Pennsylvania Cases April 08, 2022: In re Edwards

Case Description

OPINION

ABBE F. FLETMAN, J.

Respondent Abu V. Edwards seeks to run for the position of Democratic committee person in the 22 Ward, 11 Division of the City of Philadelphia. Objector Angela Brown Johnson challenged Mr. Edwards's nomination petition as defective because he did not fill out or sign the second page of the petition, and his candidate affidavit was not notarized. After an evidentiary hearing on March 29, 2022, the Court ruled that the unsworn candidate affidavit filed by Mr. Edwards was sufficient to support his candidacy and that the defects on the second page of the petition were amendable. The Court further ruled that if a notarized candidate's affidavit was required, Mr. Edwards had leave to sign his petition in front of a notary before 5 p.m. on March 29, 2022, and cure the other defects, and the Board of Elections was directed to accept an amended petition.

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Ms. Johnson filed a timely notice of appeal of this Court's order on April 6, 2022. For the reasons stated below, this Court requests that the Commonwealth Court affirm the Court's decision.

FACTS

Respondent Abu V. Edwards has served as a Democratic committee person for eight years in the 42 Ward, 25 Division of the City of Philadelphia. (Tr. at 26:9-12). Three years ago, he moved to his current address in the 22 Ward, 11 Division. ( Id. at 26:12-13).

On March 15, 2022, the last day nomination petitions could be filed, Mr. Edwards decided to run to become a Democratic committee person in his new neighborhood. ( Id. at 26:18-20). He collected signatures from his neighbors, informing them of the office for which he was running. ( Id. at 28:25-29:3).

Mr. Edwards filled out the first page of his nominating petition, identifying that he was running to become a "Member of the Ward Executive Committee" of "Ward . . . 22 Division…11." (Democratic Petition of Abu V. Edwards ("Nominating Petition"), Ex. A to Petition to Set Aside Nominating Petition of Abu V. Edwards pursuant to the Election Code, 25 P.S. § 2601 et seq. ("Objector's Petition")). The first page of his Nominating Petition also listed Mr. Edwards's residential address and occupation.

The bottom of the second page of the petition contains a section where the candidate is asked to "print your name below exactly as you wish it to appear on the ballot." ( Id. at p. 2). That section also contains lines for the candidate to sign, provide an address and telephone number and restate the ward and division where he is running. ( Id. ) Mr. Edwards left this portion of the Nominating Petition blank.

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The second page of the Nominating Petition also contains a candidate's affidavit and space for the candidate's signature to be notarized. ( Id. ) Mr. Edwards also left this portion of the second page of the Nominating Petition blank.

Instead, Mr. Edwards signed a form styled, "Candidate Declaration to be attached to Candidate's Affidavit where notarized statement is not available." ( See Nominating Petition at p. 3). The Candidate Declaration bears the legend, "Pennsylvania Department of State Bureau of Elections and Notaries." ( Id. ) The declaration further states: "I declare under penalty of perjury under the law of the Commonwealth of Pennsylvania that the foregoing is true and correct." ( Id. )

Mr. Edwards testified that he obtained the Candidate Declaration from the Philadelphia Board of Elections: "I actually walked into the City Commissioner's Office myself and got the information needed to put myself on the ballot." ( Id. at 29:12-14). Mr. Edwards further testified that he did not provide a notarized candidate's affidavit because he understood that "the petition did not have to be notarized based on the City Commissioner's website and the information documentation that they released to folks who are running for committee person in the City of Philadelphia. And that's on the record on the website as well." ( Id. at 34:22-35:3; see Office of the City of Philadelphia City Commissioners 2022 Instructions for Circulating and Filing Nomination Petitions Members of the Ward Executive Committee (Committee people), found at https://files7.philadelphiavotes.com/announcements/2022_Nomination_Petition_Instructi ons.pdf#_ga=2.44610212.1895340330.1649422895-363614744.1649422895).

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The Philadelphia Board of Elections accepted the Nominating Petition for filing without objection. (Tr. at 30:10-17).

On March 22, 2022, Ms. Johnson filed the Objector's Petition.

On March 29, 2022, after an evidentiary hearing, this Court denied in part and granted in part the Objector's Petition. This Court held that unsworn declarations are an acceptable substitute for a notarized candidate's affidavit under 42 Pa. Cons. Stat. § 6204 (2022). In the alternative, in case the unsworn declaration was found defective, the Court authorized Mr. Edwards to have his petition notarized and refiled with the Board of Elections by 5 p.m. on March 29, 2022.

Additionally, the Court held that, though the bottom half of the second page of the petition and the candidate's affidavit were not filled out, these defects were amendable, and Mr. Edwards should be allowed to amend his petition accordingly.

On April 6, 2022, Ms. Johnson filed this appeal of the Court's decision.

STANDARD OF REVIEW

"Our scope of review in election contest cases is limited to examination of the record to determine whether the trial court committed errors of law and whether the court's findings were supported by adequate evidence." In re Petition to Contest the Primary Election of May 19, 1998 , 721 A.2d 1156 (Pa. Cmmw.1998); see also Dayhoff v. Weaver , 808 A.2d 1002, 1005 fn. 4 (Pa. Cmmw. 2002).

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DISCUSSION

I. Election Code affidavit requirement

The Pennsylvania Election Code requires all candidates for elective office to file with his or her nominating petition an affidavit stating:

1. the candidate's residence, with street and number, if any, and his or her post-office address;

2. his or her election district, giving city, borough, town or township;

3. the name of the office for which he or she consents to be a candidate;

4. that he or she is eligible for such office;

5. that he or she will not knowingly violate any provision of the Election Code, or of any law regulating and limiting nomination and election expenses and prohibiting corrupt practices;

6. that he or she is not a candidate for nomination for the same office of any party other than the one designated in such petition ;

7. if he or she is a candidate for a delegate, or alternate delegate, member of State committee, National committee or party officer, that he or she is a registered and enrolled member of the designated party;

8. that he or she is aware of the provisions of section 1626 of the Election Code requiring pre-election and post-election reporting of campaign contributions and expenditures; and

9. that he or she is not a candidate for an office that he or she already holds, the term of which is not set to expire in the same year as the office subject to the affidavit.

25 Pa. Stat. and Cons. Stat. § 2870 (2022).

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The Election Code does not define "affidavit." See id.

II. The Uniform Unsworn Declarations Act

In 2013, the Pennsylvania Legislature adopted the Uniform Unsworn Declarations Act (the "Act"). 42 Pa. Cons. S. §§ 6201-08 (2022). The Act defines a sworn declaration as "[a] declaration in a signed record given under oath. The term includes a sworn statement, verification, certificate and affidavit." Id. at § 6202. The Act further defines an unsworn declaration as "[a] declaration in a signed record not given under oath but given under penalty of perjury." Id.

The Act provides that an unsworn declaration "has the same effect as a sworn declaration," which again includes affidavits. Id. at § 6204(a).

The Act specifies five exceptions when an unsworn declaration cannot substitute for an affidavit: in connection with (1) a deposition; (2) an oath of office; (3) an oath or affirmation required to be given before a specified official other than a notary public; (4) a declaration relating to real property required or authorized to be recorded; and (5) an oath or affirmation required by 20 Pa. Cons. Stat. § 3132.1 (2022) (relating to self-proved wills). 42 Pa. Cons. Stat. § 6204 (2022). None of these exceptions apply in this case. An election affidavit is not a deposition, an oath of office, an oath or affirmation required to be given before an official other than a notary public, a declaration relating to real estate, or an oath or affirmation relating to a self-proved will.

These exceptions illustrate that the Pennsylvania General Assembly did not intend to exclude the candidate affidavit requirement of the Election Code from the unsworn declarations statute. In the case of an oath of office, the legislature explicitly requires a notarized affidavit. It is unlikely that the General Assembly overlooked the effect of the Unsworn Declaration Act on the Election Code, particularly since it added oaths of office

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to the list of exceptions. Therefore, the decision to not explicitly exclude election affidavits from the general rule allowing unsworn declarations should be read as a decision by the General Assembly allowing such declarations in election matters.

III. Mr. Edwards's Unsworn Declaration

In the case before the Court, the unsworn declaration took the form of a single page within the election packet provided by the Philadelphia Board of Elections and endorsed by the Pennsylvania Department of State. The Candidate Declaration contains the same language mandated by Section 2870 of the Election Code. Mr. Edwards's unsworn declaration attests to the same information covered by the candidate's affidavit The Candidate Declaration states that the candidate declares:

1. his or her residence;

2. his or her election district;

3. the title of the office for which he or she desires to be a candidate;

4. that he or she is eligible for said office;

5. that he or she will not knowingly violate any election law or any law regulating and limiting nomination and election expenses, and prohibiting corrupt practices in connection therewith;

6. that his or her name has not been presented as a candidate by nomination petitions of any other party for the same office;

7. that if he or she is a candidate for any office of a political party he or she is a registered and enrolled member of such party;

8. that he or she is aware of the provisions of Section 1626 of the Pennsylvania Election Code requiring pre-election and post-election reporting of campaign contributions and expenditures;

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9. that he or she is not a candidate for an office which he or she already holds, the term of which is not set to expire on the same year as the office subject to the accompanying affidavit.

This mirrors the criteria laid out in Section 2870. The Candidate Declaration also contains the language required by 42 Pa. Cons. Stat. § 6206, establishing the penalty of perjury for the signatory. Finally, the Candidate Declaration is in writing, which is the same medium as the candidate's affidavit. Therefore, the Candidate Declaration is an unsworn declaration meeting all the requirements to allow for its substitution for the candidate's affidavit.

IV. The Court appropriately exercised its discretion to allow amendment of the Nominating Petition

The purpose of the election law is to implement "necessary measures to prevent fraud and to preserve the integrity of the election process." Pet. of Cianfrani , 359 A.2d 383 (Pa. 1976). However, the code "must 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 a candidate of their choice." Pet. of Ross , 190 A.2d 719 (Pa. 1963).

In cases where the candidate's affidavit has been found defective, it is well within the discretion of the trial court to allow for its amendment. See Pet. of Ross , 190 A.2d 719 (Pa. 1963) (where the court allowed amendment of affidavits notarized in the absence of the signatory); see also In re Nomination Pet. of Driscoll, 847 A.2d 44 (Pa. 2004) (court did not abuse its discretion in allowing candidate to amend residence sworn to in affidavit barring a finding of intentional fraud); Com., State Ethics Commn. v. Baldwin , 445 A.2d 1208 (Pa. 1982) (failure to timely file financial interest statements alongside affidavit was not a fatal, unamendable defect); and In re Nomination Pet. of Fowler , 574 A.2d 127 (Pa. Cmmw. 1990)

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(where the court allowed amendment of circulator affidavit missing signature).

Only where there has been no affidavit affixed ( Pet. of Kloiber , 362 A.2d 484 (Pa. Cmmw. 1976)) or the affidavit has been fraudulently filed ( In re Nomination Petitions of McIntyre , 778 A.2d 746 (Pa. Cmmw. 2001), aff'd sub nom. In re McIntyre , 770 A.2d 326 (Pa. 2001)) has the defect been deemed fatal and amendment impossible. For "falsity in an affidavit alone is insufficient to disqualify a candidate; there must also be a showing that the candidate's attestation to the false information exhibited an intent to deceive the electors ." Matter of Nomination Papers of Mlinarich , 266 A.3d 1189 (Pa. Cmmw. 2021) (emphasis added).

Mr. Edwards followed the instructions given to him by the Board of Elections and completed the Nomination Declaration provided by the Commonwealth. There is no evidence to suggest, nor even argument made, that Mr. Edwards has attempted to subvert the election process or commit a fraud upon the voting public. The affidavit has not been omitted entirely but an unsworn declaration containing the same information has been substituted. Mr. Edwards has filled out, to the best of his ability, the Candidate Declaration page, believing it to be a reasonable and acceptable substitute for the affidavit given the circumstances. While certain sections of his petition were left blank, it is clear from the first page of the Nominating Petition that he is running for the office of committee person in Ward 22, Division 11 and that he lives in that division. It was not error to allow Mr. Edwards to amend his Nominating Petition.

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CONCLUSION

For these reasons, the Court requests that the Commonwealth Court affirm the Court's decision to accept the unsworn declaration of respondent Abu V. Edwards in lieu of a notarized candidate's affidavit and to permit him to amend the second page of his nominating petition to allow him to identify how he wishes to be listed on the ballot. Alternatively, if the unsworn declaration is determined to be inadequate, the Court requests affirmance of its decision to allow Mr. Edwards to amend his petition with a notarized candidate's affidavit.

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