On a recent Friday morning, Nathan Kleinman is leaving Commonwealth Court an unhappy camper. Having been named the country’s first ‘Occupy’ Democrat candidate for higher office, the human-rights activist has just had his 1,500 signatures for the 13th District ballot challenged by Democratic U.S. Rep. Allyson Schwartz, the incumbent.
Knowing he could not afford a long legal battle against Schwartz, Kleinman filed a motion to dismiss the challenge, claiming he was not properly served legal papers by Schwartz’s counsel. He represents himself at the hearing. The motion is denied. And he’s got one option left: Run as a write-in candidate.
“I withdrew my application when it became apparent that the court was not going to accept my motion to dismiss the case,” he later tells PW. “It’s more worth my time to focus on actually helping people and listening to voters’ problems, going to community meetings, feeding the homeless and doing all the things that I do on a daily basis, rather than go to court.” After all, he says, a write-in candidacy is “the Occupy way to go, anyway.”
But because this is Pennsylvania, Kleinman wasn’t exactly off the hook. See, it’s perfectly acceptable for incumbents to ask kicked-out candidates to pay their legal fees.
“It’s a legal option for the campaign to request that Nate Kleinman pay legal fees,” says Rachel Magnuson, Rep. Allyson Schwartz’s chief of staff. “We have not made a decision of whether we will pursue that option or not, but it is an option that the judge is willing to consider.”
Ultimately, the Schwartz campaign decided not to pursue the loser-pays payment option, leaving Kleinman off the hook. (Though they insist they were just following state law protocol.)
“I didn’t think she was going to challenge my petitions at all,” Kleinman says. “I figured that was going to be a bad story for her.”
Kleinman’s not the first insurgent candidate to be kicked off the ballot in Pennsylvania. He certainly won’t be the last.
With its laws regarding challenges to an often hefty ballot-signature requirement and the loser-pays system, Pennsylvania’s election system favors wealthy, politically powerful candidates (moreso than other states)—while deterring their opponents, especially third-party candidates, from even attempting a run for office. Third parties across Pennsylvania have gotten behind State Senate Bill 21—ballot-signature reform—which would put the first dent in Pennsylvania’s oft-anti-democratic system. (A system that led the Helsinki Accords’ Office for Democratic Institutions and Human Rights—the same group that convened in 1975 to improve Western-Soviet relations—in 2006 to call the commonwealth one of the worst spots in the entire world to hold free and fair elections.) Similarly, there are pending lawsuits that would cut out the loser-pays rule being debated in Pennsylvania right now. But most state politicians and judges familiar and satisfied with the status quo aren’t getting near any of it.
Rules of the Game
On the surface, the rules don’t seem so bad. Kleinman originally called Pennsylvania’s congressional registration rules of 1,000 signatures and $150 fee “a pretty low bar,” according to the original Politico report of his candidacy.
But Pennsylvania’s problems with democracy are buried well below the level playing field. Here’s what’s not mentioned on the Pennsylvania Department of State’s website: Anyone can challenge the petitions of anyone else running for office in Pennsylvania. And if you have the cash on hand to follow through, there’s little your opponent can do to stop you.
“Pennsylvania has an electoral system that is extremely biased against third parties and independents,” says Chris Robinson, at-large member of the Philadelphia Green Party City Committee. “This should be obvious to every voter because you never see a third party or independent on the ballot when you go to vote, and that means that the voter is deprived of choices that they should have.”
The Pennsylvania State Charter defines any political, statewide party as an established group which has, in the preceding statewide election, polled at least 2 percent of the “largest entire vote cast for any elected candidate in each of at least 10 counties, and polled a total statewide vote of at least 2% of the largest entire vote cast in the State for any elected candidate.” That language was put into place on June 3, 1937.
If minor candidates are kept off the ballot in the preceding election, it’s impossible for them to have polled at all. And it gets worse.
Let’s say you’re an Independent, Green, Libertarian or whatever else. If your party’s total statewide registration is less than 15 percent at the close of the last election (and it is), you’re considered a minor party. Then, in order to get on the ballot, you need to collect signatures that represent 2 percent of the highest vote-getter in the state’s previous election. For instance, Green Party presidential candidate Jill Stein will likely need 20,601 signatures to run for office in Pennsylvania in the 2012 elections. That number is based on 2 percent of the 2011 vote for David Wecht for Superior Court judge, who received 1,030,004 votes. Robinson says Pa.’s Green Party—anticipating all kinds of challenges—is shooting to get 40,000 nominating signatures. By comparison, President Obama will need only 2,000. As will the eventual Republican nominee.
But 40,000 may still not be enough. In 2006, Carl Romanelli, Green Party candidate for U.S. Senate, was required to turn in an unprecedented 67,000 signatures to get on the ballot because in 2004, a presidential year, then-state Treasurer candidate Bob Casey Jr. earned 3.4 million votes, the most in the state. Romanelli turned in nearly 100,000 signatures, the largest total in state history. He still got the boot—and was ordered to pay his opponents’ legal fees.
That tradition continues despite a statewide investigation that led to several convictions of elected officials, hundreds of thousands of dollars in unpaid legal fees, a federal suit to challenge the constitutionality of the statute, and, perhaps worst of all: one pissed-off Ralph Nader.
The Real Story of Bonusgate
If Harrisburg politicians and government workers weren’t so intent on striking anyone who’s not a member of the two-party establishment off the ballot, a few politicians and aides might not be in jail right now. Or, at least, not for these particular offenses.
But that’s what happened in the case that’s today referred to as Bonusgate. The story is usually told this way: Harrisburg lawmakers voted themselves pay raises in July 2005, which then-Treasurer Bob Casey approved. A few months later, with public pressure mounting, the House and Senate both voted to repeal the raise for themselves. The only vote against: Democratic Rep. Mike Veon of Beaver Falls, who, a year later, lost his re-election campaign.
Shortly after the new class of lawmakers were sworn in the following January, the Harrisburg Patriot-News reported that several Democratic House employees received large bonuses with this accompanying letter: “Since this bonus payment is of an extraordinary nature not widely received by your colleagues, we cannot stress strongly enough the need for you not to discuss this with any other person or member.”
Rep. DeWeese, Majority Leader at the time, pushed the matter aside when asked about the bonuses by the media, calling it an “internal caucus matter.” But House Speaker and now-Philadelphia City Councilman Dennis O’Brien ordered the release of all House salaries. The Senate soon followed suit. What they found was shocking: House Democrats had handed out $2.3 million in bonuses; Republicans shelled $919,000; Senate Democrats gave $41,000 and Senate Republicans: $366,000.
Then-Attorney General Tom Corbett launched an investigation into the matter. It was found that employees of the Legislature had worked on state time and used taxpayer-funded resources for “political activities.” Twenty-five politicians and employees were charged, including Veon, DeWeese and former Philly state Rep. John Perzel. (Veon is in prison; DeWeese and Perzel await sentencing.)
What the fuck were they doing to earn all that extra cash? They were working to get third-party candidates kicked off the ballot. In one of those cases, the third-party candidate was Ralph Nader—consumer advocate and alleged 2000 presidential election spoiler—when he ran for office again in 2004. Democrats had allegedly contracted Pittsburgh law firm Reed Smith to challenge Nader’s petitions, which, due to the illegal taxpayer-paid work, the Commonwealth Court later found to be “rife with forgeries.”
According to an open letter Nader sent to Chief Justice Ronald D. Castille, released last June, the court found 8,976 signatures were struck because the voters were not registered on the day they signed the petition; 7,851 were ruled invalid because of incomplete data; 6,411 were struck because the elector had moved residence between the signing of the petition and when the petition was challenged; 3,513 were found to be “other”; and the reasons go on.
Oddly, Reed Smith was never brought up on charges for the case, claiming they’d worked on the Nader petition on a “volunteer basis” and that the lawyers with the firm weren’t aware the Democratic staffers with whom they were working were doing so on state time. (Oh, and in 2008, Reed Smith donated $15,900 to AG Corbett’s re-election campaign, which was then elbow-deep in the investigation.)
In spite of the Bonusgate revelations, Nader was still handed the $81,102.19 bill.
But he refused to pay, believing he’d been the victim of a state-funded crime.
Then, Reed Smith raised the stakes.
“Reed Smith took their $81,000 judgment from the Pennsylvania courts and they brought it to D.C., where Nader lives,” says Oliver Hall of the Center for Competitive Democracy in D.C., a nonprofit organization dedicated to eliminating the barriers of political participation. “And that’s where they found his bank accounts. And in July 2007, they froze the money in them, saying they should be able to take that money in satisfaction of this $81,000 judgment in Pennsylvania.”
Hall has been representing Nader in the ongoing case since 2005. And Reed Smith is still attempting to pry the money awarded to them from Nader’s D.C. bank accounts.
Neither Nader nor Reed Smith responded to requests for comment.
On April 21, 2010, the D.C. Court of Appeals heard arguments on whether Nader’s money should be released. Almost two years later, there’s still no decision in that case.
Today, Nader still fights Pennsylvania’s loser-pays campaign model—which apparently was modeled after him: According to Ballot Access News—a nonpartisan newsletter that exclusively details ballot issues—he’s the first candidate in Pennsylvania history to be liable for his opponents’ costs. Hall claims the entire practice is unconstitutional. And because of his and others’ efforts, Pennsylvania, the state where American democracy began, has finally prompted a response.
Though Oliver Hall lives in Washington, D.C., he spends a lot of time thinking about Pennsylvania. Because after the Pennsylvania Supreme Court declined to set aside the judgments of Ralph Nader and others, Hall filed his own lawsuit with the Center for Competitive Democracy. It was on behalf of the Pennsylvania Constitution, Green and Libertarian parties in the eastern district of the state, and it challenges the constitutionality of the loser-pays electoral statute. His challenge says the U.S. Supreme Court maintains states cannot shoulder the financial burden of holding elections on either the citizens or the candidates running for office.
In Nader’s letter to Castille, he expressed a similar outlook. “The Jim Crow era ended in large part because the United States Supreme Court struck down such financial burdens in a series of landmark civil rights cases protecting candidate and voter rights,” he wrote. “As the Supreme Court of the United States observed more than 40 years ago, in striking down Virginia’s poll tax, ‘It has long been established that a state may not impose a penalty upon those who exercise a right guaranteed by the Constitution.’”
So, everyone else seems to get it.
“No other state has such a system,” says Hall, adding that the loser-pays system in electoral politics violates the First and 14th amendments. So far, he has been unable to get a hearing on the cases due to odd legal wiggles. For instance, the Pennsylvania Supreme Court has refused to hear his arguments, stating he hadn’t “demonstrated any injury resulting from that statute.” (Uniquely, Pennsylvania is the only state that uses courts to determine if a petition has enough valid signatures, rather than elections officials.)
But the financial requirements, he says, are injurious. “The candidates in question were facing, literally, bankrupting judgments, at least for Carl Romanelli,” he says. “The fact is, nobody can afford $80,000 just to participate in an election.”
Unless you have one of the two party machines behind you. In 2006, Romanelli didn’t. And he’s been paying for it ever since.
“It’s 14:59, and Carl Romanelli’s 15 minutes of fame are up,” then-Senatorial candidate Bob Casey’s press secretary Larry Smar told reporters in September 2006.
Romanelli, a candidate for the Green Party of Pennsylvania, had just received a roundhouse kick off the ballot. He’d recently filed 100,000 signatures—the most in state history—to run his campaign for Senate. In addition to his ballot fail, he was charged $89,000 in legal fees.
And, like Nader, he has yet to pay the bill.
“To date I have not paid a cent,” Romanelli wrote by email to PW in December 2010, “and I do not intend to at any time in the future. I did nothing wrong. Crimes were committed against my right to speak and run for office, so I refuse to pay the attorneys, co-conspirators for the pleasure of being a victim, for a state-funded crime. The legal case against me was pure nonsense, long before the crimes of Bonusgate were known.”
The Commonwealth Court ruled enough signatures invalid that Romanelli came about 9,000 votes short when all was said and done. The legal bills he was forced to pay not only included a lawyer’s fee, but that of a handwriting expert, many of whom are often hired—and charge big bucks—for ballot challenges. In October 2008, the Pennsylvania Supreme Court refused to reopen the case of Romanelli’s payment, even though it’d been proven by then the signature challenge was conducted and paid for by Bonusgate-related activites.
The pastime of kicking indies and non-machine candidates off the ballot doesn’t show any signs of letting up. In addition to Nader’s and Romanelli’s ill-fated candidacies, there’s a whole list of candidates from all over the state who’ve been pried from the ballot due to inconsistencies and have legal fees to deal with.
In 2010, Tea Party candidate John Krupa and Libertarian Marakay Rogers were kicked from the ballot in the race for Pennsylvania governor. Green Party candidate Mel Packer was removed after a challenge from the Joe Sestak campaign. The Libertarian Party alone was faced with $110,000 in legal fees if it did not drop itself from the statewide ballot in 2010. So it did.
Essentially, things have gone downhill over the past 10 years. And Pennsylvania’s third-party candidates have had enough. In 2005, individuals representing the Green, Libertarian, Constitution, America First, Reform, Prohibition, Unified Independent and New American Independent parties formed the Swarthmore-based Pennsylvania Ballot Access Coalition. Their overarching goal: state-level legislative changes that would give Pennsylvanians more choice in their elections.
Introduced by Republican State Sen. Mike Folmer of the 48th District, Senate Bill 21 is better known as the Voters’ Choice Act. Mirroring Delaware’s ballot rules, SB 21 would allow any political party with a total registration equal to “five one-hundredths of one per centum of the total number of voters registered in the entire state as of December 31 of the year immediately preceding the primary election” to declare itself a political party, and, therefore, adhere to the 2,000 signature minimum.
The Pennsylvania Department of State notes that there are currently 8,186,052 registered voters in Pennsylvania. Therefore, in order to qualify for the 2,000-signature minimum, your party would need 4,093 registered voters, not the current 1,227,907.
Folmer says he decided to champion the bill because competition on the ballot brings about more ideas from different places. “Opposition makes you matter as a candidate,” he says. “It makes sure you know your issues.”
The Coalition is pushing for the bill alongside Folmer, Sen. Jeff Piccola (R-15), Sen. Pat Browne (R-16) and Lisa Boscola (D-18), but don’t expect anything too soon. The bill has been stalled for six years in the state Government Committee, because it’s “a challenge to the powers that be,” muses Folmer.
Bob Small, Green Party rep for the Coalition, agrees. He says that of the representatives and senators he’s talked to, no one can find a reason to vote against it. But no one wants to put their name on it, either. He thinks politicians are scared they may be signing their own political death warrants if they publicly support the bill.
A vote on SB 21 would be “hard politics” for Pennsylvania’s senators, says Folmer. By keeping the bill buried in the Senate Government Committee, legislators can tell their constituents they want to vote for it, if only it would come up for a full vote. “God forbid you have more than two people to choose from, that you go in and have to think before you vote,” he says.
“The major parties think we’re siphoning off votes from them, so they’ll try to challenge us any way they can,” Small adds. “We’re having members of all the third parties basically meet with their state representatives and meet with their state senators.”
And if you get rid of the harsh signature requirement, the harsh loser-pays challenges would be less heard of, too.
“If you had the same signature requirement for all candidates,” says Oliver Hall, who also supports SB 21, “that would mean not all minor parties would be faced with this burdensome litigation.”
Rep. Allyson Schwartz even suggests such legislation is a good idea. “Pennsylvania law should look at other states that have less stringent requirements and see if there are other ballot options that should be pursued,” writes Neil Deegan, Schwartz’s political director, in an email.
Hall says that in addition to Folmer’s SB 21, there should be a federal law making sure there can be no more Pennsylvanias. “A federal ballot access statute,” he says, “that would be one of the most obvious things that needs to happen to give our voters more choices. The U.S. Supreme Court could weigh in on this subject.”
A federal statute would allow more candidates for president, he says. Currently, getting on the ballot requires the candidate have a huge staff who understand the differing ballot requirements in each state.
Bottom line: The Supreme Court needs to tell people, regarding the Pennsylvania statute, that there is no legal or rational basis for a third party candidate to prove s/he has the support of tens of thousands of legitimate state residents just to run for office.
“As it stands, if we got a million signatures, they still wouldn’t let us on the ballot right now,” says Small.
As for Kleinman, he’s got his challenge ahead of him: convincing a majority Democrats of the 13th District to write his name in on April 24.
“In some ways, running as a write-in candidate simplifies things,” he says. “It’s the same campaign. I just have more to discuss now because people are interested in what happened in court with the legal wrangling.”
Glass half-full, the challenge might’ve helped him.
“I know people already who were undecided before this happened,” he says, “and now they say I have their full support.”