” Id. The Commonwealth Court

concluded none of Appellants’ claims had any merit. As a result, the court granted the

Commonwealth’s application for summary relief and denied Appellants’ application for

summary relief.

       Judge Cosgrove filed a dissenting opinion expressing his disagreement with the

majority’s treatment of Magazzu.        While recognizing that anti-fusion statutes are

constitutional, he asserted that “Magazzu makes an exception for candidates who are

nominated by the opposing party through the write-in process. As a result, . . . a major

party may, through the write-in process, nominate a candidate who has also filed petitions

seeking the nomination of the other major party.”         Id. at 1266.      Judge Cosgrove

concluded that the Majority’s observation that all parties may mount write-in campaigns

misses the point because “unlike the major parties, the minor parties/political bodies

cannot employ the nominating process to which they are relegated (i.e. collection of a

high number of signatures necessary to place their candidate on the general election

ballot) for a candidate who had also submitted nominating petitions for one of the major

parties during the primary.” Id. at 1267. Judge Cosgrove opined that this distinction

violates equal protection under the Fourteenth Amendment.

       The dissent also disagreed with the Majority’s conclusion that Reform Party was

inapposite because the statute in that case treated major and minor parties differently,




                                      [J-61-2018] - 12
while the statutes at issue in this matter were party neutral. In Judge Cosgrove’s view,

that “does not excuse the Election Code’s constitutional impairment vis-à-vis minor

political parties and political bodies since it was the disparate treatment of these

organizations as compared to major parties which Reform Party condemned.” Id. at 1267.



                                    Appeal to This Court

       On October 17, 2017, Appellants filed a notice of appeal to this Court from the

order of the Commonwealth Court dated September 18, 2017, denying Appellants’

application for summary relief and granting the Commonwealth’s cross-application for

summary relief. They filed a jurisdictional statement citing to Section 723(a) of the Judicial

Code, which provides, in relevant part, “[t]he Supreme Court shall have exclusive

jurisdiction of appeals from final orders of the Commonwealth Court entered in any matter

which was originally commenced in the Commonwealth Court.” 42 Pa.C.S. § 723(a). On

December 6, 2017, this Court issued an order noting probable jurisdiction and directing

Appellants to address whether the notice of appeal was timely pursuant to Pennsylvania

Rule of Appellate Procedure 903(c)(1)(ii), which provides, in relevant part, “(c)

Notwithstanding any other provision of this rule: (1) An appeal from any one of the

following orders shall be taken within ten days after the entry of the order from which the

appeal is taken: . . . (ii) an order in any matter arising under the Pennsylvania Election

Code.” Pa.R.A.P. 903(c)(1)(ii).

       Appellants note that Count 1 of their petition filed in the Commonwealth Court

sought a declaratory judgment that the fusion ban violates the Pennsylvania and United

States Constitutions. Appellants’ Brief at 57. Count II sought a writ of mandamus

directing the Commonwealth to accept Rabb’s nomination papers and to prepare a ballot

reflecting his nomination by both the Working Families Party and the Democratic Party.




                                      [J-61-2018] - 13
Id. The instant appeal is limited to the constitutional issues addressed in the declaratory

judgment action, and does not “arise under” the Election Code because it does not seek

the enforcement, interpretation or application of the Code. Rather, the issue is the

constitutionality of the Code. By way of comparison, where objections are filed to a

nomination petition or paper, the court must schedule a hearing no later than ten days

after the last day for filing the nomination petition or paper, and shall issue a final

determination no later than fifteen days after the last day for filing such petition or paper.

See Section 977 of the Election Code, 25 P.S. § 2937. Such an order is subject to the

ten-day appeal period of Rule 903(c)(1)(ii), which is consistent with the expedited process

for challenges under the Election Code.      Because the instant action sought as relief a

determination that the challenged sections of the Election Code were unconstitutional,

the thirty-day appeal period for a declaratory judgment matter is appropriate. Accordingly,

the instant appeal was timely filed.

                             Free and Equal Elections Clause

       As a preliminary matter, we note:

              It is axiomatic that: “[A]ny party challenging the
              constitutionality of a statute must meet a heavy burden, for we
              presume legislation to be constitutional absent a
              demonstration that the statute ‘clearly, palpably, and plainly’
              violates the Constitution.”       Konidaris v. Portnoff Law
              Associates, Ltd., 953 A.2d 1231, 1239 Pa. (2008) (citation
              omitted). The presumption that legislative enactments are
              constitutional is strong. Commonwealth v. McMullen, 961
              A.2d 842, 846 (2008); see also 1 Pa.C.S. § 1922(3) (in
              ascertaining intent of General Assembly in enactment of
              statute, presumption exists that General Assembly did not
              intend to violate federal and state constitutions). All doubts
              are to be resolved in favor of finding that the legislative
              enactment passes constitutional muster. Pennsylvanians
              Against Gambling Expansion Fund, Inc. v. Commonwealth, ,
              877 A.2d 383, 393 (2005). Moreover, “statutes are to be


                                       [J-61-2018] - 14
              construed whenever possible to uphold their constitutionality.”
              In re William L., 383 A.2d 1228, 1231 (1978).

DePaul v. Commonwealth, 969 A.2d 536, 545-46 (Pa. 2009).

       Appellants first assert in this Court that the ban on cross-nomination by political

bodies violates the Free and Equal Elections Clause of the Pennsylvania Constitution.

They note that in League of Women Voters, supra, this Court stated:

              The broad text of the first clause of this provision mandates
              clearly and unambiguously, and in the broadest possible
              terms, that all elections conducted in this Commonwealth
              must be “free and equal.” In accordance with the plain and
              expansive sweep of the words “free and equal,” we view them
              as indicative of the framers’ intent that all aspects of the
              electoral process, to the greatest degree possible, be kept
              open and unrestricted to the voters of our Commonwealth,
              and, also, conducted in a manner which guarantees, to the
              greatest degree possible, a voter’s right to equal participation
              in the electoral process for the selection of his or her
              representatives in government. Thus, Article I, Section 5
              guarantees our citizens an equal right, on par with every other
              citizen, to elect their representatives. Stated another way, the
              actual and plain language of Section 5 mandates that all
              voters have an equal opportunity to translate their votes into
              representation.


League of Women Voters, 178 A.3d at 804. Furthermore, “[t]he Free and Equal Elections

Clause was specifically intended to equalize the power of voters in our Commonwealth’s

elections process, and it explicitly confers this guarantee[.]” Id. at 812.

       Appellants note that since 2002, at least 101 candidates have received the

nomination of both major parties while during the same period, no political body or minor

party (PBMP) candidate has been cross-nominated with another PBMP or major party

candidate. Appellants’ Brief, at 24. They attribute this to the relatively straightforward

process for cross-nomination available to a major party candidate. For example, a



                                      [J-61-2018] - 15
Democratic candidate for the state legislature who appears on the ballot in the party’s

primary, can also encourage voters in the Republican primary to write in his name. If the

candidate wins both primaries, he will appear on the general election ballot as the

candidate of both parties, with votes cast on both lines counting toward the candidate’s

total against any third party challengers. In contrast, a PBMP that wants to cross-

nominate a major party candidate pursuant to Magazzu must follow a much more

complicated path.    Any major party candidate chosen by the PBMP would have to

renounce his party membership at least thirty days before the primary and agree not to

circulate nominating petitions during the petition circulation period. The chosen candidate

and the PBMP would then have to satisfy the signature requirements for nomination by a

PBMP in the ten weeks before the primary election. Once the nomination papers are

accepted by the Department of State, the PBMP would have to wage a write-in campaign

for the major party candidate who chose to forego participating in the major party‘s

primary by seeking the PBMP nomination. Id. at 25-26.

        While Appellants acknowledge that the anti-fusion statutes apply equally to major

party and PBMP candidates, they argue that in practice, combined with Magazzu, the

statutes work to the disadvantage of PBMP candidates. Id. at 27. They maintain that the

nomination process for candidates is an essential part of the electoral process, and

therefore must be “kept open and unrestricted to the voters of our Commonwealth.”

League of Women Voters, 178 A.3d at 804. Accordingly, the process must be “conducted

in a manner which guarantees, to the greatest degree possible, a voter’s right to equal

participation in the electoral process.” Id. Appellants argue that, “[w]hile a major political

party can choose as its nominee the candidate of another major political party, a PBMP

cannot do so.” Appellant’s Brief, at 28. This, they assert, is contrary to Article I, Section

5 because it deprives them of “an equal opportunity to translate their votes into



                                      [J-61-2018] - 16
representation.” League of Women Voters, 178 A.3d at 804. They further argue that the

limits on fusion entrench the power of the major political parties and dilute the votes of

members PBMPs. Appellants’ Brief at 28-29.

       Appellants also criticize the Commonwealth’s contention that the anti-fusion

statutes protect PBMPs from major political parties. Id. at 33. Rather, if a major political

party attempts to manipulate the nomination process by nominating its own candidate

under the name of a PBMP, the PBMP already has an existing remedy available in the

form of objections to nomination papers under Section 977 of the Code, 25 P.S. § 2937.

Id. at 35-36. Because the Code already provides this protection to PBMPs, the anti-fusion

provisions are not necessary to protect the interests of PBMPs.

       The Commonwealth counters that League of Women Voters is inapposite to this

case in several respects, notably because the anti-fusion provisions are neutral and did

not discriminate against the Working Families Party or its members’ right to vote.

Commonwealth’s Brief at 33. The Commonwealth emphasizes that Rabb was on the

ballot for any members of the Party who wished to vote for him, regardless of whether his

name appeared under the designation of the Democratic Party or another party.

Therefore, the Commonwealth argues that there is no vote dilution by operation of the

anti-fusion statutes. Relying primarily on Street, the Commonwealth emphasizes that the

anti-fusion statutes are themselves politically neutral on their face, applying equally to

major and third parties. Id. at 34. In the Commonwealth’s view, the Party was free to

endorse Rabb, campaign for him and contribute money to his candidacy. Id.
       The Commonwealth also characterizes Appellants’ heavy reliance on Magazzu as

a “red herring.” Id. at 35. In its words, “[t]he fact that this Court recognized a limited

judicial exception to the Legislature’s anti-fusion provisions in Magazzu simply does not

support the broader proposition that anti-fusion requirements violate the [Elections




                                     [J-61-2018] - 17
Clause] of the Pennsylvania Constitution in all cases.” Id. The Commonwealth posits

that if Appellants prevail, two things would occur. First, fusion “would make it impossible

to calculate the true number of votes for the Working Families Party, essentially rendering

meaningless the percentage-based vote-calculations set forth in 25 P.S. § 2831.” Id. at

38. The Commonwealth also argues that fusion would actually hurt third parties by

permitting the two major parties to obtain the ballot position of third parties by simply

circulating nominating petitions for its candidate under the banner of as many third parties

as it could. Id. at 39. The Commonwealth views this as permitting the major parties “to

‘squeeze out’ the candidates of minor political parties and political bodies[,] leaving voters

with even fewer candidates to choose from.” Id. at 40.

         In setting forth the history of the Free and Equal Elections Clause, this Court in

League of Women Voters cited Patterson v. Barlow, 60 Pa. 54 (1869), for the proposition

that “any legislative scheme which has the effect of impermissibly diluting the potency of

an individual’s vote for candidates for elective office relative to that of other voters will

violate the guarantee of “free and equal elections afforded by Article I, Section 5.” League

of Women Voters, 178 A.3d at 809. The Court also noted a case wherein we stated:

               [E]lections are free and equal within the meaning of the
               Constitution when they are public and open to all qualified
               electors alike; when every voter has the same right as every
               other voter; when each voter under the law has the right to
               cast his ballot and have it honestly counted; when the
               regulation of the right to exercise the franchise does not deny
               the franchise itself, or make it so difficult as to amount to a
               denial; and when no constitutional right of the qualified elector
               is subverted or denied him.
Id. at 810 (quoting Winston v. Moore, 91 A. 520, 523 (Pa. 1914)).

         The Court next discussed Shankey v. Staisey, 257 A.2d 897 (Pa. 1969), a case in

which:
               [A] group of third-party voters challenged a Pennsylvania
               election statute which specified that, in order for an


                                       [J-61-2018] - 18
              individual’s vote for a third-party candidate for a particular
              office in the primary election to be counted, the total number
              of aggregate votes by third-party voters for that office had to
              equal or exceed the number of signatures required on a
              nominating petition to be listed on the ballot as a candidate for
              that office.


Id., at 812. With respect to a challenge under the Free and Equal Elections Clause, the

Shankey Court stated:

              There seems no question as to ‘freedom’; each voter can vote
              for whomever he chooses. The complaint is as to ‘equality’ -
              that the statute wrongfully equates public petitions with secret
              ballots so as to deny the ballots of people who voted for
              [plaintiffs] the same weight as the ballots of people who voted
              for major party candidates. The statute, however, promotes
              ‘equal’ elections by requiring every candidate who desires to
              appear on the general electoral ballot to have satisfied the
              same condition - the show of support by a set number of
              people. This can be done by petition or by primary election
              victory, and what is important is not that ballots and petitions
              are equated but that the number of people behind each are
              equated. Any other system would create unequal elections
              by giving minority party candidates and their supporters the
              advantage of not having to secure the same showing of public
              support before being put on the ballot as required by a
              majority party candidate.


Shankey, 257 A.2d at 899.

       As this Court clearly articulated, “the overarching objective of [Article I, Section 5]

of our constitution is to prevent dilution of an individual’s vote by mandating that the power

of his or her vote in the selection of representatives be equalized to the greatest degree

possible with all other Pennsylvania citizens.” League of Women Voters, 178 A.3d at

817. Viewed from this perspective, Appellants have not established that their votes were

diluted by the ban against cross-nomination. Here, Appellants had the opportunity to

support and vote for the candidate of their choice in the 2016 general election. In no

sense were their votes diluted by the fact that Rabb appeared on the ballot only as the



                                      [J-61-2018] - 19
candidate of the Democratic Party. Here, Appellants had “the same right as every other

voter,” and thus the foundational principle underlying Article 1, Section 5 is not offended.

See Winston, 91 A. at 523.
       Appellants’ argument with respect to Magazzu does not warrant relief under the

Free and Equal Elections Clause. Magazzu stands for the unremarkable principle that a

successful write-in candidate may be declared the winner of a primary election. As

recognized by the Commonwealth Court, “[t]he potential for fusion by a successful write-

in campaign is not limited to major party candidates. The same may be accomplished by

a political body.” Working Families Party, 169 A.3d at 1265. Even in a situation where

one candidate appears on a ballot with two major party designations due to write-in votes

in a primary election, the Commonwealth Court correctly noted that voting rights in the

general election are not affected because “[a] voter supporting such a candidate is not in

a position superior to the voter casting his ballot for a candidate having a single political

designation. In such scenario the vote is counted once.” Id. at 1265.



                                      Equal Protection

       Appellants further assert that the fusion ban violates the Equal Protection Clause

of the Fourteenth Amendment to the United States Constitution. They aver that the

holding in Magazzu works in concert with the anti-fusion statutes to allow for cross-

nominations by major parties while effectively precluding PBMPs from doing the same in

light of the complicated path outlined above for PBMPs to fuse with major party

candidates in elections for legislative offices. Appellants’ Brief at 41.

       In Street, this Court held that the anti-fusion provision of Section 979 of the Election

Code that prohibits a political party from substituting a candidate with a person who has

already been nominated for the same office by a political party or political body does not




                                      [J-61-2018] - 20
offend equal protection. The Court further stated that “[u]nder Pennsylvania’s Election

Code . . ., political parties and political bodies are treated equally; neither may nominate,

either initially or through substitution, a candidate for the general election who has already

been nominated by another political group.” Street, 451 A.2d at 431. Accordingly, the

anti-fusion statutes are facially neutral.

       Appellants rely on Reform Party, where the Third Circuit Court of Appeals

considered a challenge to sections of the Election Code which prevented:

              minor political parties from cross-nominating a candidate for
              certain local offices when that candidate has already been
              nominated for the same office by another political party. The
              major parties, however, are allowed to engage in cross
              nomination or “fusion” for those local offices.          As a
              consequence, while Pennsylvania prohibits all parties from
              cross-nominating the same person for most state offices, it
              makes an exception for primary elections for five local offices,
              in which major parties are permitted to cross-nominate each
              other’s candidates, but minor parties are prohibited from so
              doing.


Reform Party, 174 F.3d at 308. The court determined that an intermediate level of

scrutiny was appropriate for the equal protection claim, requiring it “to weigh, against the

burdens imposed, any plausible justification the State has advanced for imposing unequal

burdens on major and minor parties.” Id. at 315. The court stated that the burden

imposed by the statutes was “exacerbated because Pennsylvania has allowed the major

parties to cross-nominate but has disallowed minor parties from doing the same.” Id.

Noting that while the Commonwealth’s reasons for supporting the statutes might justify a

general ban on cross-nomination, they were “not sufficiently weighty to justify a ban that

discriminates between major and minor parties.” Id. at 316. Accordingly, the Third Circuit

Court of Appeals held that the prohibition against fusion by minor parties in local races

violated the right to equal protection under the Fourteenth Amendment.



                                       [J-61-2018] - 21
       In the instant matter the Commonwealth has suggested justifications supporting

the ban on fusion. It asserts that permitting fusion would cause considerable difficulties

in the election administration process because a political organization’s status as a

political party is determined, in part, based on its performance in the preceding general

election. 25 P.S. § 2831. Accordingly, each organization’s status expires every two

years. A political organization whose candidate receives two percent of the total votes

cast for any candidate who is elected, both statewide and in at least ten counties,

becomes a statewide political party. Id. § 2381(a). A political organization may also attain

party status at the county level by having one of its candidates receive five percent of the

vote in a given county at either the preceding general or municipal election. Id. § 2831(b).

The anti-fusion statutes are relevant to these calculations. A candidate who is nominated

by multiple political organizations, and who receives more than two percent of the vote,

or five percent in a county, could raise all organizations he is associated with to political

party status. The reason this does not occur is because the anti-fusion provisions

establish a link between a vote for a candidate and a vote for the candidate’s political

party or body. See Commonwealth’s Application for Summary Relief, 9/7/16, Exhibit A,

Declaration of Jonathan Marks, 9/2/16, at 10-11.

       If fusion were permitted, Rabb’s name would appear once on the ballot next to the

party names “Democratic Party/Working Families Party;” it would not appear twice, once

next to Democratic Party and once next to Working Families Party.              Because no

procedure exists in the Election Code to disaggregate the votes received by Rabb in his

capacity as the Democratic Party nominee and as the Working Families Party nominee,

the Department would be unable to determine what proportion of the votes cast for Rabb

should be allocated when making the five percent calculation to qualify the Working

Families Party as a political party in Philadelphia County. Id. at 11-12.




                                      [J-61-2018] - 22
       The anti-fusion provisions of the Election Code are facially neutral as they apply

equally to political parties and political bodies. Magazzu also applies equally to political

parties and political bodies, allowing them to accomplish fusion through write-in votes.

We agree with the Commonwealth Court’s conclusion that “[t]he right to vote is not

impacted by the anti-fusion provisions of the Election Code.                   Citizens of the

Commonwealth are free to cast their vote for their candidate of choice, by write-in or

otherwise.” Working Families Party, 169 A.3d at 1259. Even if we were to determine that

the Election Code and Magazzu work in concert to create a disparate impact on political

bodies, the justification for the anti-fusion provisions raised by the Commonwealth is

substantially related to an important governmental interest and therefore survives

intermediate scrutiny.      See James v. Southeastern Pennsylvania Transportation

Authority, 477 A.2d 1302, 1307 (Pa. 1984).9



               Article I, Sections 7 and 20 of the Pennsylvania Constitution

       Appellants next raise claims under the Free Speech and Association Clauses of

the Pennsylvania Constitution. As noted above, the Free Speech Clause states that “[t]he

free communication of thoughts and opinions is one of the invaluable rights of man, and


9 We reject as speculative the Commonwealth’s argument that anti-fusion provisions
actually protect political bodies. They posit that during and after primary election
campaigns, a major party candidate backed by a strong organization could submit
nomination papers in the name of a political body without the consent of any of its
members. It notes that the Department accepts the first valid set of nomination papers
bearing the name of any political organization, and rejects any nomination papers
subsequently filed pursuant to Section 976, 25 P.S. § 2936 (No . . . nomination paper . .
. shall be permitted to be filed if . . . (g) . . . the appellation set forth therein is identical
with or deceptively similar to the words used by an existing party or by any political party
which has already filed nomination papers for the same office. . . . .). Thus, they assert
that the anti-fusion provisions prevent major parties from attempting to control the use of
the names of their competitors. See Commonwealth’s Application for Summary Relief,
9/7/16, Exhibit A, Declaration of Jonathan Marks, 9/2/16, at 8-9.


                                        [J-61-2018] - 23
every citizen may freely speak, write and print on any subject, being responsible for the

abuse of that liberty.” PA. CONST. art. I, § 7, cl. 2. The Association Clause states “[t]he

citizens have a right in a peaceable manner to assemble together for their common good,

and to apply to those invested with the powers of government for redress of grievances

or other proper purposes, by petition, address or remonstrance.” Id. at art. I, § 20.

       At the outset, Appellants criticize the Commonwealth Court for not appreciating

that they were asking for an independent state constitutional analysis. They acknowledge

that they did not label their analysis as consistent with the requirements of Edmunds, but

maintain they substantively “explore[d] the text of the Pennsylvania Constitution, its

history and Pennsylvania case law, case law from other jurisdictions, and policy

considerations.” Appellants’ Brief, at 45 n.11.       Based on our review of Appellant’s

Memorandum of Law in Support of Motion for Summary Relief filed in the Commonwealth

Court on September 2, 2016, we agree with Appellants that they properly preserved their

state constitutional claims.

       Noting that speech and association rights are at their core political rights,

Appellants observe that our courts have traditionally given these two clauses a broad

construction. Id. at 46-47 (collecting cases). Furthermore, Appellants note that this Court

has already held that at least in some areas, the Pennsylvania Constitution grants broader

protections of free expression than the First Amendment. Id. at 48-49 (citing Pap’s A.M.

v. City of Erie, 812 A.2d 591, 605-06 (Pa. 2002)). With regard to history, Appellants note

that Pennsylvania’s original 1776 Constitution was the first to explicitly have substantive

protections for freedom of speech and assembly. Id. at 49.

       Appellants maintain that the effect of anti-fusion statutes is to reduce third parties’

participation in the electoral process and “denied [them] the freedom to express its choice

of - and to associate with - the most attractive candidate willing to accept its nomination.”




                                      [J-61-2018] - 24
Id. at 50. Appellants assert that the anti-fusion statutes infringe on their associational and

expression rights because they legally forbid candidates from officially associating with a

third party if they have already been nominated by a major party through the primary

process. Id. Likewise, they maintain the statutes interfere with their ability to associate

with a broader range of voters. They note that the statutes also infringe on the rights of

the major parties as well, because the major parties are not permitted to officially agree

on a preferred candidate with a third party. Id. at 51.

       With respect to the protection for political expression and association, Appellants

rely on our decision in Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981) wherein this

Court explained:

              The “profound national commitment to the principle that
              debate on public issues should be uninhibited, robust, and
              wide-open,” New York Times v. Sullivan, 376 U.S. 254, 270,
              84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964), has special
              meaning for this Commonwealth, whose founder, William
              Penn, was prosecuted in England for the “crime” of preaching
              to an unlawful assembly and persecuted by the court for
              daring to proclaim his right to a trial by an uncoerced jury. It is
              small wonder, then, that the rights of freedom of speech,
              assembly, and petition have been guaranteed since the first
              Pennsylvania Constitution, not simply as restrictions on the
              powers of government, as found in the Federal Constitution,
              but as inherent and “invaluable” rights of man.

Id. at 1388. While Appellants cite to several cases in which Pennsylvania courts highlight

the importance of protecting speech and association, only one, DePaul, supra, relates

even tangentially to elections. In DePaul, this Court held that Section 1513 of the Race

Horse Development and Gaming Act, 4 Pa.C.S. §1513, which prohibited certain classes

of persons associated with licensed gaming in Pennsylvania from making political

contributions to candidates for public office in Pennsylvania, to any political party

committee in Pennsylvania or any group or association organized to support a candidate


                                      [J-61-2018] - 25
in Pennsylvania, violated Article I, Section 7 of our Constitution. In reaching its decision

the Court noted that “First Amendment authority remains instructive in construing Article

I, Section 7[.]” DePaul, 969 A.2d at 547. Recognizing this point, the Commonwealth

Court in the instant matter gave significant weight to Timmons, in which the New Party, a

minor political party, sought to nominate Andy Dawkins as a candidate for Minnesota state

representative. Dawkins had already filed to run as the candidate of a major political

party, and was running unopposed. Although he filed a candidate affidavit for the New

Party’s nomination, it was rejected by election officials because he had already filed as a

major party candidate. The New Party filed suit, asserting that the Minnesota election

laws prevented it from selecting and associating with its candidate of choice. The United

States Supreme Court noted:

              The New Party’s claim that it has the right to select its own
              candidate is uncontroversial, so far as it goes. . . . That is, the
              New Party, and not someone else, has the right to select the
              New Party’s standard bearer. It does not follow, though, that
              a party is absolutely entitled to have its nominee appear on
              the ballot as that party’s candidate. . . . That a particular
              individual may not appear on the ballot as a particular party’s
              candidate does not severely burden that party’s associational
              rights.


Timmons, 520 U.S. at 359 (internal citations omitted). The Court further explained:

              It is true the Minnesota’s fusion ban prevents the New Party
              from using the ballot to communicate to the public that it
              supports a particular candidate who is already another party’s
              candidate. . . . We are unpersuaded, however, by the party’s
              contention that it has a right to use the ballot itself to send a
              particularized message to its candidate and to the voters,
              about the nature of its support for the candidate. Ballots serve
              primarily to elect candidates, not as forums for political
              expression. . . . Like all parties in Minnesota, the New Party is
              able to use the ballot to communicate information about itself
              and its candidate to the voters, so long as that candidate is
              not already someone else’s candidate. The party retains


                                      [J-61-2018] - 26
              great latitude in its ability to communicate ideas to voters and
              candidates through its participation in the campaign, and party
              members may campaign for, endorse, and vote for their
              preferred candidate even if he is listed on the ballot as another
              party’s candidate. . . .
Id. at 362-63 (internal citations omitted).

       We reject Appellants’ argument that the protections afforded by the Pennsylvania

Constitution for speech and associational rights require a different result.            Here,

Appellants and like-minded members of the Working Families Party were able to meet

and decide that the candidate who best represented their values was Rabb. They then

had to opportunity to participate fully in the political process, culminating in casting their

votes for the candidate of their choice. Under these circumstances, their speech and

associational rights were not violated.

       Because Appellants have failed to establish that the challenged anti-fusion

provisions of the Election Code clearly, palpably and plainly violate the equal protection

clause of the United States Constitution or Article I, Sections 5, 7, and 20 of the

Pennsylvania Constitution, the order of the Commonwealth Court is affirmed.


Chief Justice Saylor and Justices Baer and Dougherty join the opinion.

Justice Todd files a concurring and dissenting opinion in which Justice Donohue joins.

Justice Wecht files a concurring and dissenting opinion in which Justice Donohue joins.




                                      [J-61-2018] - 27
