This June, the Court issued its decision in Working Families Party v. Commonwealth, 34 EAP 2017 (“WFP”), rejecting a claim by a Democratic and would-be-also-WFP candidate, the WFP, and several WFP-aligned voters that the “anti-fusion” provisions of Pennsylvania's Election Code, which prohibit a candidate from filing petitions to seek multiple parties' nominations for a particular office, but do not prohibit write-in campaigns for Democratic and Republican nominations for a particular office (or vice-versa), violate, inter alia, their Pennsylvania constitutional right to free and equal elections. Although the decision is, at first blush, merely an evaluation of a somewhat arcane provision of the Election Code, it functionally guarantees major-party (and major-party-machine) dominance of Pennsylvania politics in perpetuity.

In the opinion, authored by Justice Sallie Mundy and joined by Chief Justice Thomas Saylor, as well as Justices Max Baer and Kevin Dougherty, the Court essentially reasoned that the plaintiffs' claims were meritless because, so long as a candidate is permitted to seek a single party's nomination (and so long as any candidate can avail himself or herself of the write-in exception), the anti-fusion provisions do not dilute any voter's power to select the candidate of his or her choice in the general election:

[T]he overarching objective of [the Pennsylvania constitutional right to free and equal elections] is to prevent dilution of an individual's vote by mandating that power of his or her vote in the selection of representatives be equalized to the greatest degree possible with all other Pennsylvania citizens. Viewed from this perspective, Appellants have not established that their votes were diluted by the ban against cross-nomination. Here, Appellants had the opportunity to support and vote for the candidate of their choice in the 2016 general election. In no sense were their votes diluted by the fact that [the candidate] appeared on the ballot only as the candidate of the Democratic Party. Here, Appellants had the same right as every other voter, and thus the foundational principle underlying [the Pennsylvania constitutional right to free and equal elections] is not offended.

Appellants' arguments with respect to [the write-in exception do] not warrant relief. . . . [A] successful write-in candidate may be declared the winner of a primary election. . . . [T]he potential for fusion by a successful write-in campaign is not limited to major party candidates. The same may be accomplished by a political body. Even in a situation where one candidate appears on a ballot with two major party designations due to write-in votes in a primary election, . . . voting rights in the general election are not affected because a voter supporting such a candidate is not in a position superior to the voter casting his ballot for a candidate having a single political designation. In such scenario, the vote is counted once.

Majority Opinion at 19-20 (internal citations and quotations omitted).

The Court's reasoning, although certainly one way to conceive of vote dilution, ignores that the anti-fusion provisions not only make it practically more difficult for candidates to seek the combined nominations of a minor party and major party than of two major parties, but may also practically prevent third parties and third-party aligned voters from nominating their first-choice candidates, and practically force third-party voters to choose between supporting their preferred candidate (in the hope that he or she wins the election) or their party's nominee (in the hope that they might improve their ballot status). As Justice Wecht, joined by Justice Donohue, explained in some detail in his concurring and dissenting opinion:

Robert, a self-identified “centrist,” seeks the nominations of both the Democratic and Republican parties in his 2022 campaign for Governor of Pennsylvania. A lifelong Democrat by registration, he pursues that party's nomination by taking the steps necessary to secure a place on that party's primary ballot. To do so, he must collect two thousand signatures in the three-week period between the thirteenth Tuesday before the primary election and the tenth Tuesday before the primary. A longtime Democratic politician, he collects the signatures with ease. Meanwhile, Robert vigorously makes his case for a write-in vote to Republican voters. With a crowded Republican field from which no frontrunner has emerged as the primary approaches, Robert's effort gains traction.

Roberta, also a long-time registered Democrat but of a more liberal bent, also enjoys enough party support to believe that she would defeat Robert for the party's nomination in the same race were she to appear on the Democratic Party's primary ballot. However, by Roberta's calculations, a candidate who runs as a more liberally-inclined Democrat in the general election will face an uphill electoral battle against the Republican nominee, especially because a third party, True Blue, recently has emerged to advocate a more aggressive approach to certain policy positions associated generally with the Democratic [P]arty and has gathered enough support for its nominees to have acted as spoilers in recent races by siphoning off Democratic votes. Thus, Roberta also seeks the support of this upstart party, which remains a political body under state law subject to the more burdensome signature requirements that apply to such a body. A substantial majority of the True Blue rank and file, for their part, believe that Roberta best embodies the party's collective values, and embrace her desire to seek the nomination in tandem with that of the Democratic Party.

If Roberta sought only the True Blue nomination, she would have from the tenth Wednesday before the primary until the second Friday after the primary (or just shy of twelve weeks) to collect a number of signatures equal to two percent of the largest vote cast for any elected candidate in the state at the last state-wide election in order to secure ballot placement statewide on True Blue's behalf, bring all necessary papers together, and submit them to the Secretary of the Commonwealth. But because she also seeks the Democratic Party nomination by write-in vote (her only option if she wants the True Blue nomination), the time period that she has to collect signatures in furtherance of True Blue's nomination is foreshortened by eleven days, because if she is successful in her write-in campaign for the Democratic nomination on primary day, she forfeits the right to submit True Blue nomination materials thereafter. Thus, she must collect, organize, and validate her petitions in the ten weeks preceding the primary, to be held the third Tuesday in May, effectively forfeiting nearly two post-primary weeks that she otherwise would have to secure the tens of thousands of signatures in support of her True Blue nomination to ensure a place on the general ballot as that party's nominee. Moreover, at least thirty days before the primary, she must renounce her Democratic voter registration, which will do her no favors in her write-in campaign for that party's nomination, especially against a formidable candidate like Robert.

Knowing all of this in advance, Roberta faces a wrenching choice. If she pursues the True Blue nomination, not only does she risk failing to secure the Democratic nomination by write-in, where she might have prevailed had she appeared on the ballot, but she also risks failing in her effort to secure the requisite signatures in a somewhat shorter period of time than the General Assembly has seen fit to provide political-body candidates. Moreover, if she succeeds in her write-in campaign, but fails to collect sufficient signatures in advance of the primary, she simultaneously will forfeit her eligibility to secure the nomination of the True Blue party, deny the True Blue party the ability to nominate its first-choice candidate, and leave True Blue with less than two weeks to collect signatures for a second-choice nominee, very likely resulting in True Blue fielding no nominee at all. And even if True Blue somehow manages to nominate a second-choice candidate, those among its members who prefer Roberta in principle will be forced to choose between supporting their preferred candidate or their preferred party in the general election.

Although Robert and Roberta each seek to utilize the [write-in] exception, and theoretically may do so, the decisions and logistical challenges that Roberta faces manifestly are more onerous than those Robert confronts. The differences arise directly from the statutory distinctions between the nomination requirements that apply to major parties and those that apply to minor parties, which work in concert with the [write-in] exception to impose a substantial practical disadvantage upon candidates seeking minor party-major party cross-nominations.

Concurring and Dissenting Opinion of Wecht, J., at 12-15 (footnotes omitted).

Indeed, historical research reveals that, although there was robust activity by third-parties (including, at one time, each of the then-non-dominant Democratic and Republican parties) in American politics, in the late 19th- and early 20th- century, Republicans in the Midwest, and, later, major-party politicians in Pennsylvania and throughout the nation adopted the anti-fusion provisions for the very purpose of deflating those interested in third parties, to the degree that one Detroit newspaper wryly referred to then-pending anti-fusion legislation as “the law providing for the extinction and effacement of all parties but Democratic and Republican.” Peter H. Argersinger, “A Place on the Ballot”: Fusion Politics and Antifusion Laws, 85 Amer. Hist. Rev. 287, 304 (1980).

Second, although the Court's narrow view of vote dilution is not inherently incorrect, it is a contraction of its conception of the term, nary a year and a half earlier, inLeague of Women Voters v. Commonwealth, 178 A.2d 737 (Pa. 2018) (“League”). The Court in League, in an opinion authored by Justice Debra Todd, and joined by Justices Donohue, Dougherty, and Wecht, conducted a thoroughgoing review of the history of the right to free and equal elections, tracing its roots back to political struggles between geographic, religious, political, and even socioeconomic sects using various legal mechanisms to establish their political dominance, see League, 178 A.2d at 804-09, before explaining that the establishment and constitutionalization of the right to free and equal elections was meant to put an end to those sectarian power struggles:

When viewed against the backdrop of the intense and seemingly unending regional, ideological, and sectarian strife detailed above, which bitterly divided the people of various regions of our state, this provision must be understood then as a salutary effort by the learned delegates to the 1790 [constitutional] convention to end, once and for all, the primary cause of popular dissatisfaction which undermined the governance of Pennsylvania: namely, the dilution of the right of the people of this Commonwealth to select representatives to govern their affairs based on considerations of the region of the state in which they lived, and the religious and political beliefs to which they adhered.

Id. at 808-09. The court went on to hold that General Assembly's 2011 Congressional Redistricting Plan, a partisan gerrymander which created Congressional districts maximizing the power of Republicans and minimizing the power of Democrats in the Congressional delegation as a whole, violated the right to free and equal elections.

In this author's view, the constructions of “vote dilution” in WFP and League are incongruous. Although the WFP majority certainly abided by League's language, its opinion sharply retreats from its substance: that a currently dominant political group may not use the law to solidify its political power. Indeed, had the WFP majority's conception of vote dilution prevailed in League, one readily imagines that the 2011 Plan would have passed constitutional muster: nothing in the 2011 Plan prevented any voter from selecting his or her candidate of choice in the general election, and, frankly, the 2011 Plan's essentially statistical methods of vote dilution would appear significantly more attenuated than those the anti-fusion provisions employ. Indeed, Justice Mundy advocated as much in her League dissent. See id. at 834 (Mundy, J., dissenting).

It will be interesting, not to mention important, to see how this line of jurisprudence develops. On the one hand, if the WFP majority's interpretation of vote dilution prevails, it will have to deal with League in the upcoming 2021-round of redistricting challenges and face (new) charges from Harrisburg Republicans that League was merely meant to help Democrats in the 2018 midterm Congressional elections. On the other hand, if League is revived, it will have to do better to apply it faithfully in what will likely be innumerable challenges to election provisions from divergent signature requirements to the major/minor-party framework itself designed to protect major parties from third-party involvement.

Neither option is likely to please Harrisburg, but the latter just might please those who drafted Pennsylvania's Constitution.

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