The Commonwealth Court of Pennsylvania addressed the Petition to Set Aside the Nomination Paper of Caroline Avery for the 1st Congressional District, filed by Objectors David R. Breidinger, Ellen Cox, and Diane Dowler. The Objectors contended that Avery was ineligible to run as a Libertarian candidate due to her earlier candidacy as a Republican, citing Section 976(e) of the Pennsylvania Election Code. The court granted the Petition to Set Aside.
Avery had initially filed nomination petitions as a Republican candidate on March 15, 2022, with signatures from 1,300 registered Republicans. Objector Michael Zolfo challenged the validity of the signatures, claiming 480 were defective. During a subsequent hearing on March 29, 2022, Avery chose to withdraw her candidacy, leading the court to remove her name from the ballot.
On August 1, 2022, Avery submitted her Nomination Paper for the Libertarian Party. Objectors filed their Petition to Set Aside on August 8, 2022, claiming her prior candidacy barred her from running again. At the August 16 hearing, Avery testified about her disillusionment with the Republican Party, stating she voluntarily withdrew her candidacy before the Petition to Set Aside was fully resolved. Her counsel referenced prior court rulings affirming that candidates who withdraw can subsequently file for the general election, citing Packrall v. Quail and In re Cohen for Office of Philadelphia City Council-at-Large as precedents supporting her eligibility.
Objectors contended that Section 976(e) of the Election Code explicitly barred Avery from filing the Nomination Paper, arguing that the case of Packrall was irrelevant because Avery did not withdraw under Section 914. They asserted that Avery misinterpreted the In re Cohen decision, which they claimed did not support her position. Objectors maintained that the majority of Justices in In re Cohen determined that candidates withdrawing under Section 978.4 should not receive the same relief as those withdrawing under Section 914. They emphasized that the principle of liberal interpretation of the Election Code applies only in cases of ambiguity, asserting that both Section 976(e) and In re Cohen were clear.
Section 976(e) prohibits filing nomination papers if a candidate has already filed for another public office or has been nominated for such office, aiming to require candidates to choose between primary and general election routes and to prevent losing primary candidates from filing nomination papers. The provision is known as the 'sore loser' rule. The Supreme Court has occasionally granted exceptions to this rule, as seen in Packrall, where a candidate who withdrew under Section 914 was allowed to file for the general election. In the In re Cohen case, candidate Sherrie Cohen attempted to withdraw from the primary after the deadline but was granted a court order to remove her name under Section 978.4 and later filed for the general election. The trial court ruled her candidacy violated Section 976(e), but the Supreme Court reversed this decision shortly before the election, indicating an opinion would follow. The subsequent Opinion Following the Judgment of the Court clarified that the majority did not endorse the trial court’s reasoning, with Justice Mundy arguing that there was no valid distinction between withdrawals under Sections 914 and 978.4, suggesting that exceptions to Section 976(e) should apply equally to both.
In a dissenting opinion, Chief Justice Thomas Saylor, joined by Justice Kevin Dougherty, expressed concern about extending the Packrall decision beyond Section 914, warning it could allow candidates to alter their strategies mid-primary process. Saylor argued the Packrall exception should only apply to candidates who withdraw during the Section 914 grace period. Justice David Wecht, in a separate dissent, contended that Packrall was incorrectly decided and should be overruled. He criticized Justice Mundy’s opinion as relying on an unsupported judicial exception to the Election Code, asserting that Section 976(e) does not permit exceptions for candidates who filed nomination petitions but did not appear on the primary ballot. Wecht emphasized that while the Election Code should be interpreted liberally, this does not grant the Court authority to act as a super-legislature.
Justice Christine Donohue, in a concurring opinion, acknowledged that their support for the original order was based on expedited proceedings but found Wecht’s interpretation of Section 976(e) compelling for future cases. Avery claimed the OFJC reflected the Court's opinion, arguing its extension of Packrall to candidate Cohen was binding precedent. However, objectors argued that the OFJC only represented two Justices' views, while five others either sought to limit Packrall or overturn it entirely. The majority of Justices in re Cohen concurred that candidates who filed nomination petitions but did not withdraw under Section 914 cannot file for the general election.
The Court also agreed with objectors on how to interpret fractured Supreme Court decisions, referencing Pap’s A.M. v. City of Erie, which indicated that a coherent holding from fragmented opinions requires a majority agreement on the underlying principle. It is permissible to treat the narrowest grounds of a Justice's opinion as precedential only if they align with a majority of the Court's views. Recent cases, In re Adoption of L.B.M. and In re T.S., illustrate that plurality opinions do not constitute binding precedent unless they reflect a majority agreement on a key issue, emphasizing that a decision requires support from at least four Justices.
A five-Justice majority in In re Cohen determined that the Packrall exception does not apply to future candidates withdrawing under Section 978.4, leading this Court to conclude it is not obligated to grant relief to Avery. Consequently, she is prohibited from filing her Nominating Paper according to Section 976(e) of the Election Code. The Court, following the Supreme Court's precedential guidance, grants the Petition to Set Aside and dismisses Avery’s Nomination Papers for the Libertarian Party candidacy for Representative in the General Assembly from the 178th Legislative District. The order, issued on August 23, 2022, directs the removal of Avery’s name from the November 8, 2022 primary ballot and mandates notification to the Bucks County Board of Elections.
