On Monday, Tuesday, and Wednesday of this week, Judge Bernard Coates, of the Dauphin County Court of Common Pleas, heard testimony regarding three petitions to remove independent candidates from the ballot for the city’s November election.
This afternoon, Coates issued rulings granting all three. Two candidates for mayor, Nevin Mindlin and Nate Curtis, and one candidate for city controller, Jennifer Smallwood, were thus stricken from the ballot.
Pending any appeals, the mayoral race will now be a contest between Eric Papenfuse, winner of the Democratic primary in May, and Dan Miller, who accepted a write-in nomination for the Republican party after learning of the petitions last week. “It’s a civic responsibility for me to get on the ballot,” Miller said Friday, in a crafty public-relations coup outside the Bureau of Elections. “Let’s have a choice.”
Regardless of their consequences for the race this fall, Coates’ rulings have very little to offer in the way of clearing up confusion in the election code. With respect to the central questions facing independent candidates—which I discussed yesterday, with the naïve hope that judges would privilege the big picture over the fine print—Coates’ rulings were essentially a non-opinion.
His discussion of Mindlin’s case focused on two topics raised in the hearings. One was the nature of the errors made, and the other was whether they could be amended. (Coates’ ruling on Smallwood was the same, but shorter, because she called fewer witnesses. His ruling on Curtis upheld the petition on the grounds that Curtis failed to meet a residency requirement.)
The errors, by now well known to those following the story, concerned an empty section on the candidates’ nominating papers, set aside for designating a Committee to Fill Vacancies. Both Mindlin and Smallwood left the section blank, which is to say, they did not nominate any such committee. As their testimonies showed, they did so with the apparent approval of the county’s Bureau of Elections, whose job it is to help candidates fill out the forms correctly. (Gerald Feaser, the bureau’s director, testified his office does a “cursory review” and calls candidates to amend “obvious errors”; how Coates squared this with his claim in the rulings, that the candidates’ mistakes were “apparent on the face of the nominating papers,” is beyond me.)
They also apparently left the sections blank deliberately. Believing themselves not to be members of any political party, Mindlin and Smallwood intended to signal to supporters that they were running true independent campaigns. That is to say, a vote for Mindlin would be a vote for Mindlin, and not a vote for a political body that would replace him if he dropped out.
So wherein lies the error? Actually, the term in the suits and in the decisions is not “error,” but “defect,” which shaves off an element of culpability and focuses instead on the surface of things. This may appear forgiving towards the candidates, but in fact it obscures the issue. The candidates had very good reasons for leaving the section blank, pertaining to the sort of campaigns they believed they were running. The legal language, however, does away with all that. The defects are simply there on the page, where they can glare in photocopy after photocopy. Coates agreed with the petitioners that the committee requirement was not a “mere technicality,” and that the absence of one constituted a “fatal defect,” invalidating the candidacies.
The rest of the discussion centered on whether the papers could be amended. This was more or less hopeless from the start, since the signatures had already been gathered. What’s peculiar is that the candidates pursued this possibility. They left the committee section blank in the first place because, as they testified, they didn’t believe they should have one—again, a nominating committee seems like the province of political parties, which the candidates, as independents, eschewed.
A charitable interpretation is that they wanted to indicate that the defect in the papers, if it was a defect, was an honest mistake, and they would make a good faith effort to correct it. It’s interesting to speculate over what the outcome might have been had they stuck more firmly to their aspirations for independence. As it happened, Coates ruled that amendment was impossible.
Coates’ rulings may not be the final word; the Mindlin campaign issued a release shortly after the decision, which stated that Mindlin will “stay in the fight” and may appeal. If the rulings stand, however, what guidance do they give to future independent campaigns?
A revealing document on this question is one that appeared outside of the actual hearings. On Tuesday, Golberg Katzman, the attorneys representing the petition against Mindlin, submitted a memorandum of law to Coates. The memorandum takes issue with the prior cases cited by Herschel Lock, Mindlin’s attorney, and ably dismembers their relevance to the case. But then it adds a peculiar coda: that regarding Mindlin’s candidacy,
nothing prevents him from running as a write-in candidate and he is, thus, not deprived of his opportunity to seek election for the office of Mayor of Harrisburg, nor are his voters deprived of the opportunity to vote for him. In this way, Mr. Mindlin, in fact, can achieve his goal of running as an American citizen unaffiliated with any political party, political group, or political body.
The optimism here can’t possibly be sincere. The difference made by being on the ballot is obviously profound. If Katzman is right, the only practical means to a serious candidacy is membership in one political party or another. This is precisely the notion that independents find corrosive, and it’s a notion that, per Coates’ rulings, remains embedded in the election code.
The favorable way of reading the decisions is to note that they strictly uphold the rule of law, insisting that candidates follow nominating procedures exactly as prescribed. The great irony is that, in part as a consequence of the decisions, the typical nomination process has been flipped on its head. Miller, who followed the major party nomination procedure correctly—and lost, in the Democratic primary—is now on the ballot. The candidates who sought to run as independents, meanwhile, were essentially told to form a party. Apparently they were more independent than the law could tolerate, and as a result, they’re out.
