“Fusion” Nominations Ban, Equal Protection, and the “Magazzu Loophole”

Working Families Party v. Com., 169 A.3d 1247 (Pa. Cmwlth. 2017), 34 EAP 2018 (direct appeal)


Whether Pennsylvania’s prohibition of “fusion” political candidate nominations (i.e., nominating a single candidate for public office by two or more political organizations) violates the equal protection clause of the United States Constitution or the free speech, association and free and equal election provisions of the Pennsylvania Constitution?


This is a direct appeal from the Commonwealth Court’s denial of the Working Families Party’s motion for summary disposition and grant of the Commonwealth’s cross motion involving a constitutional challenge to the provisions of Pennsylvania’s Election Code that prohibit a candidate for a political body from filing nomination papers for an office if he or she has already been nominated by another political organization for that same office in the same election cycle.  Christopher Raab, the runner-up in the 2016 Democratic primary for state representative from the 200th legislative district (Philadelphia, Mount Airy/lower Chestnut Hill), thereafter attempted to file nomination papers for the same office as the candidate of the Working Families Party.  When the Secretary of State rejected his nomination papers based on the fusion prohibition, the Working Families Party and he sought a declaration in the Commonwealth Court that the anti-fusion provisions are unconstitutional.

Pennsylvania’s Election Code purposefully prohibits, with several exceptions for certain local offices including school board magisterial district judges and common pleas judges, the electoral office nomination process known as “fusion” – nominating a single candidate for public office by two or more political organizations.  The ban applies in facially neutral fashion to political parties that nominate their candidates in primary elections, and to political bodies (organizations that fail to reach identified vote thresholds in the previous general election) that nominate their candidates by collecting a required number of signatures of qualified voters. As President Judge Leavitt writing for the Commonwealth Court majority explained, fusion is prohibited so as to prevent the practice of “party-raiding” designed to allow one political faction to dominate both parties in primary elections:

In the 1800s and early 1900s, fusion was a common feature of many states’ electoral systems, including Pennsylvania’s. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 356, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (“Fusion was a regular feature of Gilded Age American politics.”). In 1937, the Pennsylvania General Assembly enacted a comprehensive election statute, known as the Election Code, 25 P.S. §§ 2600–3591, to assure the efficiency and integrity of the electoral process. In re Street, 499 Pa. 26, 451 A.2d 427, 433 (1982). Included therein, as an “essential element of the Legislature’s plan,” are several anti-fusion provisions that forbid a single candidate in a statewide race from appearing on the ballot multiple times on behalf of more than one party. Id. The anti-fusion provisions ended party-raiding, which is “the organized switching of blocks of voters from one party to another in order to manipulate the outcome of the other party’s primary election.” Anderson v. Celebrezze, 460 U.S. 780, 788 n.9, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). Party-raiding results in one political faction dominating both political parties in the primaries. The Election Code’s ban on fusion remains in force today.

169 A.3d at 1251 (footnote omitted).

Although anti-fusion provisions apply equally on their face to political parties and political bodies, the Working Family Party argued that the so-called “Magazzu Loophole,” named after Appeal of Magazzu,  49 A.2d 411 (Pa. 1946), allows major political parties to fuse their candidates in statewide races, but denies political bodies the same opportunity, in violation of equal protection clause of the United States Constitution or the free speech, association and free and equal election provisions of the Pennsylvania Constitution.  In Magazzu, the court held that, although the Election Code prohibits a candidate from being nominated by more than one political party, there is no prohibition on a voter writing in the name of a person he wants to nominate if that person’s name does not appear on the primary ballot of the voter’s party.  Thus, Magazzu, the successful candidate in the Republican primary for state representative, could also receive write-in votes in the Democratic primary for the same office, and because he received more write-in votes than the Democratic candidate, he was the legitimate nominee of both parties without running afoul of the anti-fusion rule.

Challenging the anti-fusion provisions on equal protection grounds, the Working Families Party argued that although the same rule applies to political parties, its application to political bodies is unequal.  As the court summarized the claim:

For a major party to fuse its candidate with another party, a candidate submits a nomination petition with the requisite number of signatures to appear on the primary ballot. Simultaneously, the party or candidate, or both, must launch a write-in campaign for the other major party’s nomination in the primary. If the primary election results in the candidate winning the nomination of both parties, he will appear on the general election ballot as a candidate for both parties. For a political body to fuse, the task is different. The political body’s preferred candidate cannot file a nomination petition as a major party candidate and appear on the primary election ballot. The political body nominates its candidate by filing nomination papers with the Secretary of the Commonwealth on or before August 1st. If the political body wants to have its preferred candidate also appear on the general election ballot as a major party candidate, it must wage a write-in campaign. To do this, it will have to file its nomination papers before the primary election takes place. Working Families’ Brief in Support of Summary Relief at 26. Notably, to sign a political body’s nomination papers, the elector needs to be a registered voter, but he need not be a member of the political body. Working Families contends that its path to fusion is more difficult and, thus, the fusion ban violates equal protection.

169 A.3d at 1255-56 (footnotes omitted).

Rejecting the equal protection claim, the court reasoned that because the respective anti-fusion provisions are facially neutral, strict scrutiny does not apply, and although it may be more difficult for a political body to write in a candidate than it is for a political party, it does not deny equal protection:

Nor does Magazzu treat political parties and political bodies differently. As Working Families concedes, fusion is available to a political party and a political body so long as it is accomplished by write-in votes. To the extent a successful write-in campaign in the primary is harder for a political body candidate to achieve, this is a fortuity arising from factual circumstances, such as finances and organization, external to the statute.

Even assuming, arguendo, that Working Families has identified a disparate impact on political bodies, we reject its contention that this creates a classification that requires a strict scrutiny review. The right to vote is not impacted by anti-fusion provisions of the Election Code. Citizens of the Commonwealth are free to cast their vote for their candidate of choice, by write-in or otherwise. To the extent Magazzu implicates the right to vote, it protects the right by assuring that write-in votes will be counted.


Working Families’ equal protection argument is not based upon the language of the Election Code but, rather, upon the premise that Magazzu has excused political parties from the anti-fusion dictates of the Election Code. This is not a correct understanding of Magazzu, which allows a candidate to win a primary election by write-in votes even though he appeared on the primary ballot for another political party. In In re Street, 451 A.2d 427, our Supreme Court rejected an equal protection challenge to the anti-fusion provisions of the Election Code, and it did so more than 30 years after its holding in Magazzu. Magazzu does not require a re-examination of the holding reached in In re Street.

169 A.3d at 1259 (emphasis in original).

The court went on to reject Working Families’ claims that the fusion prohibition violates the speech and association provisions of the Pennsylvania Constitution and the free and equal elections provisions. As to the former, the court acknowledged that the Pennsylvania Constitution’s provisions provide greater protections of speech and associational rights than the federal constitution, but that it was incumbent on Working Families to explain why the  interpretation of those rights should depart from the federal standard, Working Families failed to do so.  The court held that Pennsylvania’s fusion prohibitions do not violate free speech and association protections under the federal standard because, as proffered by the Secretary of the Commonwealth, it is based on important regulatory considerations, offering protections to the electoral process and to third party candidates.  For example, if Raab’s name were to appear on the ballot as the candidate of the “Democratic Party/ Working Families Party” it would be impossible to disaggregate the votes the Working Families Party received, and therefore impossible to attribute votes to the Working Families Party, thus creating (because of minimum vote tally prerequisites for ballot placement) the potential that  the Working Families Party candidates or other third party candidates could be eliminated entirely from the general election ballot in future elections. Similarly, if fusion were permitted, a political party could “impersonate” a political body:

members of a major political party could, during and after the primary election, circulate nomination papers to name the major party’s nominated candidate as the nominee of a political body without the consent of any members of the political body. The superior organization of a major party would enable it to collect the requisite signatures and submit nomination papers to the Secretary of the Commonwealth faster than the real political body could accomplish those tasks. Commonwealth’s Application for Summary Relief, Marks Declaration ¶ 33 (“[political bodies] have typically waited until shortly before the deadline to submit their nomination papers[.]”). The Secretary must accept the first valid set of nomination papers bearing the name of a political body, and reject any filed later. By winning the race to file, a major party could “impersonate” a political body. This would have the undesirable result of fewer candidates being presented to the electorate in the general election.

  169 A.3d at 1263-64 (footnotes omitted).

The court’s rationale for rejecting the free and equal elections claim channeled its equal protection analysis:

Working Families argues that under Magazzu, supporters of political bodies cannot vote for fused candidates whereas supporters of major party candidates can. However, as addressed above, this is the result of circumstances external to the Election Code. Magazzu established simply that number of votes, even when cast by write-in, determines the winner of a primary election. A candidate’s appearance on the ballot with multiple political designations does not affect voting rights. A voter supporting such a candidate is not in a position superior to the voter casting his ballot for a candidate having a single political designation. In each scenario, the vote is counted once.

169 A.3d at 1265.

A 6-1 en banc Commonwealth Court thus rejected Working Families Party’s challenge.

Judge Cosgrove in dissent seized on the essence of Working Families Party’s equal protection complaint:  The “Magazzu Loophole” allows political parties to effectively fuse candidates through the write-in process, but political bodies do not have that option:

[T]he holding in Magazzu makes an exception for candidates who are nominated by the opposing party through the write-in process. As a result, and pursuant to what Working Families Party calls the “Magazzu loophole,” Majority op. at 1253, a major party may, through the write-in process, nominate a candidate who has also filed petitions seeking the nomination of the other major party.

This avenue is not, however, available to minor parties or political bodies since they do not nominate their candidates in the primary but must do so through a labor intensive gathering of signatures. Under the provisions challenged in this case, these non-major parties are prohibited from nominating someone who has filed nominating petitions for one of the major parties. It is that simple and, as such, is constitutionally infirm.

By way of example, assume Candidate X files petitions seeking the nomination of the Democratic Party in the primary, and prevails. Candidate X also receives more votes (through write in) than all the candidates who filed nominating petitions on the Republican side. Candidate X is now the candidate of both the Democratic and Republican parties in the General Election. But he or she is not, and cannot be, placed on the ballot as the candidate of a minor party or a political body. He or she may be the unanimous choice of such a minor party or political body; he or she may have garnered the requisite number of signatures required of such organizations to secure a spot on the ballot in their name; but the provisions in question in this case prohibit this candidate from receiving this nomination.

The Majority suggests that Magazzu does not inhibit the minor parties/political bodies since they can likewise mount write-in campaigns during the primary and thus seek a major party’s nomination for the candidate of their choice. What the Majority seems to miss, however, is that unlike the major parties, the minor parties/political bodies cannot employ the nominating process to which they are relegated (i.e., collection of the high number of signatures necessary to place their candidate on the general election ballot) for a candidate who had also submitted nominating petitions for one of the major parties during the primary. This distinction is so directly contrary to the concept of equal protection that it cannot survive scrutiny on any level under the Fourteenth Amendment.

169 A.3d at 1266-67(emphasis in original) (footnotes omitted).

Judge Cosgrove’s dissent succinctly tees up the primary issue for the Supreme Court, if the Court chooses to reach the issue.  It may not reach the issue, because the case is a challenge to a decision under the Election Code, and appeals arising under the Election Code must be filed within 10 days, see Pa.R.A.P. 903(c)(1)(ii), whereas Working Families Party’s appeal was filed beyond the 10 day mark but within the usual 30 day appeal period.  The Court has directed the parties to brief this timeliness issue in addition to the substantive issues.

For more information, contact Kevin McKeon or Dennis Whitaker.