IN THE COMMONWEALTH COURT OF PENNSYLVANIA

_________________________

IN RE: NOMINATION PETITION OF JESSE WHITE AS A REPUBLICAN CANDIDATE FOR DISTRICT MAGISTRATE

IN THE JUDICIAL MAGISTERIAL DISTRICT 27-06-03

Appeal of Candidate, Jesse J. White

Appellant _________________________

446 C.D. 2015

_________________________

APPELLANTS PRE-HEARING BRIEF __________________________

Appeal from the March 23, 2015 Order of the

Court of Common Pleas of Washington County, Pennsylvania at No. 2015-1479

__________________________

Counsel of Record for this Party: Jesse J. White, Esquire Pa. I.D. #91152 P.O. Box 384

Cecil, PA 15321 724-743-4444/724-743-4445

jesse@jessewhitelaw.com

TABLE OF CONTENTS

Statement of Jurisdiction .1

Statement of Scope and Standard of Review......1

Order in Question.....2

Questions for Review4

Statement of the Case.......8

Summary of the Argument..9

Argument.....10

I. When a spouse signs a nominating petition on behalf of and at the request of her husband, who has glaucoma which limits his ability to sign his name in a small area, and both individuals have submitted affidavits to this fact, the signature is valid...10

II. When an elector mistakenly writes their house number in a way that could be

construed as 338 instead of 336 or 609 instead of 604, and the Trial Court determined these to be honest mistakes made by the voters identified, and no evidence was presented to suggest the signatures were not otherwise valid, the alleged defect is amendable under Pennsylvania law............11

III. When an elector moves within the same county and judicial district but has not filed a removal notice six months later, the alleged defect is amendable as an extraordinary circumstance as set forth In re Nomination Petition of Vodvarka, 994 A.2d 25 (Pa. Commw. Ct. 2010). ....12

IV. When an electors signature appears on the nominating petitions of two different candidates, both allegedly signed on the same date, but the two signatures immediately preceding the electors signature on one petition are clearly dated the following day, the out of order signature is invalid, thus validating the remaining signature which was not out of order. ...13

V. Where an elector prints and signs his first and middle initial and his

full last name on a nominating petition, and there is no other possible elector with similar initials at the address in question, this a diminutive form of a formal first name and therefore a valid signature using the standard set forth by the Pennsylvania Supreme Court In re Nominating Petition of Gales, No. 7 WAP 2012. ......14

VI. When there is an issue of a duplicate signature on more than one petition, but there are substantial differences in the printing, including the full first name as compared to a shortened version and a different (but each valid) city/township listed on each petition, in the absence of evidence presented by the objector, the standard of In re Nomination Petition of Thompson, 102 Pa.Commw. 110, 120-21, 516 A.2d 1278, 1283 (1984) (Where the court is not convinced that challenged signatures are other than genuine, the challenge is to be resolved in favor of the candidate.) should control. The Court should not be restricted in any way from examining and determining whether the handwriting of one of the alleged duplicates is substantially similar to the electors wife, whose printing also appears on one of the petitions, and if so, the Court can determine that printing is in the hand of another and strike it, therefore making the remaining signature valid. ........15

VII. A County Elections official is not qualified to determine the validity of an

electors signature without a copy of the voter registration card available when he testifies. ........17

VIII. In the absence of any formally published or promulgated rules by a county, the

Commonwealth Court rules for format, content and service of a Petition To Set Aside Nominating Petitions apply, and if they are not followed, the Petition To Set Aside defective and therefore moot. ..........18

IX. A Petition To Set Aside which incorrectly states the number of signatures

obtained is defective and should be dismissed. .......20

Conclusion...21

TABLE OF CITATIONS

Cases In re Fitzpatrick, 822 A.2d 859 (Pa. Cmwlth. 2003)...11 In re Flaherty, 564 Pa. 671, 682, 770 A.2d 327, 333 (2001)..3, 5, 11 In re Gales, (No. 7 WAP 2012)..6, 14-15 In re Johnson, 509 Pa. 347, 502 A.2d 142 (1985)....10, 17 In re Thompson, 102 Pa.Commw. 110, 120-21, 516 A.2D 1278, 1283 (1984)..6, 11, 14-16 In re Vodvarka, 994 .2d 25, 30 (Pa. Commw. Ct. 2010).3, 5, 11-13 Dipietrae v. City of Philadelphia, 666 A.2d 1132 (Pa. Cmwlth. 1995).10 Statutes 25 P.S. 961.901-961.90211 25 Pa.C.S.A. 2872.1(32).2 25 P.S. 29378

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STATEMENT OF JURISDICTION

Appellate jurisdiction is vested in the Commonwealth Court pursuant to 42 Pa.C.S.

764 which provides, in relevant part:

a) GENERAL RULE. --Except as provided in subsection (b), the Commonwealth

Court shall have exclusive jurisdiction of appeals from final orders of the courts of common

pleas in the following cases:

(4)(C) statute relating to elections, campaign financing or other election procedures.

STATEMENT OF SCOPE AND STANDARD OF REVIEW

The Commonwealth Courts appellate scope/standard of review of a challenge to a

candidates nomination is limited to determining whether the trial court's findings of fact are

supported by substantial evidence, whether the trial court abused its discretion or whether the

trial court committed an error of law. In re Hanssens, 821 A.2d 1247 (Pa. Commw. 2003).

2

ORDER IN QUESTION

This appeal seeks appellate review of the Order of March 23, 2015, of the Court of

Common Pleas of Washington County at No. 2015-1479 by the Honorable John C. Reed,

Senior Judge, which reads:

ORDER

AND NOW, this 23rd day of March 2015, upon consideration of the Petition to Set Aside

Nomination Petition of Jesse White as a Republican Candidate, and upon consideration of the

arguments of the parties, it is hereby ORDERED, ADJUDGED and DECREED that the

Petition is GRANTED.

Under Pennsylvania law, a prospective candidate must collect one hundred (100) signatures

of individuals registered and enrolled members of a party to appear as a candidate for district

magistrate on a primary ballot. 25 Pa.C.S.A. 2872.1(32) (2015). According to the testimony,

Mr. White submitted one hundred thirteen (113) signatures. This action was filed which

raised objections to twenty-one (21) of those signatures. By stipulation of the parties, and by

ruling of the Court from the bench, three (3) signatures were determined to be valid. By

further stipulation, and by ruling from the bench of the Court, fifteen (15) signatures were

determined to be invalid. Thus, the Court ORDERED that those fifteen (15) signatures be

struck from the nomination petition.

Upon consideration of the case law, the Court will also declare the remaining three (3)

signatures contested as invalid. The Pennsylvania Supreme Court has held that:

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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 . . .

In re: Nomination of Flaherty, 564 Pa. 671, 682, 770 A.2d 327, 333 (2001). Furthermore, it

has been held that "a signature that declares a residence on the nomination petition that is

different from at declared on the registration card must be stricken." In re: Nomination of

Vodvarka, 994 .2d 25, 30 (Pa. Commw. Ct. 2010) (citing In re: Nader, 580 Pa. 22, 49, 858

A.2d 1167, 1183 (2004)).

Here, two (2) of the signors incorrectly identified their house number on the petition.

While we do not doubt that these were honest mistakes, the Supreme Court has made it clear

in Nader that such signatures must be stricken. The final signor had moved prior to the

general election in 2014, but had yet to update her residence information with the Board of

Elections. Under Flaherty and Vodvarka, that signature must likewise be stricken.

Accordingly, it is hereby ORDERED by the Court that the remaining three (3) contested

signatures be struck from the nomination petition.

As the Court has determined that eighteen (18) of the signatures shall be struck from

the nomination petition, Mr. White has only submitted ninety-five (95) validated signatures

supporting his nomination as a Republican Candidate for District Magistrate. Accordingly, it

is ORDERED Jesse White be removed as candidate for the Republican Party for the office of

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District Magistrate in the Judicial Magisterial District 27-06-03 on the May 2015 Primary

Election Ballot.

BY THE COURT:

John C. Reed, S.J.

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QUESTIONS FOR REVIEW 1. WHEN A SPOUSE SIGNS A NOMINATING PETITION ON BEHALF OF AND AT

THE REQUEST OF HER HUSBAND, WHO HAS GLAUCOMA WHICH LIMITS HIS

ABILITY TO SIGN HIS NAME IN A SMALL AREA, AND BOTH INDIVIDUALS

HAVE SUBMITTED AFFIDAVITS TO THIS FACT, IS THE SIGNATURE VALID?

Suggested Answer: YES.

2. WHEN AN ELECTOR MISTAKENLY WRITES THEIR HOUSE NUMBER IN A

WAY THAT COULD BE CONSTRUED AS 338 INSTEAD OF 336 OR 609

INSTEAD OF 604, AND THE COURT DETERMINED THESE TO BE HONEST

MISTAKES, AND NO EVIDENCE WAS PRESENTED TO SUGGEST THE

SIGNATURES WERE NOT OTHERWISE VALID, IS THE ALLEGED DEFECT

AMENDABLE AS AN EXTRAORDINARY CIRCUMSTANCE AS SET FORTH IN

RE NOMINATION PETITION OF VODVARKA, 994 A.2D 25

(PA. COMMW. CT. 2010)?

Suggested Answer: YES. This is factually distinguished from the scenario set forth by

In re Nomination of Flaherty, 770 A.2d 327 (Pa. 2001)

3. WHEN AN ELECTOR MOVES WITHIN THE SAME COUNTY AND JUDICIAL

DISTRICT BUT HAS NOT FILED A REMOVAL NOTICE SIX MONTHS LATER, IS

THE ALLEGED DEFECT AMENDABLE AS AN EXTRAORDINARY

CIRCUMSTANCE AS SET FORTH BY IN RE VODVARKA?

Suggested Answer: YES.

4. WHEN AN ELECTORS SIGNATURE APPEARS ON THE NOMINATING

PETITIONS OF TWO CANDIDATES, BOTH ALLEGEDLY SIGNED ON THE SAME

DATE, BUT THE TWO SIGNATURES IMMEDIATELY PRECEDING THE

ELECTORS SIGNATURE ON ONE PETITION ARE CLEARLY DATED THE

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FOLLOWING DAY, IS THE OUT OF ORDER SIGNATURE INVALID, THUS

VALIDATING THE REMAINING SIGNATURE WHICH WAS NOT OUT OF

ORDER?

Suggested Answer: YES.

5. IF AN ELECTOR PRINTS AND SIGNS HIS FIRST AND MIDDLE INITIAL AND

HIS FULL LAST NAME ON A NOMINATING PETITION, AND THERE IS NO

OTHER POSSIBLE ELECTOR WITH SIMILAR INITIALS AT THE ADDRESS IN

QUESTION, IS THIS A DIMINUTIVE FORM OF A FORMAL FIRST NAME AND

THEREFORE A VALID SIGNATURE USING THE STANDARD SET FORTH BY

THE PENNSYLVANIA SUPREME COURT IN RE NOMINATING PETITION OF

GALES, NO. 7 WAP 2012?

Suggested Answer: YES.

6. WHEN THERE IS AN ISSUE OF A DUPLICATE SIGNATURE ON MORE THAN

ONE PETITION, BUT THERE ARE SUBSTANTIAL DIFFERENCES IN THE

PRINTING, INCLUDING THE FULL FIRST NAME AS COMPARED TO A

SHORTENED VERSION AND A DIFFERENT (BUT EACH VALID)

CITY/TOWNSHIP LISTED ON EACH PETITION, IN THE ABSENCE OF

EVIDENCE PRESENTED BY THE OBJECTOR, SHOULD THE STANDARD OF IN

RE NOMINATION PETITION OF THOMPSON, 102 PA.COMMW. 110, 120-21, 516

A.2D 1278, 1283 (1984) (WHERE THE COURT IS NOT CONVINCED THAT

CHALLENGED SIGNATURES ARE OTHER THAN GENUINE, THE CHALLENGE

IS TO BE RESOLVED IN FAVOR OF THE CANDIDATE.) CONTROL?

SUBSEQUENTLY, IS THE COURT RESTRICTED IN ANY WAY FROM

EXAMINING AND DETERMINING WHETHER THE HANDWRITING OF ONE OF

THE ALLEGED DUPLICATES IS SUBSTANTIALLY SIMILAR TO THE

ELECTORS WIFE, WHOSE PRINTING ALSO APPEARS ON ONE OF THE

PETITIONS, AND IF SO, CAN THE COURT DETERMINE THAT PRINTING IS IN

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THE HAND OF ANOTHER AND STRIKE IT, THEREFORE MAKING THE

REMAINING SIGNATURE VALID?

Suggested Answer: YES, Thompson should control and no, the Court is not restricted

from examining and/or striking signatures on another petition by comparison.

7. IS A COUNTY ELECTIONS OFFICIAL QUALIFIED TO DETERMINE THE

VALIDITY OF AN ELECTORS SIGNATURE WITHOUT A COPY OF THE VOTER

REGISTRATION CARD AVAILABLE WHEN HE TESTIFIES?

Suggested Answer: NO.

8. IN ABSENCE OF ANY FORMALLY PUBLISHED OR PROMULGATED RULES BY

A COUNTY, DO THE COMMONWEALTH COURT RULES FOR FORMAT,

CONTENT AND SERVICE OF A PETITION TO SET ASIDE NOMINATING

PETITIONS APPLY? IF SO AND IF THEY ARE NOT FOLLOWED, IS THE

PETITION TO SET ASIDE DEFECTIVE AND THEREFORE MOOT?

Suggested Answer: YES.

9. IF A PETITION TO SET ASIDE INCORRECTLY STATES THE NUMBER OF

SIGNATURES OBTAINED AND IS NOT AMENDED PRIOR TO HEARING, IS THE

PETITION DEFECTIVE?

Suggested Answer: YES.

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STATEMENT OF THE CASE

A. Procedural Posture

This is a challenge to the Nomination Papers of a political body candidate for

Magisterial District Judge in District 27-06-03, is brought under 25 P.S. 2937, and is governed

by the Election Code.

Appellants filed a timely objection with the Court of Common Pleas to the political

body candidacy of Jesse White as a candidate for the Republican nomination for Magisterial

District Judge in District 27-06-03. At the hearing, White was removed from the ballot. This

appeal followed.

B. Facts

This is a challenge to the Nomination Papers of Jesse White as a candidate for the

Republican nomination for Magisterial District Judge in District 27-06-03. As a political body

candidate, as that term is defined in the Election Code, Mr. White was required to file 100 valid

signatures of registered electors on Nomination Papers. Mr. White originally filed 113

signatures, of which 18 were invalidated by the decision of the Court of Common Pleas of

Washington County, leaving 95 signatures.

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SUMMARY OF THE ARGUMENT

Of the signatures stricken by the Court, Appellant believes and avers that enough are

either amendable errors or not errors at all and should not be stricken. These alleged errors

include honest mistakes as to one digit of a street address, the use of a diminutive form of a

formal first name, alleged signatures in the handwriting of another (in this case, a spouse with

vision problems), alleged duplicate signatures with different handwriting and variations of name

and address information, and a duplicate signature issue with a twist- the signature on the

petition of the non-challenged candidate appears to be out of order on its face. But for the

Courts ruling on these alleged errors, Mr. White would meet the threshold requirement of 100

signatures to stay on the Republican ballot.

There are also global procedural issues Appellant has raised concerning the applicability

of and compliance with Commonwealth Court rules pertaining to the format and service of a

Petition to Set Aside Nominating Petitions, which would render said petition defective and

effectively eliminate the challenge.

Finally, at the hearing on March 23, 2015, there was confusion between the parties, the

Court and the Washington County Board of Elections as to the methodology used to number the

pages in the Petition to Set Aside Nominating Petitions. As a result, the Elections Office failed to

produce signed voter registration cards for some of the signatures in question. Appellant argues

that in absence of the voter registration cards or any other evidence, Appellee has failed to meet

their burden in proving the authenticity of a signature. As a result, the challenge must fail and

White should be reinstated as a candidate.

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ARGUMENT

I. When a spouse signs a nominating petition on behalf of and at the request of her husband, who has glaucoma which limits his ability to sign his name in a small area, and both individuals have submitted affidavits to this fact, the signature is valid.

Signature(s) in question: Page 1, Line 2 (Pauline Kelly) Page 1, Line 3 (Bertell Kelly)

The elector, Bertell Kelly, has affirmed by an affidavit that he has a medical condition that limits

his abilities and confirmed that his clear intention was to sign the petition. Asking his spouse to do

so on his behalf when he was unable to do so himself prevented him from being able to exercise his

Constitutional rights as a duly qualified elector. A lack of evidence presented by the challenger, such

as a handwriting expert, renders the challenge lacking the proper evidentiary burden. A party

alleging the defects in a nominating petition has the burden of proving such. In re Nomination

Petition of Johnson, 509 Pa. 347, 502 A.2d 142 (1985);

This court has acknowledged that federal law mandates that the rights of the disabled be

preserved and facilitated. Dipietrae v. City of Philadelphia, 666 A.2d 1132 (Pa. Cmwlth. 1995).

The Americans with Disabilities Act imposes an affirmative duty upon the states to assure that all

persons with disabilities are effectively able to exercise their constitutionally guaranteed rights,

including those related to the right to vote. 42 U.S.C. 12132; see Dipietrae. The Federal Voting

Rights Act provides that any voter who requires assistance to vote by virtue of a disability may be

given assistance by a person of the voter's choice. 42 U.S.C. 1973aa-6; see Dipietrae.

Here, the trial court refused to hear testimony in the form of affidavits by the electors as to

whether the elector was impaired or disabled due to a medical condition and, for that reason, had his

wife sign the Nominating Petition on his behalf. Because the trial court's refusal to hear such

testimony may have deprived the signers of their right to elect a candidate of their choice, the trial

court abused its discretion in this regard. This court has previously affirmed this position in regards

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to the rights of elderly and disabled persons extending their voting rights to the signing of a

nominating petition. In re Nomination Petition of Fitzpatrick, 822 A.2d 859 (Pa. Cmwlth. 2003).

Given the health considerations of the Mr. Kelly, who is seventy-nine years old, coupled with his

Constitutional right to participate in the electoral process and the lack of evidence presented to

demonstrate the signature was invalid, both signatures (Page 1, Lines 2 and 3) should be valid.

II. When an elector mistakenly writes their house number in a way that could be construed as 338 instead of 336 or 609 instead of 604, and the Trial Court determined these to be honest mistakes made by the voters identified, and no evidence was presented to suggest the signatures were not otherwise valid, the alleged defect is amendable under Pennsylvania law.

Signature(s) in question: Page 2, Line 12 (Dennis Richardson) Page 3, Line 45 (Bobbi Buggey)

Since the Court believed the mistakes to be honest mistakes, these signatures meet the

definition of an extraordinary circumstance as set forth In re Nomination Petition of

Vodvarka, 994 A.2d 25 (Pa. Commw. Ct. 2010), in which the standard of In re Nomination

Petition of Thompson, 102 Pa. Commw. 110, 120-21, 516 A.2d 1278, 1283 (1984) (Where

the court is not convinced that challenged signatures are other than genuine, the challenge is

to be resolved in favor of the candidate.)

This approach should be applied as compared to the factually narrow ruling of In re

Nomination of Flaherty, 770 A.2d 327 (Pa. 2001), which was limited in scope to the sole

issue of whether an electors signature was valid despite the failure to submit a removal

notice no later than 30 days preceding an election. (25 P.S. 961.901-961.902). In effect, it

is a situation of electoral apples and oranges; the two cannot be realistically compared to one

another.

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The holding in Flaherty was limited to a specific set of circumstances, where the

addresses in question were previous addresses of the elector who knowingly and intentionally

wrote them on the nominating petition. But in the instant case, there is no question as to

where the electors actually lived; the credibility of the electors is confirmed by the trial

courts determination that they were honest mistakes. As a result, the validity of the

signatures should not be judged by the Flaherty standard, but by the standard set forth in

Thompson: Where the court is not convinced that challenged signatures are other than

genuine, the challenge is to be resolved in favor of the candidate.

In the instant case, the trial court judge made it quite clear that he considered the

signatures to be genuine, and because no evidence was introduced to suggest the signatures

could belong to anyone other than the electors in question, they should therefore be deemed

valid.

III. When an elector moves within the same county and judicial district but has not filed a removal notice six months later, the alleged defect is amendable as an extraordinary circumstance as set forth In re Nomination Petition of Vodvarka, 994 A.2d 25 (Pa. Commw. Ct. 2010).

Signature(s) in question: Page 4, Line 14 (Summer Steele)

This issue can be resolved based on the very facts and language of the Vodvarka case.

Unlike the pre-codified version of the Voter Registration Act, it is no longer required that

the elector execute the removal notice at the first election that follows a move within the

county. However, a failure to complete a removal notice well over a year cannot, in itself, be

considered an extraordinary circumstance The Court will accept four of Candidates

proffered rehabilitations of signatures from electors who moved within the past year. In re

Nomination Petition of Vodvarka, 994 A.2d 25, 32-33 (Pa. Commw. Ct. 2010).

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In the instant case, the elector had moved in September 2014, as affirmed by a sworn

affidavit, which was only six months prior to signing the nominating petition in March 2015.

This would clearly appear to be an amendable defect and therefore a valid signature because

the trial court misapplied the precedent set by Vodvarka of permitting the court to accept

signatures from electors who used their new address less than one year after a move, whether

they submitted a removal notice or not.

IV. When an electors signature appears on the nominating petitions of two different candidates, both allegedly signed on the same date, but the two signatures immediately preceding the electors signature on one petition are clearly dated the following day, the out of order signature is invalid, thus validating the remaining signature which was not out of order.

Signature(s) in question: Page 6, Line 4 (Anthony Neiderer)

In this instance, the signature of the elector was stricken from Mr. Whites petition as

being a duplicate signature. White argued at trial that because the duplicate signature on the

petition of Traci McDonald-Kemp, one of the other candidates, was out of order. The

McDonald-Kemp signature was allegedly signed 3/09/15, but at least three signatures

immediately preceding it were dated 3/10/15.

The trial judge stated that he could not examine the validity of the signature on the

McDonald-Kemp petition because her petitions were not being challenged. This rationale

clearly tilts the challenge process, which is designed to favor the intent of the voter and the

validity of a candidate, in favor of the challenger. Theoretically, a candidate could follow his

or her opponent from door to door and forge the name of every elector the first candidate had

sign his or her petition, or get signatures that may be completely defective when examined

objectively. The only way a candidate could effectively shield his or herself from a tactical

challenge would be to review and preemptively challenge the signatures of their opponents.

This approach would flood the courts at a time when the process is already expedited.

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Instead, a common sense approach is required. When somebody challenges an electors

signature as being a duplicate, the very nature of the challenge requires a factual

determination to be made. If one signature is facially valid and the other signature is facially

invalid, then the invalid duplicate must not be accepted, which makes the remaining valid

signature acceptable because it is no longer a duplicate.

If the standard set forth in Thompson is true (Where the court is not convinced that

challenged signatures are other than genuine, the challenge is to be resolved in favor of the

candidate.), then the court must make a factual determination as to the credibility and

validity of the signatures in question. If the validity of one of the alleged duplicates cannot be

verified or would be otherwise invalid because the date is out of order, the court should apply

the Thompson standard and resolve the challenge in favor of the candidate.

The comparative nature of the challenge demands a factual determination on credibility

be made by the court; if the challengers signature is not credible for whatever reason (such

as the dates being out of order), then the court should rule in favor of the candidate. To refuse

to examine the global validity of both signatures creates a fundamentally unfair scenario in

which dramatically favors the challenging party and subjects the challenged candidate to an

unfair comparison with a disproportionate level of scrutiny. In other words, the challenged

candidate can really only lose, not win.

V. Where an elector prints and signs his first and middle initial and his full last name on a nominating petition, and there is no other possible elector with similar initials at the address in question, this a diminutive form of a formal first name and therefore a valid signature using the standard set forth by the Pennsylvania Supreme Court In re Nominating Petition of Gales, No. 7 WAP 2012.

Signature(s) in question: Page 6, Line 14 (Ronald E. Nowak)

15

In this instance, the elector, Ronald Nowak, used the initials R.E. Nowak in both the

signed and printed name portions of the petition. He did use cursive writing in the

appropriate area and printing in the appropriate area on the petition. The court struck the

validity of the signature because it used initials instead of the full name.

The opinion in Gales made it clear that a diminutive form of a formal first name is

permissible, and there was no evidence presented at trial to indicate, or even suggest, that the

elector was anyone other than Ronald E. Nowak. Taking in conjunction with the standard set

forth in Thompson (Where the court is not convinced that challenged signatures are other

than genuine, the challenge is to be resolved in favor of the candidate.) the signature should

be deemed valid if there is a defect, it be amendable.

VI. When there is an issue of a duplicate signature on more than one petition, but there are substantial differences in the printing, including the full first name as compared to a shortened version and a different (but each valid) city/township listed on each petition, in the absence of evidence presented by the objector, the standard of In re Nomination Petition of Thompson, 102 Pa.Commw. 110, 120-21, 516 A.2d 1278, 1283 (1984) (Where the court is not convinced that challenged signatures are other than genuine, the challenge is to be resolved in favor of the candidate.) should control. The Court should not be restricted in any way from examining and determining whether the handwriting of one of the alleged duplicates is substantially similar to the electors wife, whose printing also appears on one of the petitions, and if so, the Court can determine that printing is in the hand of another and strike it, therefore making the remaining signature valid.

Signature(s) in question: Page 3, Line 58 (Jon Hogue)

In this situation, a duplicate signature was alleged of an elector named Jon Hogue, who

allegedly signed the nominating petition of both Jesse White and Traci McDonald-Kemp

(Page 12, Line 1 of the Kemp petition) on March 9, 2015. The White petition was also signed

by Jons wife, Jennifer Hogue, who lives at the same address as Jon Hogue. Jennifer Hogue

did not sign the McDonald-Kemp petition.

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During the hearing, White attempted to have Mr. Hogues signature stricken from the

McDonald-Kemp petition, which would mean the signature on Whites petition would not be

a duplicate. A plain examination of the two petitions shows obvious differences. The White

petition uses the printed name Jon Hogue and the township of Cecil, while the

McDonald-Kemp petition uses the printed name Jonathan Hogue and the city of

Canonsburg. Although the signatures are similar, the printed writing is not, and the printing

on the McDonald-Kemp petition bears more than a passing resemblance to the writing of

Jennifer Hogue.

The court refused to consider this evidence in claiming they could not strike the signature

from the McDonald-Kemp petition because the McDonald-Kemp petition was not

challenged. By refusing to examine the totality of the evidence to determine validity, the trial

court erred in not striking the McDonald-Kemp signature, making the White signature valid.

If the standard set forth in Thompson is true (Where the court is not convinced that

challenged signatures are other than genuine, the challenge is to be resolved in favor of the

candidate.), then the court must make a factual determination as to the credibility and

validity of the signatures in question. By necessity, this requires examining signatures on all

necessary petitions when dealing with the issue of duplicates. If the court determines that the

writing on one of the signatures is in the hand of another, it must be stricken and the

remaining signature deemed valid. Although only one candidates petition is being

challenged, the very nature of a challenge demands a comparison.

This is an issue of simple fairness. Although challenges are typically not filed by the

opposing candidate, they are universally challenged directly on behalf of the opponent at his

or her request. In the instant case, Traci McDonald-Kemp felt strongly enough about the

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outcome to leave her post as an Assistant District Attorney to sit in the courtroom and watch

the proceedings. If a candidate is involved in a process that requires a comparison between

nominating petitions, the law should certainly expect the challenging candidates house to be

in order, and to suffer the consequences if it is not.

VII. County Elections official is not qualified to determine the validity of an electors signature without a copy of the voter registration card available when he testifies.

Signature(s) in question: Several, but without the completed transcript of the hearing for reference purposes, the exact list of signatures cannot be provided at this time.

At the 3/23/15 hearing, there was confusion between the parties, the court and the

Washington County Elections Office as to the methodology for numbering the petitions in

the Petition to Set Aside. In preparing for the hearing, Director of Elections Larry Spahr did

not bring all of the proper documents to court because Appellees numbered Jesse Whites

petitions in a way that did not correspond to the understanding held by the Elections Office.

As a result, a determination on the validity of some signatures was made without any factual

basis of comparison, which should not have occurred.

Without factual evidence to draw upon for purposes of testimony, and in the absence of

any other evidence presented, such as a handwriting expert, objector has failed to satisfy their

burden of proof and the signature is valid. A party alleging the defects in a nominating

petition has the burden of proving such. In re Nomination Petition of Johnson, 509 Pa. 347,

502 A.2d 142 (1985).

In this case, the burden was simply not met in some instances because the signature cards

were not all presented and offered into evidence and signatures could not be corroborated any

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other way. Therefore, all signatures which did not have valid signature cards for comparison

should be deemed valid.

VIII. In the absence of any formally published or promulgated rules by a county, the Commonwealth Court rules for format, content and service of a Petition To Set Aside Nominating Petitions apply, and if they are not followed, the Petition To Set Aside defective and therefore moot.

Signature(s) in question: ALL

Prior to testimony in the lower court, Appellant presented a Motion to Dismiss the Petition to Set

Aside Nominating Petitions, which was denied.

The Petition to Set Aside Nominating Petitions was served on Appellant via Federal Express on

March 18, 2015. Service consisted of a paper copy of the Petition, as well as two pages labeled

Election Spreadsheet Directions.

The Spreadsheet Directions set forth the process by which a Nominating Petition shall be

challenged by Order of the Commonwealth Court of Pennsylvania.

Paragraph 5 says:

If filing the objection petition in paper format:

a. Objector shall attach to the objection petition as an exhibit a printed copy of the spreadsheet printed on 8 x 14 inch paper (emphasis added), with all grid lines showing and column headings appearing on each printed sheet, and a printed copy of the key to the challenge grounds abbreviations (challenge codes key).

b. In addition, Objector shall file two separate digital media devices (CD or USB flash drive) each containing an electronic version of the spreadsheet and challenge codes key.

The Election Spreadsheet Directions clearly states: When individual elector signatures

are challenged the objection petition must be accompanied by a spreadsheet as specified in the

Courts order and the directions below. Petitioner never received a copy of the spreadsheet on 8

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x 14 inch paper; all that was included was 8 x 11 inches, which clearly does not conform to

the technical requirements of the Commonwealth Court.

Appellant never received any digital media devices from Appellees of any sort, and there

is no evidence any such media was filed with the Court; as such, Appellees have failed to comply

with the clearly and specifically enumerated requirements for a Nominating Petition challenge.

The lack of proper form has made it difficult, if not impossible, for Appellant to properly

defend this technically deficient challenge. Appellant asked for the location of any Washington

County rule that would supersede the rules of the Commonwealth Court. By enclosing a copy of

the Commonwealth Court standard, it is reasonable to assume that the filing party intended that

standard to be applied. If said standard is applied, the Nominating Petition Challenge is defective

on its face and cannot proceed.

In this case, Appellant specifically asked the court, opposing counsel and the Washington

County Director of Elections for any local rules that would overrule the Commonwealth Court

rules. None was provided, which strongly suggest that none exist. As a result, especially given

the fact that election cases are to be appealed directly to the Commonwealth Court, those rules

should be applied and compliance by a challenging party should be strictly required as not to

infringe upon the rights of the challenged candidate.

The Commonwealth Court rules should apply to ensure uniformity and provide a framework

for the candidate to respond. A failure to comply with these rules, absent any evidence of county-

specific rules to the contrary should render a Petition To Set Aside defective.

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IX. A Petition To Set Aside which incorrectly states the number of signatures obtained is defective and should be dismissed.

Signature(s) in question: ALL

The Motion to Set Aside filed by Appellees indicated that Appellant filed with 117 valid

signatures. At the hearing, that number was verbally changed to 113 by Appellees counsel.

As a result, the Motion to Set Aside was improperly plead which made it difficult to properly

prepare to defend in court. In a situation where time is of the essence and every signature

counts, giving a challenger a false sense of security as he or she prepares a legal defense puts

the candidate at a marked disadvantage.

The Appellees each signed a Verification form stating the information contained in their

Petition to Set Aside to be true and accurate, yet the information was not accurate and the

Petition was never amended prior to hearing. Imagine the chaos that could ensue if

nominating petition challenges could play fast and loose with the mathematics of how many

signatures needed to be made valid in order for a candidate to stay on the ballot. Four

signatures may not seem like a lot, but in the instant case, four signatures either way will

likely determine whether Jesse White stays on the ballot or not.

Although the argument is admittedly quite technical, the very nature of the proceeding at

hand is mired in technicalities. If the burden is on the candidate to obtain valid signatures or

be subjected to heightened scrutiny, the challenging party should face the same burden in

preparing their challenge. It is folly to suggest that a defective Petition to Set Aside should be

permitted to set aside an alleged defective nominating petition.

Given the expedited nature of petition challenges, objector has an obligation to be

accurate in their Petition to Set Aside in order to ensure the candidate is accurately prepared.

By pleading that candidate submitted X number of signatures when it reality it was X minus

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4, candidate is being given a false sense of security when preparing to defend the challenge.

Either the Petition To Set Aside should be ruled defective, or the number of signatures plead

by objector should be the starting number from which to work backwards.

CONCLUSION

For all these reasons, the Appellant respectfully requests that this Honorable Court find

that Jesse White be reinstated as a candidate for Magisterial District Judge in District 27-06-03

for the May 19, 2015 Republican Primary Election.

Respectfully submitted,

___________________________________ Jesse J. White, Esquire Pa. I.D. #91152

P.O. Box 384 Cecil, PA 15321

724-743-4444/724-743-4445 Appellant

CERTIFICATE OF SERVICE

I hereby certify that the within Appellants ' Pre-Hearing Brief has been served by the

methods indicated to the follqwing on this, the 1st day of April, 2015:

First Class Mail, Postage Prepaid:

Washington County Elections Office Larry Spahr, Director 100 W. Beau Street #206 Washington, PA 15301

David Montgomery, Esq. Montgomery Law Firm LLC 100 Ross Street, Suite 510 Pittsburgh, PA 15102

The Honorable John C. Reed Washington County Courthouse 1 South Main Street Washington, PA 15301

Washington County Prothonotary 1 S. Main Street, Suite 1001 Washington, PA 15301

Respectfully submitted,

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