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Just days before Tuesday’s primary election, a state judge ruled that the city can move ahead with a change in vote-counting rules that drew a legal challenge.
The decision affects thousands of Democratic and Republican ward committee positions in neighborhoods around Philadelphia that are being contested in the election.
The Board of Elections decided in February to require write-in candidates for those committee slots to get at least 10 votes to be elected. Critics say that’s impossible in many areas that have few registered Republicans, and West Philly Republican ward leader Matt Wolfe sued on behalf of three candidates to block the change.
A Court of Common Pleas judge initially ruled for Wolfe in late April, saying state law only requires the winner of a ward committee race to get the most votes — even if it’s just one or two.
But lawyers for the city and the Republican party appealed, and on Friday, Commonwealth Court Judge Patricia McCullough overturned the lower court’s order. She said it was too early to sue, because the Board of Elections hasn’t enforced the new rule yet and no candidates have been blocked from taking office.
“The claims are based on anticipated future events that may never occur,” she wrote. “No concrete Board action has imposed hardship… that would warrant judicial intervention at this juncture.”
Another legal challenge coming
McCullough’s decision is likely not the last word in the matter, however. Wolfe, an election lawyer who previously ran for City Council, said he’ll go to court again as soon as the Board of Elections declines to certify a write-in candidate for winning with fewer than 10 votes.
Election results must be certified by June 8, but the board will likely act before then, Wolfe said.
“[I] certainly plan to re-file, probably the day that the Commissioners certify, presuming that they don’t re-read the Election Code and do it the right way,” he said.
The dispute is driven by an apparent conflict between different state election laws.
Lawyers for the city and Philadelphia’s Democratic and Republican city committees point to a law governing write-in votes for various primary races. It says that for a candidate to win, their vote total must at least equal the number of petition signatures they’d need to get on the ballot for that office.
For ward committee, that’s 10 signatures.
Wolfe, however, cites another section of law on party positions specifically. It says those candidates only need a “plurality of the votes” to be elected — that is, just the most votes, regardless how many that is.
The difference is that the ward committee elections aren’t really primaries, but are actually “final elections” that definitively pick winners, he and others say. That arguably means they shouldn’t be governed by the law on primaries generally.
A proxy battle for party control
The write-in vote policy has been repeatedly litigated over the years in part because it plays a role in determining who controls ward committees, and thus controls the city party apparatuses and influential candidate endorsement decisions.
It’s unclear why the Board of Elections decided to change its policy this year, after following the plurality rule for decades.
Wolfe contends that party leaders support the move because it would make it harder for independent candidates to get a ward committee spot and influence party decisions.
“Republican City Chairman Vince Fenerty has joined with Democratic Chairman Bob Brady to try and make it harder to be elected a Committeeperson,” he wrote in an email newsletter on Sunday. “It seems [Fenerty] is more concerned with getting reelected chairman than he is in building a stronger Republican Party in Philadelphia.”
Due largely to the low number of registered Republicans in Philadelphia, many of the city’s 66 Republican ward committees have multiple vacant positions or no members at all. Enforcement of the new rule could result in even more vacancies, Wolfe said.
Fenerty previously declined to comment on the lawsuit, as did the city’s Law Department, the Board of Elections, and a lawyer for the Republican City Committee. A lawyer for the Democrats did not respond to a request for comment.
The board’s decision coincides with an effort by Wards that Work, a coalition of progressive groups, to combat political apathy and fill more slots on Democratic ward committees, which also have vacancies in many neighborhoods.
They have been encouraging residents to collect petition signatures to get on the ballot, or alternately to run write-in campaigns.
Democrat City Committee chair Bob Brady told the Inquirer he welcomes the wave of new candidates, while acknowledging the party has been paying for mailers to support incumbent committee members who face challenges from the progressive candidates.
