           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Nomination Petition of Joseph         :
Vodvarka as a Candidate of the               :
Democratic Party for the                     :
United States Senate in the                  :       No. 126 M.D. 2016
Primary Election of April 26, 2016           :       Submitted: March 18, 2016
                                             :
Petition of: Joseph A. Sestak, Jr.           :


BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION BY JUDGE BROBSON                     FILED: March 30, 2016



             Before this Court is a petition filed by Joseph A. Sestak, Jr. (Objector
or Sestak), to set aside the nomination petition of Joseph Vodvarka (Candidate or
Vodvarka) as a Democratic Party candidate for the United States Senate.
Candidate seeks to appear on the ballot in the primary election scheduled for
April 26, 2016. Objector contends that Candidate’s nomination petition lacks the
minimum number of valid signatures required by law to appear on the primary
election ballot. The parties have filed a Stipulation of Facts (Stipulation) and a
memorandum of law or brief in support of their respective positions.           Upon
consideration of the same, and for the reasons set forth below, we grant Objector’s
petition to set aside Candidate’s nomination petition.
               To appear on the primary election ballot as a candidate for the office
of United States Senator, Section 912.1(2) of the Pennsylvania Election Code
(Election Code)1 requires 2,000 valid signatures of registered electors who are
members of the party whose nomination is sought.                    Candidate filed with the
Department of State a nomination petition, consisting of 137 pages and purporting
to contain 2,744 signatures. Objector, in his petition to set aside, challenged
numerous individual signatures on Candidate’s nominating petition as invalid for a
variety of reasons. Pursuant to this Court’s scheduling and case management
order, the parties reviewed each and every challenged signature line and entered
into the Stipulation.
               The parties stipulated that, after striking certain signatures by
agreement, 2,186 signatures remain on the nomination petition.2 The parties also
stipulated, as follows:


       1
        Section 912.1(2) of the Act of June 3, 1937, P.L. 1333, added by the Act of
December 12, 1984, P.L. 968, as amended, 25 P.S. § 2872.1(2). Section 912.1(2) of the Election
Code provides:
              Candidates for nomination of offices as listed below shall present a
       nominating petition containing at least as many valid signatures of registered and
       enrolled members of the proper party as listed below:
               ....
               (2) United States Senate: Two thousand.
       2
          The parties stipulated that Candidate’s nomination petition, as originally filed, contains
a total of 2,744 signatures. (Stipulation filed March 11, 2016 (Stip.), ¶ 1.) They also stipulated
that 558 signatures are stricken by agreement of the parties, leaving 2,186 signatures remaining
on the nomination petition. (Stip. ¶¶ 2, 3.) They agree that if 187 or more of those remaining
signatures are stricken or rejected for any reason, Candidate’s nomination petition will not
contain a sufficient number of valid signatures to enable Candidate to qualify for the ballot.
(Stip. ¶ 3.)



                                                 2
         4.     Of the remaining 2,186 entries on the Vodvarka
         Nomination Petition, 461 entries contain a name and
         signature matching that of a[] person registered to vote in
         the county reflected on the Petition page containing the
         entry, but the address provided in the entry does not
         match the address on record in the SURE[3] system for
         the individual of that name. . . . [T]hese 461 entries . . .
         are generally referred to by the parties as the ‘NRA
         entries’ (“NRA” meaning Not Registered at the Address
         set forth on the Petition) . . . .

         5.     The treatment of the 461 NRA entries presents a
         common and singular question of law for the Court, and
         the Court’s determination of that question of law shall be
         determinative of the viability of every entry in the group.
         If the Court accepts Objector Sestak’s contention that the
         NRA entries are defective, then the Vodvarka
         Nomination Petition will not contain a sufficient number
         of valid signatures to enable Vodvarka to qualify for the
         ballot. In that event, the Vodvarka Nomination Petition
         shall be stricken and Vodvarka shall not appear on the
         ballot as a candidate for the nomination of the
         Democratic Party for US Senate in the upcoming Primary
         Election on April 26, 2016.

         6.     Of the remaining 2,186 entries on the Vodvarka
         Nomination Petition, 220 entries contain a name,
         signature, and street address matching that of an
         individual registered to vote in the county reflected on
         the Petition page containing the entry, but the place set
         forth in the ‘City, Boro or Twp.’ section of the entry does
         not match the political subdivision on record in the
         SURE system for the individual of that name and street
         address. . . . [T]hese 220 entries . . . are generally
         referred to by the parties as the ‘MUN entries’ (‘MUN’
         meaning the entry sets forth the wrong MUNicipality). . .
         .


3
    SURE is the acronym for the Statewide Uniform Registry of Electors.



                                         3
               7.     The treatment of the 220 MUN entries presents a
               common and singular question of law for the Court, and
               the Court’s determination of that question of law shall be
               determinative of the viability of every entry in the group.
               If the Court accepts Objector Sestak’s contention that the
               MUN entries are defective, then the Vodvarka
               Nomination Petition will not contain a sufficient number
               of valid signatures to enable Vodvarka to qualify for the
               ballot. In that event, the Vodvarka Nomination Petition
               must be stricken and Vodvarka shall not appear on the
               ballot as a candidate for the nomination of the
               Democratic Party for US Senate in the upcoming Primary
               Election on April 26, 2016.
(Stip. ¶¶ 4-7.)4 In order to dispose of the above-described objections, the parties
further stipulated to waive their right to an evidentiary hearing, agreeing instead to
have the legal issues submitted to the Court on briefs and without oral argument
for disposition on the stipulated facts. (Stip. ¶ 10.)
               The two legal issues for consideration by this Court are as follows:
(1) whether the NRA signatures must be stricken because the signer’s address does
not match the address listed in the voter registration records, even though the
parties agree that the signature on the nomination petition matches the signature on
the voter registration record;5 and (2) whether an elector’s signature may be

       4
          The parties also stipulated that other signatures were challenged based upon defective
circulator’s affidavits, but that Candidate could cure those defects by filing an affidavit with this
Court, which he did on March 14, 2016. Objector has now withdrawn the objections based on
defective circulator’s affidavits. (Objector’s Br. at 4 n.1.)
       5
          Candidate characterizes the issues somewhat differently—whether, under existing
federal and state law, registered voters remain registered voters “when they change their
residence within the county in which they are registered to vote without first updating their
address with the voter registration authorities.” (Candidate’s Br. at 8.) This phrasing appears to
presuppose that if the addresses are different but the signatures match, the elector must have
moved within the county. Such a presumption may not always be true, and we note that the
Stipulation does not indicate that the parties agree that the signers of the NRA entries actually
(Footnote continued on next page…)

                                                 4
stricken from a nomination petition when the elector uses the address set forth in
his voter registration record instead of setting forth his street address and
municipality.
             At the outset, we begin our analysis by noting that the Pennsylvania
Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591
(Election Code), is to “be liberally construed so as not to deprive an individual of
his right to run for office or the voters of their right to elect the candidate of their
choice.” In re Nomination Petition of Wesley, 640 A.2d 1247, 1249 (Pa. 1994). A
party alleging defects in a nomination petition has the burden of proving such
defects. In re Johnson, 502 A.2d 142, 146 (Pa. 1985). The placement of this
burden on an objector recognizes that there is a presumption that the signatures on
a petition are valid. In re Creighton, 899 A.2d 1166, 1168 (Pa. Cmwlth.) (Leavitt,
J.), aff’d per curiam, 896 A.2d 583 (Pa. 2006).
             Section 907 of the Election Code, 25 P.S. § 2867, provides, in part,
that persons who sign a nomination petition must be “duly registered and enrolled
members of” the same party as the candidate and be “qualified electors of the
State, or of the political district, as the case may be, within which the nomination is
to be made or election is to be held.” Section 908 of the Election Code, 25 P.S.
§ 2868, provides, in part, that a person signing a nomination petition
             shall add his residence, giving city, borough or township,
             with street and number, if any, and shall legibly print his
             name and add the date of signing, expressed in words or

(continued…)

moved within, let alone reside within, the county.   Rather, they essentially agree that the
addresses differ but the signatures match.



                                            5
              numbers: Provided, however, That if the said political
              district named in the petition lies wholly within any city,
              borough or township, or is coextensive with same, it shall
              not be necessary for any signer of a nomination petition
              to state therein the city, borough or township of his
              residence.

              With regard to the first legal issue, the parties’ positions may be
summarized as follows.              Objector contends that          absent extraordinary
circumstances, which Candidate must prove, the NRA entries must be stricken as
invalid. Objector relies on the Pennsylvania Supreme Court’s decisions in In re
Nomination Petition of Flaherty, 770 A.2d 327 (Pa. 2001), and In re Nomination
Papers of Nader, 858 A.2d 1167 (Pa. 2004), and this Court’s reported single-judge
opinion In re Nomination Petition of Vodvarka, 994 A.2d 25 (Pa. Cmwlth. 2010)
(Leavitt, J.).6,7 Candidate contends that if the elector’s signature on the nomination
petition matches a signature on the voter registration record, then that signature can
be counted as valid, provided that the elector is otherwise qualified,
notwithstanding the discrepancy in address. Candidate maintains that nothing in
the Election Code requires a signer to record on a nomination petition the address
at which he resided at the time that he executed his voter registration application.
It only requires that he write his current residence. Moreover, because he is
seeking to be placed on the ballot for a federal office, Candidate argues that the
National Voter Registration Act of 1993, 42 U.S.C. §§ 1973gg-1 to 1973gg-10,

       6
         Objector also notes that the Pennsylvania Supreme Court more recently referred to its
holding in Flaherty regarding signatures not matching a registered elector’s address in In re
Nomination Petition of Gales, 54 A.3d 855 (Pa. 2012).
       7
         As a reported, single-judge opinion in an election law matter filed prior to
October 1, 2013, Vodvarka has only persuasive value. Commonwealth Court Internal Operating
Procedure (IOP) 414(b), (d), 210 Pa. Code § 69.414(b), (d).



                                              6
transferred to 52 U.S.C. §§ 20501-20511 (NVRA), controls and limits the
circumstances under which a State may remove a registered voter from registration
rolls. Candidate cites the United States Court of Appeals for the Third Circuit
decision in Welker v. Clarke, 239 F.3d 596 (3d Cir. 2001), which upheld an
injunction against Pennsylvania election officials for enforcing provisions of the
Election Code that conflicted with the NVRA for federal elections. According to
Candidate, any continued reliance on Flaherty with regard to the issue now before
the Court is misplaced.
              Our analysis begins with Flaherty. In Flaherty, the Supreme Court
considered the question of whether signatures on a nomination petition must be
struck where the address provided by the signatory did not match that of any
person by that name in the voter registration records of the signatory’s county of
residence and determined such entries to be invalid. The Supreme Court held that
“absent extraordinary circumstances, electors who declare a residence at an address
different than the address listed on their voter registration card are not qualified
electors at the time they sign a nomination petition unless they have completed the
removal notice required by the [Pennsylvania] Voter Registration Act
[(PVRA)].[8]” Flaherty, 770 A.2d at 333. The Supreme Court in Flaherty reached
this conclusion after examining provisions of the Election Code, which the
legislature repealed the following year, relating to removal of electors from the
voter registration record of a county, observing:


       8
         Act of June 30, 1995, P.L. 170, as amended, 25 P.S. §§ 961.101-961.5109, repealed by
the Act of January 31, 2002, P.L. 18, and replaced by what is known as the new Pennsylvania
Voter Registration Act, 25 Pa. C.S. §§ 1101-3302.



                                             7
             A person is required to indicate, under penalty of perjury,
             his or her place of residence in order to register as an
             elector. 25 P.S. § 961.501. Furthermore, when electors
             move either within the same county or to another county
             within the Commonwealth, they must notify the
             registration commission of their new address by filing a
             removal notice generally no later than 30 days preceding
             an election. 25 P.S. §§ 961.901-961.902. Indeed, the
             registration commission must verify the residences of
             registered electors to insure that the qualified elector
             actually resides at the address listed on his voter
             registration card. 25 P.S. §§ 961.906-961.907[.]
Flaherty, 770 A.2d at 333.
             The Supreme Court in Flaherty also noted that both the Supreme
Court and the Commonwealth Court had issued decisions in which they concluded
that electors must notify authorities of a change in address in order to remain
qualified electors. See In re Nomination Petition of Wesley, 640 A.2d 1247, 1250
(Pa. 1994); In re City of Pittsburgh Home Rule Charter, 694 A.2d 1128, 1132 (Pa.
Cmwlth. 1997). Citing those cases and Section 908 of the Election Code, the
Supreme Court reasoned that “[w]here electors fail to properly notify authorities of
a change in address, those electors’ voter registrations are terminated and thus,
they are clearly disqualified from signing a nomination petition as a registered and
enrolled elector.”    Flaherty, 770 A.2d at 334.        Flaherty, thus, rejected the
reasoning set forth in this Court’s earlier conflicting decision in In re Nomination
Petition of Cooper, 643 A.2d 717 (Pa. Cmwlth. 1994), wherein we held that even if
an elector’s address is not identical to that found on the elector’s registration card,
the elector’s signature should not be struck absent an allegation that the elector
does not actually live at the address indicated on the petition.
             The Pennsylvania Supreme Court in Nader implicitly reaffirmed its
holding in Flaherty when it expressly rejected the candidate’s argument that the

                                           8
impact of such a ruling on a candidate for collecting signatures for nomination
papers for a national election was onerous or unduly burdened ballot access in
violation of the federal Voting Rights Act, 52 U.S.C. §§ 10101-10702, formerly set
forth at 42 U.S.C. § 1971 (Voting Rights Act).9 In so doing, our Supreme Court in
Nader observed that Flaherty did “not concern the right of an individual to vote.
Rather[, it] explain[s] the steps that a candidate must take in order to be properly
placed on a ballot.” Nader, 858 A.2d at 1183. For that reason, the Supreme Court
rejected the argument in Nader that application of Flaherty violated the Voting
Rights Act.
                 In Vodvarka,10 the Court, speaking through then-Judge Leavitt,11
noted that, “[i]n the past, a signature was not necessarily stricken from a
nomination petition where the elector declared a residence on the nomination
petition at an address different from that found in the voter registration records.”
Vodvarka, 994 A.2d at 28. Rather, “[t]he discrepancy could lead to a signature
strike . . . if the objector could show that the elector did not live at the residence

       9
         In support of the argument that the Supreme Court’s holding in Flaherty functioned to
unduly burden ballot access in violation of the Voting Rights Act, Nader relied upon the
following provision of the Voting Rights Act:
               No person acting under color of law shall deny the right of any individual
       to vote in any election because of an error or omission on any record or paper
       relating to any application, registration, or other act requisite to voting, if such
       error or omission is not material in determining whether such individual is
       qualified under State law to vote in such election . . . .
42 U.S.C. § 1971(a)(2)(B).
       10
         The parties are quite familiar with this Court’s decision in Vodvarka, because it
involved Objector’s challenge to Candidate’s nomination petition for this same office six years
ago.
       11
            Judge Leavitt assumed the role of President Judge on January 4, 2016.



                                                 9
declared on the petition or that the declared residence was not located in the
district.” Id. The law changed, however, with our Supreme Court’s ruling in
Flaherty that “absent extraordinary circumstances, electors who declare a
residence at an address different than the address listed on their voter registration
card are not qualified electors at the time they sign a nomination petition unless
they have completed the removal notice required by the [PVRA].” Id. at 28
(quoting Flaherty, 770 A.2d at 333 (emphasis added)). The Court summarized the
holding in Flaherty as requiring that “a signature from an elector whose declared
residence on the nomination petition differs from that on the voter registration
records must be stricken, unless the elector has completed a removal notice.” Id.
               The Court then examined the statutory provisions regarding the
removal notice referenced in Flaherty, observing that Section 1501(b)(2) of the
PVRA,12 25 Pa. C.S. § 1501(b)(2),


      12
           Section 1501(b)(2) of the PVRA, which became effective March 18, 2002, provides:
              (b) Use.--A registered elector who removes residence from one place to
      another within the same county must notify the commission by filing a removal
      notice under subsection (a) or a signed request for renewal that contains the
      information required in subsection (a) with the commission not later than the
      registration deadline before an election. . . . The following apply:
                ....
                        (2) A registered elector who removes residence from one place to
               another within the same county and who has not yet filed a removal notice
               with the commission shall be permitted to vote once at the elector’s former
               polling place following removal if, at the time of signing the voter’s
               certificate, the elector files with the judge of election a signed removal
               notice properly filled out. . . . A registered elector may vote in the election
               district of the elector’s former residence not more than one time following
               the elector’s removal.



                                                 10
             permits an elector who has moved to a new residence in
             the same county, but not yet filed a removal notice, to
             vote once at the elector’s former polling place. To vote,
             the elector must file the removal notice with the judge of
             election when he appears to vote at his former polling
             place.

Vodvarka, 994 A.2d at 28-29. The Court also noted that the PVRA also provides
procedures for striking names from the voter registration records to ‘protect the
integrity of the electoral process and to ensure the maintenance of accurate and
current registration records’” and requires the Secretary of State to “establish a
program to identify electors who have moved and notify those electors that their
addresses will be changed on the registration records.” Id. at 29 (quoting 25 Pa.
C.S. § 1901(a), (b)). County registration commissions are required to identify
electors who do not reside “at the registered address,” but the commissions will not
remove an elector “from the voter registration rolls until the county commission
follows the procedures in Section 1901(d) [of the PVRA] for culling the voter
registration records.” Id.
             The candidate in Vodvarka argued that “until an elector’s name is
removed from the county voter registration records in accordance with the
procedures set forth in Section 1901 [of the PVRA, 25 Pa. C.S. § 1901], that
elector remains a qualified elector and authorized to sign a nomination petition, so
long as he continues to reside in the same county.” Id. The Court, noting that “the
2002 codification of the PVRA did not effect a substantive change to the pre-
codified version of the statute in effect at the time Flaherty was decided” and that
this “Court is bound by the holdings of our Supreme Court, and those holdings
cannot be reconciled with [the c]andidate’s argument,” concluded that a definitive
rule was established in Nader. Id. at 30. The Court wrote:


                                        11
              Decided after the 2002 codification of the Voter
              Registration Act, Nader reaffirmed the principle
              announced in Flaherty that “absent extraordinary
              circumstances” a signature that declares a residence on
              the nomination petition that is different from that
              declared on the registration card must be stricken. The
              Supreme Court rejected the argument that this rule is
              overly burdensome to a candidate.
                     Central to the holding in Flaherty and in Nader is
              that an elector who declares residence “at an address
              different than the address listed on [his] voter registration
              card” is not a qualified elector unless he has first
              completed the removal notice. Flaherty, 770 A.2d at
              333. [The c]andidate discounts the need for a removal
              notice, arguing that so long as an elector has not been
              stricken from the registration rolls in accordance with
              Section 1901(d) [of the Voter Registration Act], he is a
              qualified elector. [The c]andidate gives no weight to
              Section 1501(b)(2), which forbids an elector from voting
              at his former polling place until he has first executed a
              removal notice and delivered it to the judge of elections.
              25 Pa. C.S. § 1501(b)(2) [of the Voter Registration Act].
              Stated otherwise, in [the c]andidate’s view, Section
              1901(d) eviscerates Section 1501(b)(2) of the Voter
              Registration Act.
Id. (footnote omitted).
             The Court noted and rejected the Third Circuit’s decision in Welker,
which concluded that Section 1901(d) of the PVRA and former Section 901 of the
PVRA (now Section 1501(b)(2) of the PVRA) conflicted with each other, and held
that Section 1901(d) trumped Section 1501(b)(2). Under Welker, “an elector who
has not been removed from the voter registration rolls can vote indefinitely at his
former polling place without executing the removal notice.” Vodvarka, 994 A.2d
at 31. The Court advanced several reasons for rejecting Welker:
             There are several reasons why the Court rejects the
             analysis in Welker. First, after Welker was decided, the
             legislature plainly, and unequivocally, limited the elector
             to one vote at his former polling place. 25 Pa. C.S.
                                          12
             § 1501(b)(2). Further, the elector cannot cast that single
             vote until he completes the removal notice. Second, the
             Third Circuit’s construction could lead to confusion in
             that two persons with different names could claim to
             reside at the same address. From confusion, it is a short
             step to election fraud, which the procedures in
             Section 1901 [of the PVRA] are designed to prevent.
             Third, our Supreme Court, which has the final word on
             the meaning of the [PVRA], has held twice, in Flaherty
             and in Nader, that absent extraordinary circumstances, an
             elector who has moved and not filled out the removal
             notice is not a qualified elector, and, thus, cannot sign a
             nomination petition, let alone vote.
                     In sum, the [PVRA] establishes more than one
             mechanism for correcting the address of an elector who
             moves within the county. The correction may be
             initiated by the Department of State or the county
             election commission in accordance with the procedures
             in Section 1901. The correction may be initiated by the
             elector who completes a removal notice either before the
             election or when he votes at his former polling place.
             Nothing, however, relieves the elector of the burden of
             executing a removal notice in accordance with 25 Pa.
             C.S. § 1501(b)(2) if he attempts to vote at his former
             polling place.
Id. at 31.
             The Court rejected the candidate’s contention that where the residence
declared on the nomination petition does not match the address in the voter
registration record a candidate may rehabilitate a signature by merely “persuading
the Court that there is a person with similar or identical handwriting who has not
been removed from the voter registration rolls[,]” because it would require
speculation, rather than evidence, that the elector “(1) had just moved when he
signed the nomination petition; (2) intends to vote in the next election at his former
polling place; and (3) will execute the removal notice at that time and place.” Id.
Rather, the Court in Vodvarka concluded that where the objector makes a prima

                                         13
facia case that a signature is invalid by establishing that the residence declared on
the nomination petition does not match the address in the voter registration record,
“it is the candidate’s burden to prove the extraordinary circumstances referred to
by our Supreme Court in Flaherty.”               Id.    Extraordinary circumstances could
include “the fact that the elector has recently moved and intends to execute the
removal notice at the old polling place at the next election” or that “[t]he elector
may be living temporarily at the residence shown on the nomination petition
because the residence listed at the address shown in the registration system has just
burned down.”         Id. at 32.       Other circumstances could also be considered
extraordinary, “[h]owever, a failure to complete a removal notice well over a year
after a move cannot, in itself, be considered an extraordinary circumstance.” Id.
               Two years later, this Court in In re Robertson (Pa. Cmwlth., No. 507
M.D. 2012, filed September 20, 2012)13 (an unreported memorandum opinion by a
three-judge panel), rev’d in part on other grounds, 55 A.3d 1044 (Pa. 2012) (per
curiam), considered the issue of “whether a signature of a registered voter whose
name appears as an eligible voter in the SURE system’s registration records is
invalid solely because the address at which the voter is registered is different from
the address within the same county that the voter wrote the [n]omination
[p]apers.”14 Robertson, slip op. at 13. The Court concluded “that because such


       13
          Robertson, as an unreported panel decision of this Court, has persuasive value, but it
does not constitute binding precedent. IOP 414(a), 210 Pa. Code § 69.414(a).
       14
          The parties in Robertson were directed to brief several issues, including “[w]hether the
National Voter Registration Act of 1993, 42 U.S.C. § 1973gg-6, and cases decided thereunder
require that registered voters may sign federal nomination papers for candidates for federal office
using an address that does not match the voters’ addresses in the registration records,” and
“[w]hether arguments related to the National Voter Registration Act of 1993, 42 U.S.C.
(Footnote continued on next page…)

                                               14
voters are, under the laws applicable to these [n]omination [p]apers, registered
voters eligible to vote in the November 2012 election, the mere fact that the
address does not match does not invalidate the signature.” Id.
               The Court in Robertson observed that the Supreme Court in Flaherty
“made clear that the sole basis for the invalidity of the signatures was that the
address discrepancy, absent a showing of extraordinary circumstances, prevented
the signer from being a registered voter eligible to vote in the election at issue.”
Id. at 15. The Court in Robertson, relying heavily on the Third Circuit’s decision
in Welker (which the Court found unpersuasive in Vodvarka), differentiated the
circumstances in the matter before it in Robertson from those in Flaherty, as
follows:
                      The voter registration laws applicable to this
               election are substantially different from the voter
               registration law provisions on which Flaherty was based.
               Unlike the state election at issue in Flaherty, elections for
               federal office are subject to the requirements of the
               National Voter Registration Act . . . (NVRA), 42 U.S.C.
               § 1973gg-6 [(now located at 52 U.S.C. § 20507)]. The
               NVRA expressly prohibits states from disqualifying
               voters merely because they moved within the county
               without updating their address with the board of
               elections, and requires that such voters be permitted to
               vote at their prior polling place without changing their
               registration address in advance of the election. 42 U.S.C.
               § 1973gg-6(e);[15] Welker v. Clarke, 239 F.3d 596,


(continued…)

§ 1973gg-6, apply to address the validity of signatures in support of non-federal state
candidates[.]” Robertson, slip op. at 4-5.
      15
           Section 1973gg-6(e) [of the NVRA] provides that:
(Footnote continued on next page…)

                                              15
                598-99 (3d Cir. 2001). The NVRA also expressly
                prohibits states from terminating voters’ registrations and
                removing voters from the rolls for federal elections
                simply because the voter has moved within the county
                without changing his or her address.            42 U.S.C.
                § 1973gg-6(d), (f);[16] Welker, 239 F.3d at 598-99.
                Voters can be removed from the rolls based on a change
                of address within the same county only if the voter is first
                given notice and both fails to respond to the notice and


(continued…)

               (2)(A) A registrant who has moved from an address in the area covered by
       one polling place to an address in an area covered by a second polling place
       within the same registrar’s jurisdiction and the same congressional district and
       who has failed to notify the registrar of the change of address prior to the date of
       an election, at the option of the registrant—
                        (i) shall be permitted to correct the voting records and vote at the
                registrant’s former polling place, upon oral or written affirmation by the
                registrant of the new address before an election official at that polling
                place.
42 U.S.C. § 1973gg-6(e) (emphasis added [in Robertson]).
       16
            Section 1973gg-6(d) [of the NVRA] provides that:
               (1) A State shall not remove the name of a registrant from the official list
       of eligible voters in elections for Federal office on the ground that the registrant
       has changed residence unless the registrant--
               (A) confirms in writing that the registrant has changed residence to a place
       outside the registrar’s jurisdiction [the county] in which the registrant is
       registered; or
                (B)(i) has failed to respond to a notice described in paragraph (2); and
                (ii) has not voted or appeared to vote (and, if necessary, correct the
                registrar’s record of the registrant’s address) in an election during the
                period beginning on the date of the notice and ending on the day after the
                date of the second general election for Federal office that occurs after the
                date of the notice.
42 U.S.C. § 1973gg-6(d) (emphasis added [to Robertson])[(alteration in Robertson)].



                                                16
              fails to vote in at least two federal general elections.
              42 U.S.C. § 1973gg-6(d).

Id. at 15-16 (emphasis added) (footnotes in original but renumbered here). The
Court then quoted the following passage from Welker:
                      One of the NVRA’s central purposes was . . . to
              ensure that, once registered, voters could not be removed
              from the registration rolls . . . because they had changed
              addresses. To achieve this purpose, the NVRA strictly
              limited removal of voters based on change of address
              . . . . The NVRA went even further by also requiring the
              implementation of ‘fail-safe’ voting procedures to ensure
              voters would not be removed from registration rolls due
              to . . . the voter’s own failure to re-register at a new
              address.

Robertson, slip op. at 17 (quoting Welker, 239 F.3d at 598-99 (citations omitted)).
Based upon this reasoning, the Court in Robertson concluded that “[a] registered
voter who has moved within the same county without changing his address is
therefore legally eligible to vote in federal elections under the NVRA.”         Id.
(emphasis added).
              The Court in Robertson noted that federal election law preempts state
election laws, see Kuznik v. Westmoreland County Board of Commissioners,
902 A.2d 476, 495-504 (Pa. 2006), and that federal courts had declared the
restriction
              in Flaherty that ‘[g]enerally, voters who move within a
              county are not allowed to vote on the day of election
              unless they have re-registered or filed a removal notice
              with the registrar regarding the change thirty days before
              the election,’ was . . . in violation of the NVRA and
              invalid for federal elections.

Robertson, slip op. at 17-18 (quoting ACORN v. Ridge, Nos. 94-CV-382, 95-CV-
382 (E.D. Pa. Mar. 30, 1995), slip op. at 5, 9; citing Welker, 239 F.3d at 599). The


                                         17
Court then stated “[w]here, as here, a federal court has entered a judgment that a
specific provision of our election laws is illegal under federal law, our Court, as a
matter of comity, must follow that federal ruling.” Id. at 18 (citing In re Stevenson,
40 A.3d 1212, 1222-26 (Pa. 2012)). The Court then held:
             Because signers of the [n]omination [p]apers who are
             registered to vote at a different address from their current
             residence within the same county are therefore registered,
             enrolled voters legally entitled to vote in the November
             federal elections, they are ‘qualified electors’ with
             respect to the federal [c]andidates and the non-matching
             address does not invalidate their signatures.

Id.
             The Court then extended the holding to elections for state candidates
when it opined:
                    While the NVRA applies only to federal elections,
             the result is the same with respect to state candidates. In
             2002, after Flaherty was decided, the General Assembly
             repealed the statute on which Flaherty was based and
             enacted a new Voter Registration Act (the 2002 Act [or
             PVRA]), 25 Pa. C.S. §§ 1101-3302. Under the 2002 Act,
             a voter who has moved within the same county is entitled
             to vote in one election at his old polling place, regardless
             of when he moved. 25 Pa. C.S. § 1501(b)(2). In
             addition, the 2002 Act provides that a voter’s registration
             cannot be canceled simply because the voter moved
             without changing his registration address, and a voter
             cannot be removed from the rolls based on a move within
             the same county unless the specific requirements of the
             NVRA are met (failure to respond [to] notice and failure
             to vote in two federal elections). 25 Pa. C.S. § 1901(a),
             (d). Thus, Pennsylvania’s current voter registration laws
             are substantially different from the automatic termination
             of registration and termination of eligibility on which
             Flaherty was based. The current laws, like the NVRA,
             treat changes of address within the same county as not
             impairing the voter’s eligibility. Moreover, to the extent
             that there are differences between the 2002 Act and the
                                         18
            NVRA, our Supreme Court made clear in 2006 that
            Pennsylvania’s Election Code provides a unitary election
            system for federal and state offices and that procedures
            for voting in state elections are to conform to federal
            requirements in order to prevent separate federal and
            state voting systems. Kuznik, . . . 902 A.2d at 490-92.
                    Accordingly, under the present Pennsylvania voter
            registration laws, enacted after Flaherty, and under our
            Supreme Court’s more recent admonition to interpret
            state voting systems to conform to federal law,
            differences in address within the same county ‘do not
            prevent the signers from voting at their former polling
            places’ and ‘have no legal effect on the signers’ status as
            a qualified and registered elector’ in state elections. In re
            Nomination Petition of Brown, 846 A.2d 783, 787 (Pa.
            Cmwlth. 2004). Because such address differences do not
            alter the signers’ status as ‘qualified electors,’ these
            non-matching addresses do not invalidate their signatures
            . . . . In re Nomination Petition of Payton, 945 A.2d 279,
            286 n.3 (Pa. Cmwlth. . . . ), aff’d per curiam, . . .
            945 A.2d 162 ([Pa.] 2008) (abrogated in part on other
            issue by Stevenson); Brown, 846 A.2d at 787.

Id. at 18-20 (emphasis added) (footnote omitted).
            Responding to the objector’s contention that Flaherty and Nader
required a different outcome, the Court in Robertson opined that neither Flaherty
nor Nader disposed of the specific issue before the Court in Robertson. Although
the NVRA was in effect when Flaherty was decided, Flaherty did not involve a
federal election and the opinion did not consider the NVRA. Moreover, although
the Supreme Court in Nader and the Commonwealth Court in In re Nomination
Paper of Rogers, 914 A.2d 457 (Pa. Cmwlth.), aff’d per curiam, 907 A.2d 503 (Pa.
2006), applied Flaherty to invalidate signatures on nomination papers for federal
elections after the 2002 change in Pennsylvania’s voter registration statutes, those
decisions did not consider “the fact that voters who moved within the county
without changing their address were eligible to vote under the NVRA and the 2002

                                         19
Act and whether the basis on which Flaherty struck those signatures was
permissible under federal law.” Id. at 21-22. The Court further explained:
                       The only federal voter registration law before the
                Supreme Court in Nader was a different statute,
                42 U.S.C. § 1971(a)(2)(B), which does not involve the
                effect of a move within the county on a voter’s
                registration. [Nader,] 858 A.2d at 1183. Nowhere in its
                opinion in Nader did the Court discuss the section of the
                NVRA at issue here, 42 U.S.C. § 1973gg-6, the 2002 Act
                or the effect of those laws on Flaherty. [Id.] at 1183-84.
                Indeed, the argument before the Court in Nader was not
                whether Flaherty’s non-matching address rule was valid
                given the effect of the NVRA and the 2002 Act, but
                whether ‘the impact’ of Flaherty and other decisions ‘on
                collecting signatures for [n]omination [p]apers for a
                national election is onerous,’ given the large number of
                signatures required by Section 951 of the Election Code.
                [Id.] at 1183. Moreover, Nader is not the last word from
                our Supreme Court on the effect of federal law on the
                interpretation and enforcement of Pennsylvania’s election
                laws. Subsequent to Nader, our Supreme Court held in
                Kuznik that federal election law must be followed, even
                where it conflicts with express state constitutional
                provisions. [Kuznik,] 902 A.2d at 495-504. In addition,
                just this year, our Supreme Court held in Stevenson that
                where a federal court has struck down a provision of our
                Election Code, that decision is to be followed, rather than
                our prior rulings. Stevenson, 40 A.3d at 1222-26.
                       Neither of this Court’s single-judge decisions in
                Rogers considered the NVRA at all or the fact that under
                the 2002 Act, a move without changing registration
                address does not disqualify a registered voter from voting
                or terminate his registration. Rather, these decisions
                simply assumed that the voter registration laws were the
                same as the law on which Flaherty was based and that
                Flaherty was still good law applicable to that election.
                Rogers, 914 A.2d at 465-66 & n.13; [In re Nomination
                Papers of Rogers, 908 A.2d 942, 945 (Pa. Cmwlth. 2006)
                (abrogated in part by Stevenson)].
Id. at 22-23.

                                            20
             The Court in Robertson then rejected the Court’s prior reasoning in
Vodvarka as not persuasive. First, the Court reasoned that Vodvarka improperly
switched the burden to the candidate to prove validity when a signer moves, rather
than the burden staying with the objector to show that a signature is invalid.
Second, the Court disagreed:
             that finding a signer with a non-matching address to be
             an eligible voter would require ‘speculation that the
             elector . . . (1) had just moved when he signed the
             nomination petition; (2) intends to vote in the next
             election at his former polling place; and (3) will execute
             the removal notice at that time and place,’

because those requirements are not relevant under Robertson’s analysis of the
NVRA and the 2002 Voter Registration Act. Id. at 24 (citing Vodvarka, 994 A.2d
at 31). Furthermore, invalidating a signature based on the possibility that a voter
could be removed from the rolls in the future “is inconsistent with the Supreme
Court’s holding in [In re] Johnson[, 502 A.2d 142 (Pa. 1985),] that it is the signer’s
status on the voter registration rolls when a nomination petition is signed and filed
that determines the validity of the signature.” Id. at 24.
             The Court in Robertson, addressing the concept of comity, wrote:
                    Furthermore, the Vodvarka [C]ourt based its
             conclusion on the rejection of the federal court[’s]
             Welker decision, which interpreted Pennsylvania’s voter
             registration law to conform to the requirements of the
             NVRA. Vodvarka, 994 A.2d at 30-31. While the [C]ourt
             correctly noted that federal court decisions are ordinarily
             not binding precedent, we believe that our Supreme
             Court’s decisions in Kuznik and Stevenson mandate that
             this Court follow Welker and the federal district court
             ruling in ACORN v. Ridge declaring illegal the
             termination of voter registration for failure to file a
             change of address.


                                          21
Id. The Court in Robertson also disagreed with the conclusion in Vodvarka that
striking the signatures of electors with non-matching addresses prevents or reduces
election fraud. Id. at 24-29.
                Objector, characterizing Robertson as against the considerable
authority of this Court, counters by asking the Court to adopt the reasoning set
forth in Judge Covey’s dissent in Robertson. Judge Covey’s dissent disagreed with
the majority’s conclusion that federal election law preempts state election law with
regard to the issue now before this Court.
                Judge Covey’s dissent in Robertson persuasively rejected the
majority’s proposition that the federal preemption analysis applied by our Supreme
Court in Kuznik mandated that we conclude that the requirements of the NVRA
preempted the requirements of the PVRA with regard to the requirements for valid
signatures on a nomination petition.            The Robertson dissent noted that Kuznik
involved the Help America Vote Act (HAVA), 52 U.S.C. §§ 20901-21145;17
Article VII, Section 6 the Pennsylvania Constitution, relating to the use of voting
machines; and Section 1104-A of the Election Code,18 relating to the installation of
electronic voting systems. Our Supreme Court in Kuznik concluded that HAVA
preempted the state laws, because it found that the state laws were an obstacle to
the HAVA goals. Of significance to the Robertson dissent was the fact that both
statutes in Kuznik—the HAVA and the PVRA—“involve the fundamental right to
vote.” Robertson (dissent), slip op. at 3 (citing Kuznik, 902 A.2d at 488.) The


      17
         HAVA’s provisions were transferred from 42 U.S.C. §§ 15301-15545 to 52 U.S.C.
§§ 20901-21145.
      18
           Added by the Act of July 11, 1980, P.L. 600, 25 P.S. § 3031.4(a).



                                                22
Robertson dissent noted that Robertson, however, did not concern the right to vote.
Rather, the matter involved solely the right to sign nomination papers, and
“[r]equiring a signer of a [n]omination [p]aper to validate that he or she is in fact a
qualified elector when the address he or she affixes to a [n]omination [p]aper does
not match his or her address in the SURE system, in no way effects that
individual’s right to vote.” Id. (emphasis added). The Robertson dissent observed
that
             concepts of federalism and state sovereignty make clear
             that in discerning whether Congress intended to preempt
             state law, there is a presumption against preemption.
             Specifically, the United States Supreme Court has stated
             that “it will not be presumed that a federal statute was
             intended to supersede the exercise of the power of the
             state unless there is a clear manifestation of intention to
             do so.” Stated another way, a cornerstone of the United
             States Supreme Court’s preemption jurisdiction is that,
             “[i]n all pre-emption cases, and particularly in those in
             which Congress has ‘legislated . . . in a field which the
             States have traditionally occupied,’ . . . we ‘start with the
             assumption that the historic police powers of the States
             were not to be superseded by the Federal Act unless that
             was the clear and manifest purpose of Congress.’”

Id. at 4-5 (alterations in original) (citations omitted) (quoting Dooner v. DiDonato,
971 A.2d 1187, 1193 (Pa. 2009)).
             The Robertson dissent, citing Orson, Inc. v. Miramax Film
Corporation, 189 F.3d 377, 381 (3d Cir. 1999), and Dooner, then examined the
three ways in which federal law may preempt state law, which have been described
as express preemption, field or implied preemption, and conflict preemption. The
dissent opined that
             the NVRA makes absolutely no reference to
             [n]omination [p]apers or a mechanism of placing an
             individual’s name on an election ballot. Because there is

                                          23
                no explicit statutory language in the NVRA indicating
                that state law is to be displaced, and the NVRA does not
                expressly preempt the definition of a ‘qualified elector’
                for the purpose of being eligible to sign a [n]omination
                [p]aper, the state’s definition of ‘qualified elector’ cannot
                be displaced on the basis of express preemption.
                ....
                [Moreover, t]he NVRA specifically provides:
                ‘notwithstanding any other Federal or State law, in
                addition to any other method of voter registration
                provided for under state law, each State shall establish
                procedures to register to vote in elections for Federal
                office . . . .’ 42 U.S.C. § 1973gg-2(a) (emphasis added).
                Thus, the NVRA was not intended to preempt the PVRA
                provisions relating to a registered elector or the Election
                Code regarding a qualified elector for federal elections.
                In addition, the NVRA makes absolutely no reference to
                [n]omination [p]apers or a mechanism of placing an
                individual’s name on an election ballot. Because the
                NVRA did not so thoroughly occupy the field as to leave
                no room for the states regarding the definition of a
                ‘qualified elector’ for the purpose of being eligible to
                sign a [n]omination [p]aper, there is no field preemption.
                ....
                In the instant case, there is no conflict between the
                federal law and the state law.

Id. at 5-6 (seventh alteration in original).
                Focusing on the Election Code’s provisions regarding qualified
electors,19 the Robertson dissent concluded that no conflict existed between the
NVRA and PVRA.              The Robertson dissent also opined that the majority in
Robertson improperly focused on removal from the voting roll, when the real issue
is whether a registrant is permitted to vote. Both the NVRA and the PVRA permit

      19
           See Sections 102(t) and 951(c) of the Election Code, 25 P.S. §§ 2602(t), 2911(c).



                                                24
a registrant who has moved and not officially changed his address in the voter
registration record to vote upon an affirmation of his new address. See 52 U.S.C.
§ 20507(e); Section 1501(b) of the PVRA, 25 Pa. C.S. § 1501(b). Thus, no
conflict existed between the two statutes.
             The Robertson dissent summarized the essence of its position, as
follows:
             It is important to be clear that this case does not in any
             manner concern the removal of a registrant from the
             voter rolls. The issue is who has the right to sign a
             [n]omination [p]aper, which is defined as one who has
             the right to vote. Both federal and state laws mandate
             that the right to vote has corresponding duties which
             includes among them the proactive step of ensuring the
             accuracy of one’s residence. Where a registrant has a
             change of address and he or she has not affirmed or
             confirmed his or her new residence at the time of
             election, he or she has chosen not to use his or her right
             to vote, thus, eliminating his or her status as a qualified
             elector. An individual who is not qualified to vote in a
             current election is not qualified to sign a [n]omination
             [p]aper in that same election.

Robertson (dissent), slip op. at 10-11.
             We now resolve the conflict between the Court’s reported
single-judge opinion in Vodvarka and our unreported panel decision in Robertson
in favor of the analysis set forth in Vodvarka for two reasons.
             First, the Robertson dissent sets forth a well-reasoned analysis
establishing that Robertson’s reliance on Kuznik, in particular, and the concept
preemption, in general, to preempt the Supreme Court’s holding in Flaherty is




                                          25
misplaced.20 Thus, we conclude that the Supreme Court’s analysis in Flaherty is
not preempted by federal law.
               Second, while the majority decision in Robertson is thoughtful, it
digresses from the clear and explicit holdings of our Supreme Court in Flaherty,
which the Supreme Court reaffirmed in Nader and continues to reaffirm, that
“absent extraordinary circumstances, electors who declare a residence at an address
different than the address listed on their voter registration card are not qualified
electors at the time they sign a nomination petition unless they have completed the
removal notice required by the [PVRA].” Flaherty, 770 A.2d at 333. We are
mindful that our Supreme Court has steadfastly continued to apply the holding in
Flaherty over the many years. As recently as 2012, the Supreme Court again cited
Flaherty in In re Nomination Petition of Gales, 54 A.3d 855 (Pa. 2012), and in In
re Lunny 44 A.3d 1 (Pa. 2012) (per curiam), rev’g In re Nomination Petition of
Lunny (Pa. Cmwlth., No. 170 M.D. 2012, filed April 5, 2012).21 Moreover, our
       20
         Similarly, Robertson’s reliance upon the Supreme Court’s 2012 opinion in Stevenson is
also misplaced, as Stevenson involved provisions of the Election Code imposing district
residency requirements for those collecting signatures on nomination papers.
       21
          In In re Nomination Petition of Lunny (Pa. Cmwlth., No. 170 M.D. 2012, filed April 5,
2012) (Pellegrini, P.J.), rev’d, 44 A.3d 1 (Pa. 2012) (per curiam), then-President Judge
Pellegrini, rather than applying the reasoning set forth in Flaherty and Nader, declined to strike
two signatures of electors who were registered in the voting district but listed different addresses
within the voting district on the nomination petition than their addresses contained in the SURE
system. In deciding not to strike the signatures, the Court specifically noted that there was no
dispute that the actual signatures were valid—i.e., that the signatures matched the signatures of
the electors in the SURE system—and determined that the deviations in the addresses were de
minimus. On appeal, however, the Supreme Court reversed, expressly relying on its holdings in
Flaherty and Nader. The Court recognizes that the Supreme Court’s per curiam order in Lunny
is not binding, see Commonwealth v. Tilghman, 673 A.2d 898, 904 (Pa. 1996), but we
nevertheless find the reasoning in the order persuasive and indicative of the Supreme Court’s
continued adherence to Flaherty and Nader.



                                                26
Court acknowledged the Supreme Court’s holding in Lunny in In re Nomination
Petition of Sweeney (Pa. Cmwlth., No. 423 M.D. 2014, filed September 4, 2014)
(Leadbetter, J.),22 and on numerous instances since then our Court has followed the
reasoning of Sweeney and applied the analysis set forth in Vodvarka.23
                In light of the Supreme Court’s continued adherence to Flaherty and
Nader and in the absence of clear federal preemption, it is for our Supreme Court
to overrule that line of cases. Until the Supreme Court does so, we will continue to
apply those cases as the Court did in Vodvarka and the many cases applying
Vodvarka. As such, we reiterate the presumption that a signature on a nomination
petition is valid, and an objector has the burden of proving defects in a nomination
petition. An objector may prove a defect by showing that an individual’s address
on the petition does not match the address in the voter registration records. At that
point, the burden shifts to the candidate to produce evidence to show why the
signature should not be stricken—i.e., that extraordinary circumstances existed.

       22
            In Sweeney, our Court wrote:
       As the Robertson court recognized, the current statutory provisions treat changes
       of address within the same county as not impairing the voter’s eligibility to vote
       and, thus, not impairing the voter’s status as a qualified elector. [Robertson],
       slip op. at 18-20. However, the persuasive analysis in Robertson cannot
       overcome the binding effect of the Supreme Court’s recent ruling in [Lunny].
Sweeney, slip op. at 5. We acknowledge that Sweeney does not constitute binding precedent on
this Court. See IOP 414(b), (d), 210 Pa. Code § 69.414(b), (d).
       23
          Recently, this Court has applied the burden-shifting analysis set forth in Vodvarka. See
In re Nomination Petition of Eichenlaub (Pa. Cmwlth., No. 98 M.D. 2016, filed March 22, 2016)
(Wojcik, J.); In re Nomination Petition of Walker-Montgomery (120 M.D. 2016, filed March 17,
2016) (Wojcik, J.); In re Nomination Petition of Singer (Pa. Cmwlth., No. 514 C.D. 2015, filed
April 23, 2015) (Cohn Jubelirer, J.); In re Nomination Petition of White (Pa. Cmwlth., No. 446
C.D. 2015, filed April 17, 2015) (Cohn Jubelirer, J.); and In re Nomination Petitions of Warner
(Pa. Cmwlth., No. 163 M.D. 2014, filed April 2, 2014) (Pellegrini, P.J.).



                                               27
Vodvarka, 994 A.2d at 31-32. Because the candidate is in a better position to make
this showing given that the candidate (or his supporters) obtained the signatures, it
is reasonable for the candidate to bear this burden. Accordingly, the Court strikes
the 461 signatures that are the subject of Objector’s NRA challenges.
             Next, we consider whether an elector’s signature may be stricken
from a nomination petition when the elector uses the address set forth in his voter
registration record instead of setting forth his street address and municipality. By
way of explanation, the nomination petition contains columns with four headings:
(1) signature of elector, (2) printed name of elector, (3) place of residence, and
(4) date of signing. The place of residence column is further divided into three
more specific columns: (a) house number, (b) street or road, and (c) city, borough
or township. Underneath the rows are columns where a signer writes the requested
information. Column 3(c)—city, borough, or township—is the subject of dispute.
Objector characterizes column 3(c) as requiring a signer to list his “municipality.”
We observe, however, that the nomination petition does not include a column
expressly requesting a signer to list his “municipality.” Moreover, we note that
mailing addresses usually contain a house number, street or road, and the name of
a nearby city or town. The city or town included in the mailing addresses does not
always match the legal name of the municipality where the residences are located.
             Here, Objector argues that the MUN entries on Candidate’s
nomination petition must be stricken, because the signers did not set forth their
proper municipality—i.e., their physical address. Instead, they used addresses
which matched addresses set forth in their voter registration records—i.e., their
mailing address. Objector appears to reason that under Flaherty and its progeny,
where a signer’s address on the nomination petition does not match the address for


                                         28
the municipality identified in the voter registration records, a prima facie case is
made that the entry must be stricken in the absence of rehabilitative evidence.
Objector maintains that the MUN entries contain a fundamental address error—
“the municipality listed in each of those entries does not match the municipality of
the signer in the SURE system.” (Objector’s Br. at 17 (emphasis added).)
            Candidate argues that this issue was addressed and squarely rejected
by the Court in Creighton, when our Court considered whether an entry on the
candidate’s nomination papers should be stricken where the signer wrote his
mailing address in the space for “City, Boro or Twp.,” rather than his township,
and rejected the notion that a signer was required to list his municipality in order
for his signature to be valid. Creighton, 899 A.2d at 1167.
            Noting that the candidate had offered evidence that the addresses on
the nomination papers were the signers’ mailing addresses, the Court in Creighton
held that when signing a nomination petition, an elector may use either his
“mailing address or the municipality of the elector’s election district in the space
on the petition marked ‘City, Boro or Twp.’” Id. at 1170. The Court explained
more fully as follows:
            Under Nader and Flaherty, absent extraordinary
            circumstances, Section 908 of the Election Code requires
            that the elector’s address must conform with the elector’s
            address as it appears on the voting registration card.
            Neither Nader nor Flaherty dealt with the specific issue
            here of whether an elector’s signature should be stricken
            when the elector uses his or her mailing address rather
            than the municipality in which he or she resides.
                   Whether a mailing address is a defect at all
            depends on what the Election Code requires. Section 704
            of the Election Code, 25 P.S. § 2814, sets forth the rules
            for determining an elector’s residence. It provides that a
            person desiring to register to vote must do so for that
            place where the person’s habitation is fixed, and to
                                        29
             which, whenever he or she is absent, he or she has the
             intention of returning. 25 P.S. § 2814(a). The term
             “election district” is defined in the Election Code as “a
             district, division or precinct, established in accordance
             with the provisions of this act, within which all qualified
             electors vote at one polling place.” Section 102 of the
             Election Code, 25 P.S. § 2602.
                    In addition, Section 1102 of what is commonly
             referred to as the Pennsylvania Voter Registration Act,
             25 Pa. C.S. § 1102, identifies information that must
             appear on a voter registration card. It requires, inter alia,
             the “ward and election district of residence” and the
             “registrant’s street address.” 25 Pa. C.S. § 1102. This
             Court construes “street address” to signify the voter’s
             mailing address. The record shows that the elector’s
             mailing address and the elector’s election district are both
             included on the elector’s voter registration card.
             Accordingly, when an elector signs a nomination
             petition, the elector may use either his or her mailing
             address or the municipality of the elector’s election
             district in the space on the petition marked “City, Boro or
             Twp.” This is consistent, also, with our Supreme Court’s
             holding in Flaherty and Nader that the address used on a
             nomination petition must match the address shown on the
             voter registration card.
                    Objectors do not claim that any of the signatures in
             question are unauthentic; that the street address is
             inaccurate; that any of the signers live at an address other
             than the one listed; or that they are not duly registered
             voters or electors in the 37th Legislative District. As a
             result, the . . . challenges . . . fail.
Creighton, 899 A.2d at 1169-70 (footnotes omitted).
             Objector argues that Creighton is not contrary to his position, because
Candidate has not offered any evidence that the MUN entries reflect the mailing
addresses for those signers. Rather, Objector maintains that the parties have
merely stipulated that those entries
             contain a name, signature, and street address matching
             that of an individual registered to vote in the county

                                          30
              reflected on the Petition page containing the entry, but
              the place set forth in the “City, Boro or Twp.” section of
              the entry does not match the political subdivision on
              record in the SURE system for the individual of that
              name and street address.

(Stip. ¶ 6.) Because there is no record evidence that the MUN entries reflect the
mailing addresses of the signers, Objector contends that the factual prerequisite for
the rationale employed by the Court in Creighton is absent here and the MUN
entries should be stricken.
              Objector’s argument is specious, as it attempts to mischaracterize the
nature of the information set forth in the voter registration record and obscures the
basis for the Court’s opinion in Creighton. Objector implies that the address set
forth in the voter registration record is not necessarily the “mailing address” of the
elector referred to in Creighton, but perhaps may be some other type of address.
Objector also appears to imply that, under Creighton, a candidate must establish
that the address on the nomination petition is the actual mailing address, not that it
is the address set forth in the voter registration record. Under Objector’s argument,
when the information in the “City, Boro or Twp.” column does not match the
municipality listed in the voter registration record, absent rehabilitative evidence
that the address in the voter registration record is, in fact, the signer’s mailing
address, it is irrelevant if the address on the nomination petition matches the
address in the voter registration record. Instead, the voter must present evidence
that the address in the voter registration record is also the mailing address used by
the signer.
              Objector clearly misapprehends Creighton.         Section 704 of the
Election Code, to which the Court referred in Creighton, sets forth the rules for
determining an elector’s “residence,” not an elector’s mailing address.

                                         31
Section 1102 of the Voter Registration Act, to which the Court also referred to in
Creighton, identifies information that must appear on a voter registration card,
including the “ward and election district of residence” and the “registrant’s street
address.” Section 1102 does not require that the registrant provide a “mailing
address” for inclusion on the voter registration card, and we do not believe that the
General Assembly intended the “registrant’s street address” to be anything other
than the street address for the registrant’s residence, which usually functions as a
mailing address. Moreover, the Court in Creighton construed “‘street address to
signify the voter’s mailing address.”             Creighton, 899 A.2d at 1170.             Thus,
Objector’s contention that the Court in Creighton, when it referred to a signer’s
“mailing address,” somehow was referring to something other than the street
address as set forth in the voter registration record lacks merit. To conclude
otherwise would render the “street address” in the voter registration record
meaningless.24 Thus, we reject Objector’s interpretation of Creighton.
               We agree with Candidate that Creighton squarely addressed this issue,
and Objector has not presented any compelling reason to alter, let alone abandon,
the analysis set forth in Creighton, particularly where the relevant statutory
provisions require registrants to provide a “registrant’s street address” and “ward
and election district of residence” for inclusion on the voter registration card, see
Section 1102 of the Voter Registration Act, and the nomination petition does not
contain language expressly requiring that a signer set forth his municipality.

       24
           Objector’s interpretation would also create an unworkable framework where a
candidate, when a signer failed to list his municipality on the nomination petition, would need to
bring in extrinsic evidence that the signer uses the address set forth on the nomination petition
(which matches the street address in the voter registration record) to receive mail.



                                               32
Although the significance of Flaherty and Nader as recounted in Creighton may be
diminished in light of our discussion above with respect to the NRA issue, the
statutory analysis in Creighton remains solid.25
              For these reasons, we reject Objector’s challenges to the MUN entries
and reiterate our earlier holding in Creighton that “when an elector signs a
nomination petition, the elector may use either his or her mailing address or the
municipality of the elector’s election district in the space on the petition marked
‘City, Boro or Twp.’” Creighton, 899 A.2d at 1170.
              Accordingly, because the Court strikes the signatures that were
challenged based upon the signers being “not registered at the address” contained
on the nomination petition, we grant Objector’s petition to set aside Candidate’s
nomination petition.



                                     P. KEVIN BROBSON, Judge




       25
          In support of his argument, Objector also cites In re Nomination Petition of White (Pa.
Cmwlth., No. 446 C.D. 2015, filed April 17, 2015) (Cohn Jubelirer, J.), an unreported
single-judge opinion, wherein a signer mistakenly wrote an incorrect house number on the
nomination petition and the Court allowed the candidate to meet his burden to prove
“extraordinary circumstances” by producing evidence showing that the signer had made a
mistake. Objector points out that the Court in White did not conclude that the error in the house
number was de minimis and could or should be overlooked. Objector seems to suggest that this
is akin to the situation now before the Court, because the municipality is listed incorrectly.
White, however, in no way supports Objector’s argument.



                                               33
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Nomination Petition of Joseph         :
Vodvarka as a Candidate of the               :
Democratic Party for the                     :
United States Senate in the                  :       No. 126 M.D. 2016
Primary Election of April 26, 2016           :
                                             :
Petition of: Joseph A. Sestak, Jr.           :

                                     ORDER


             NOW, this 30th day of March, 2016, upon consideration of the Petition
of Joseph A. Sestak, Jr. (Objector) to Set Aside the Nomination Petition of Joseph
Vodvarka as a Candidate (Candidate) of the Democratic Party for the United States
Senate, it is hereby ordered:
      1. With regard to Objector’s “Not Registered at Address” challenges to 461
          signatures based upon a contention that the signatures should be stricken
          because the entries contain a name and signature matching that of a
          person registered to vote in the county reflected on the nomination
          petition page containing the entry, but the address provided in the entry
          does not match the address on record in the Statewide Uniform Registry
          of Electors (SURE) system for the individual of that name, the Court
          concludes that the signatures shall be STRICKEN.
      2. With regard to Objector’s “Municipality” challenges to 220 signatures
          based upon a contention that the signatures should be stricken because
          the signatures contain a name, signature, and street address matching that
          of an individual registered to vote in the county reflected on the
          nomination petition page containing the entry, but the place set forth in
3. the “City, Boro or Twp.” section of the entry does not match the political
   subdivision on record in the SURE system for the individual of that name
   and street address,” the Court concludes that the signatures are VALID.
4. As a result of the above rulings, the Petition to Set Aside the Nomination
   Petition of Joseph Vodvarka is GRANTED, because Candidate’s
   nomination petition now contains less than the requisite number of valid
   signatures required for his name to be on the ballot as Candidate for the
   Democratic Party for the Unites States Senate.
5. The Secretary of the Commonwealth is directed to REMOVE the name
   of Joseph Vodvarka as Candidate of the Democratic Party for the United
   States Senate from the ballot for the Democratic Primary on
   April 26, 2016.
6. The Chief Clerk shall notify the parties hereto and their counsel of this
   order and also certify a copy hereof to the Secretary of the
   Commonwealth.




                         P. KEVIN BROBSON, Judge
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Nomination Petition of Joseph      :
Vodvarka as a Candidate of the            :
Democratic Party for the United           :
States Senate in the Primary Election     :
of April 26, 2016                         :   No. 126 M.D. 2016
                                          :
Petition of: Joseph A. Sestak, Jr.        :   Submitted: March 18, 2016



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge



DISSENTING OPINION
BY JUDGE COHN JUBELIRER                               FILED: March 30, 2016



      I, respectfully, disagree that the ability to nominate a candidate of one’s
choice, which requires the signing of a nomination petition, does not implicate an
individual’s constitutionally protected right to vote. “There is more to the right to
vote than the right to mark a piece of paper and drop it in a box or the right to pull
a lever in a voting booth,” or in modern times, to check a box on a voting machine.
South v. Peters, 339 U.S. 276, 279 (1950) (Douglas J., dissenting). State laws
concerning the eligibility of candidates “inevitably affects—at least to some
degree—the individual’s right to vote and his right to associate with others for
political ends.”   Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).           While
individuals are always free to write-in a candidate of their choosing on election
day, this country’s two-party political system is designed in such a way that
degrading the ability of citizens to nominate a candidate of their choosing for the
political party for which they are a member effectively diminishes their right to
vote. Without the ability to nominate a candidate, the right to vote can become a
meaningless affirmation of a choice made by others. I, therefore, believe that the
protections of the federal laws which protect the right to vote must also apply to
the ability to nominate individuals for whom the right to vote can be exercised.
Because I believe, with the advent of the SURE system, that a different balance
could protect against fraud in the electoral process without disenfranchising
otherwise qualified electors, I must respectfully dissent to the Majority’s well-
written and thorough opinion.


      Section 908 of the Election Code requires all signers of nomination petitions
to “add his residence, giving city, borough or township, with street and number, if
any . . . .” 25 P.S. § 2868. Applying this provision of the Election Code has
challenged the courts. The courts must, on the one hand, vigilantly protect the
franchise and remain cognizant that “any restrictions” on “[t]he right to vote freely
for the candidate of one’s choice      . . .     strike at the heart of representative
government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). On the other hand, the
courts must be ever-mindful that the Commonwealth “has an interest, if not a duty,
to protect the integrity of its political processes . . .” Bullock v. Carter, 405 U.S.
134, 145 (1972). Accordingly, the courts of this Commonwealth have long been
entrusted to balance these dual objectives by both construing the Election Code
liberally “so as not to deprive an individual of his right to run for office, or the


                                       2 - RCJ
voters of their right to elect a candidate of their choice,” Nomination Petition of
Ross, 190 A.2d 719, 720 (Pa. 1963), and by “protect[ing] the Commonwealth’s
compelling interest in preserving the integrity of the election process.” In re
Nomination Papers of Carlson, 430 A.2d 1210, 1212 (Pa. Cmwlth. 1981)
(Crumlish, J., single judge op.).


       In In re Nomination of Flaherty, 770 A.2d 327 (Pa. 2001), our Supreme
Court was confronted with balancing these dual interests when it addressed a
nomination petition of a candidate seeking to be placed on the ballot for judge on
this Court. The nomination petition at issue included 16 signatures of electors that
listed addresses that did not match the addresses stated on the voters’ respective
voter registration cards. The Court looked to the Voter Registration Act in effect at
the time, which provided that voters who moved within the county could not vote
in elections unless they notified the authorities of their new address no later than
30 days preceding an election,1 and held that “absent extraordinary circumstances,
electors who declare a residence at an address different than the address listed on
their voter registration card are not qualified electors at the time they sign a
nomination petition unless they have completed the removal notice required by the
Voter Registration Act.” Flaherty, 770 A.2d at 333.


       More recently, this Court has employed a more forgiving interpretation of
the Election Code in the context of federal elections. See, e.g., In re Nomination


       1
          25 Pa. C.S. §§ 961.901-961.902, repealed by the Act of January 31, 2002, P.L. 18, No.
3, § 5(2).



                                           3 - RCJ
Papers of Robertson (Pa. Cmwlth. No. 507 M.D. 2012, filed September 20, 2012),
slip op. at 13.2 Because Flaherty addressed only state elections and relied on the
text of a Voter Registration Act that had been repealed, the Court looked to federal
law and held that “the mere fact that the address [listed on a voter registration card]
does not match [the address written on the nominating papers] does not invalidate
the signature.” Robertson, slip op. at 13. According to the Court:

       [T]he Election Code requires only that the signer write his current
       residence address and does not state that he must write the address at
       which he is registered or that his present residence must match his
       registered address. Where the Election Code does not affirmatively
       require that information on a nomination petition or paper match the
       voter registration record and the differences does not compromise the
       integrity of the election process, signatures cannot be stricken based
       on a difference from the voter registration records.


Robertson, slip op. at 25-26. The Court’s reasoning also relied, in no small part,
on the fact that the SURE system was created by statute after Flaherty was
decided. Section 1222 of the Election Code, 25 Pa. C.S. § 1222.3 The Court noted
that

       while voter registration records were once searched by address in hard
       copy volumes, address is no longer essential for searching whether
       signers are registered voters. . . . The SURE system permits electronic
       searching by name and permits signatures to be pulled up for
       comparison from a name search without inputting address
       information.


       2
         Pursuant to Section 414 of the Commonwealth Court Internal Operating Procedures,
unreported opinions of a panel of the Commonwealth Court, if issued after January 15, 2008,
may be cited for “persuasive value, but not as binding precedent.” 210 Pa. Code § 69.414(a).

       3
           Added by Section 4 the Act of May 16, 2002, P.L 310, No. 44.

                                            4 - RCJ
Robertson, slip op. at 28 (emphasis added).


      Balancing the competing concerns at issue in these cases is complicated. It
is not surprising, then, that this Court’s jurisprudence has not been entirely
consistent on the issue of whether a signature of a person who lists an address
different than that on record in the SURE system is valid. Compare In re Payton,
945 A.2d 279, 286 n.3 (Pa. Cmwlth.) review denied, order aff’d, 945 A.2d 162 (Pa.
2008) abrogated on other grounds by In re Stevenson, 40 A.3d 1212 (Pa. 2012)
(not striking signature lines that listed their residences with addresses in the district
even though the addresses differed from the registration addresses); In re
Nomination Petition of Brown, 846 A.2d 783, 787 (Pa. Cmwlth. 2004) (not
allowing amendment to addresses listed on a nomination petition because “to do so
would be pointless” given that different addresses within the political district had
“no legal effect on the signers’ status as a qualified and registered elector”); with
In re Nomination Petition of Vodvarka, 994 A.2d 25, 30 (Pa. Cmwlth. 2010)
(Leavitt, J., single judge op.) (applying Flaherty’s “extraordinary circumstances”
test); In re Nomination Petition of White (Pa. Cmwlth., No. 446 C.D. 2015, filed
April 17, 2015) (Cohn Jubelirer, J., single judge op.), slip op. at 13 (applying
Flaherty’s “extraordinary circumstances” test and holding that a recent move
within a district is an extraordinary circumstance that allows for the introduction of
curative evidence).


      It appears that the Supreme Court has similarly struggled to provide this
Court with consistent guidance on this issue, at least as it concerns federal


                                        5 - RCJ
elections. In In re Nomination Petition of Gales, 54 A.3d 855, 861 (Pa. 2012), the
Supreme Court cited its Flaherty decision favorably in the context of a state
election primary. The following week, the Supreme Court re-affirmed its holding
in Flaherty in In re Lunny, 44 A.3d 1, 2 (Pa. 2012), where it reversed this Court’s
decision to not strike signatures on a nominating petition for state office that listed
an address other than the one provided on the voter registration card. However,
when the Supreme Court addressed Robertson on appeal six months later, and was
confronted with the same issue in the context of a federal election, the Court did
not comment on this Court’s decision to not strike the signatures or disturb
Robertson’s holding in this regard. In re Robertson, 55 A.3d 1044, 1044-45 (Pa.
2012) (reversing this Court’s opinion only “to the extent that it ordered that the
signatures unaccompanied by a designation of the year of signing must be stricken
from the nomination papers”).


      In the face of this uncertainty, and given that the “overriding policy in this
Commonwealth to protect the elective franchise,” Petition of Cioppa, 626 A.2d
146, 148 (Pa. 1993), I strongly believe that this Court should, within the bounds of
the law, err on the side of including, rather than excluding, all citizens in the
electoral process. I fear that, in its balance of the dual mandates of the Election
Code, the Majority’s holding will have a deleterious effect on the right to vote of
disadvantaged citizens and those not traditionally politically active. Those who
rent a residence, do not drive a vehicle, and those who reside in assisted living
facilities, student housing, public housing, shelters, and group homes are more
likely to reside at an address that differs from the address listed on their voter
registration cards. Striking signatures of those who list an in-county address on a


                                       6 - RCJ
nomination petition that differs from the address listed on the SURE system, when
the signatures would otherwise be consistent with the voter registration cards,
degrades the electoral power of these citizens. And, as Chief Justice Warren stated
in the landmark Reynolds v. Sims decision, “[t]o the extent that a citizen’s right to
vote is debased, he is that much less a citizen.” Reynolds, 377 U.S. at 567.


      I believe the correct balance, which is supported by the our case law and the
purposes of Section 908 of the Election Code, is to follow the approach outlined in
Robertson and to not strike a signature where the only defect is that the elector is
registered at a different address within the same county than the in-county address
written on the nomination petition. Because the fact that an elector moves within
the county without immediately updating voter registration information, by itself,
does not render the elector unqualified to vote, it should likewise not render the
elector unqualified to sign a nomination petition, so long as the signature is
consistent with the signature on the registration card. Moreover, not striking such
signatures does not violate the integrity of the electoral system as an elector’s
identity can be confirmed by matching the signature on the SURE system. By
using the SURE system, an individual who signs a nomination petition can be
searched by first and last name and the individual’s identity can be verified by
examining the signature found in the system. While listing an address that matches
that on an elector’s voter registration card may have been integral to prevent fraud
in the past, with the advent of the SURE system, this is no longer required. I
would, therefore, hold that because Objector has not proffered any defect to the
challenge of 461 signature lines other than the fact that the addresses listed do not
match the electors’ voter registration card, Objector has failed to meet his burden.


                                      7 - RCJ
      I agree with the Majority’s well-reasoned conclusion that the signatures of
the electors that listed their mailing addresses instead of their municipality on the
Nomination Petition are valid. The Majority’s approach to this issue is consistent
with case law and strikes the appropriate balance between protecting the franchise
and preventing fraud. However, for the reasons set forth above, I must respectfully
dissent from the majority opinion in this case.



                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge


      Judge McCullough joins in this dissent.




                                      8 - RCJ
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Nomination Petition of                 :
Joseph Vodvarka as a Candidate of the         :
Democratic Party for the United States        : No. 126 M.D. 2016
Senate in the Primary Election of             :
April 26, 2016                                : Submitted: March 18, 2016
                                              :
Petition of: Joseph A. Sestak, Jr.            :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge


DISSENTING OPINION
BY JUDGE McCULLOUGH                                        FILED: March 30, 2016


             I join in the well-written and thorough dissenting opinion of Judge
Cohn Jubelirer. Unlike the Majority, I would conclude that a discrepancy between
an elector’s listed address on a nomination petition and the address indicated in the
voter registration record is an amendable defect when: (1) the elector’s signature
on the nomination petition matches that of his/her registration card; (2) the elector
is a registered voter affiliated with the political party of the candidate; and (3) the
address listed on the nomination petition is within the same county and/or political
district of the candidate. In these circumstances, there is no question that the
elector’s signature is authentic, and the spirit of federal and state statutory voting
laws dictate that the discrepancy in address does not render the elector unqualified
to sign a nomination petition and vote for a candidate. I respectfully submit that to
hold otherwise would constitute an infringement of one’s constitutionally protected
right to vote.
                 I write separately to express the view that our Supreme Court’s per
curiam order in In re Nomination of Lunny, 44 A.3d 1 (Pa. 2012), does not compel
this Court to reach a result different from that advocated by Judge Cohn Jubelirer
in her dissent and the majority panel in In re Robertson (Pa. Cmwlth., No. 507
M.D. 2012, filed September 20, 2012)1 (an unreported memorandum opinion by a
three-judge panel).
                 In Lunny, our Supreme Court reversed a single-judge order of this
Court and held that we erred in not striking two signature lines on the basis of the
electors’ addresses not matching the addresses on the respective electors’ voter
registration cards. In support of this reversal, the Supreme Court cited its previous
decisions in In re: Nomination of Flaherty, 770 A.2d 327, 333 (Pa. 2001), and In
re Nomination Papers of Nader, 858 A.2d 1167, 1183 (Pa. 2004) (holding,
generally that “absent extraordinary circumstances, an individual who signs a
nomination petition that lists an address other than the one provided on his voter
registration card is not a qualified elector”).
              Flaherty and Nader have been persuasively distinguished by Judge
Cohn Jubelirer in her dissent herein and by the majority in Robertson. As to
Lunny, our Supreme Court has previously held that its per curiam orders have no
stare decisis effect, Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2009),
nor are the orders themselves controlling even when citing to binding authority,

       1
        Robertson, as an unreported panel decision of this Court, has persuasive value, but it
does not constitute binding precedent. Internal Operating Procedure 414(a), 210 Pa. Code
§69.414(a).
                                          PAM - 2
Commonwealth v. Smith, 836 A.2d 5, 17 (Pa. 2003). While there is no dispute that
a per curiam order becomes the law of a particular case, our Supreme Court has
held that such an order only has precedential effect when it expressly adopts the
reasoning of a lower court opinion. Commonwealth v. Tilghman, 673 A.2d 898,
904 (Pa. 1996).
             Additionally, the single-judge opinion in Lunny did not undertake the
extensive analysis set forth in Robertson. Indeed, our decision in Lunny preceded
our decision in Robertson by approximately five months. Hence, neither our
underlying decision nor the Supreme Court’s per curiam order in Lunny addressed
the effect of the National Voter Registration Act of 1973 (NVRA), 42 U.S.C.
§973gg—6, or the potential preemption conflict between the NVRA and/or the
Pennsylvania’s Voter Registration Act (the 2002 Act), 25 Pa. C.S. §§1101—3302,
and the Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S.
§§2600—3591.
             However, in addition to Robertson, these issues were addressed in a
single-judge decision in In re: Nomination Petition of Sweeney (Pa. Cmwlth., No.
423 M.D. 2014, filed September 4, 2014). In that case, the addresses listed for
seven signatures on the nomination papers did not match the corresponding
addresses on the respective electors’ voter registration cards, and Judge Leadbetter
noted that all of the addresses were in the relevant senatorial district and that the
signatures on the nomination papers appeared to match the signatures on the
respective electors’ voter registration cards. She went on to explain that:

             The Pennsylvania Election Code requires that
             nominations by political bodies of candidates for state
             senate “be made by nomination papers signed by
             qualified electors . . . of the electoral district for which
             the nomination is made . . . .” Section 951(a), as

                                      PAM - 3
amended, 25 P.S. § 2911(a). Persons signing such
nomination papers are required to declare therein that he
or she is a qualified elector of the district and must add to
his signature his or her legibly printed name, residence
and the date of signing. “Qualified elector” is defined
as: “any person who shall possess all of the qualifications
for voting now or hereafter prescribed by the
Constitution of this Commonwealth, or who, being
otherwise qualified by continued residence in his election
district, shall obtain such qualifications before the next
ensuing election.” Section 102(t) of the Election Code,
as amended, 25 P.S. §2602(t).              The Constitution
prescribes age, citizenship and residency conditions that
qualify one as an elector who shall be entitled to vote
“subject, however, to such laws requiring and regulating
the registration of electors as the General Assembly may
enact.” Pa. Const. art 7, §1. This language and the
practicality of relying on registration records to
determine whether a signer is a qualified elector underpin
the established rule that a qualified elector under Section
951 of the Election Code must be a registered voter. See
In re Nomination Paper of Rogers, 908 A.2d 942, 946-47
(Pa. Cmwlth. 2006), abrogated in part on other ground
by In re Stevenson, 40 A.3d 1212 (Pa. 2012). See also
Aukamp v. Diehm, 8 A.2d 400, 401 (Pa. 1939).

It is entirely clear that the signers at issue here are the
registered voters whose signatures match those on the
SURE system records viewed during the hearing.
Objectors produced no evidence to establish that these
signers are not qualified electors eligible to vote at the
next election in November. Under the analysis in In re
Robertson, (Cmwlth. No. 507 M.D. 2012, memorandum
op. filed September 20, 2012), adopted by two of the
three panel members, the 6 signature lines at issue in the
present case involving a residence change within the
same county are valid. As an unpublished memorandum
decision, Robertson is not precedential, but I find it
extremely persuasive in its analysis of the effect of 2002
amendments to the Voter Registration Act, 25 Pa.C.S.
§§1101–3302, on the resolution of the present issue. In
particular, the 2002 amendments establish that a voter
who has moved within the same county is entitled to vote
                         PAM - 4
              in one election at his old polling place, regardless of
              when he moved. 25 Pa. C.S. §1501(b)(2). In addition, a
              voter’s registration cannot be cancelled simply because
              the voter moved without changing his registration
              address, and a voter cannot be removed from the
              registration rolls based on a move within the same county
              absent compliance with the specific requirements of the
              National Voter Registration Act of 1993, 52 U.S.C.
              §20507 [formerly found at 42 U.S.C. §1973gg—6(e)]
              (precluding removal from voter rolls absent failure to
              respond to notice and failure to vote in two federal
              elections). See 25 Pa.C.S. §1901(a) and (d). As the
              Robertson court recognized, the current statutory
              provisions treat changes of address within the same
              county as not impairing the voter’s eligibility to vote and,
              thus, not impairing the voter’s status as a qualified
              elector. Id. slip op. at 18-20.
Sweeney, slip op. at 3-5 (footnote omitted, emphasis added).2
            In the Sweeney case, the qualification of seven voters was at issue.
However, in many election petition challenges, including a number of those filed
within this recent election cycle, the numbers have been much higher, generally
ranging from 30 to 50 and, at times, up to or exceeding 100 signatures of electors
on a candidate’s petition.
            The issue of potentially impairing a registered and eligible voter from
otherwise signing a candidate’s nomination petition raises a significant concern,
which I respectfully submit merits resolution. I adopt and reiterate the request of
Judge Leadbetter in Sweeney that our Supreme Court revisit its decisions in
Flaherty and Nader in light of the amendments to the NVRA and the 2002 Act.
See id., slip op. at 5.



       2
        Ultimately, however, Judge Leadbetter felt constrained to strike the signatures at issue
based upon our Supreme Court’s prior decisions in Flaherty and Nader, as well as the court’s per
curiam order in Lunny.
                                          PAM - 5
            In my opinion, the reasoning above, and that of Judge Cohn Jubelirer’s
dissenting opinion, ensure that an individual will not be deprived of the right to run
for office and that the electorate will not be deprived of their right to elect a
candidate of their choice. Since I do not believe that our Supreme Court’s per
curiam order in Lunny precludes this Court from adopting the rationale and legal
conclusions of the Robertson court majority and Judge Cohn Jubelirer’s dissent, I
respectfully dissent.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                      PAM - 6
