OPINION BY PRESIDENT JUDGE LEAVITT.

Working Families Party, Christopher M. Rabb, Douglas B. Buchholz, and Kenneth G. Beiser (collectively, Working Families) have filed a petition for review in this Court's original jurisdiction2 against the Commonwealth of Pennsylvania; Pedro A. Cortes, Secretary of the Commonwealth of Pennsylvania; and Jonathan M. Marks, Commissioner of the Department of State's Bureau of Commissions, Elections, and Legislation (collectively, Commonwealth), challenging, as unconstitutional, several provisions of the Election Code3 that prohibit the nomination of a single candidate for public office by two or more political organizations. Such a nomination process is called "fusion."4 Before the Court are the parties' cross-applications for summary relief. Concluding that the anti-fusion provisions of the Election Code are constitutional under the United States and Pennsylvania Constitutions, we deny Working Families' application for summary relief and grant the Commonwealth's application for summary relief.

Background & Procedural History

The undisputed facts of this case are as follows. In the April 26, 2016, primary election, Christopher M. Rabb was nominated by the Democratic Party as its candidate for Representative of the General Assembly's 200th Legislative District.5 In July 2016, approximately three months after the primary election, Working Families circulated papers to nominate Rabb as its candidate in the general election for Representative of the 200th Legislative District. On July 27, 2016, Working Families submitted Rabb's nomination papers with 958 signatures of registered voters in the 200th Legislative District, a Candidate Affidavit, Rabb's Statement of Financial Interests, and a check in the amount of $100 to Commissioner Marks' office at the Department of State.

Rabb altered his Candidate Affidavit by striking through the following text:

Petition ¶ 25; Answer ¶ 25; Commonwealth's Application for Summary Relief Ex. 4. Rabb further altered his Candidate Affidavit by adding the following italicized text:

Working Families' Application for Summary Relief ¶ 15; Commonwealth's Application for Summary Relief ¶ 15.

Commissioner Marks refused to process Rabb's nomination papers for two reasons. First, Rabb had "altered the form of the statutory candidate affidavit." Second, "[Rabb's] name was already presented by nomination petitions in the General Primary, which precludes [him] from seeking the nomination of a political body pursuant to 25 P.S. § 2911(e)(5)."6 Commonwealth's Application for Summary Relief Ex. 6.

On August 5, 2016, the Working Families Party, Rabb, and two voters residing in the 200th Legislative District, Douglas Buchholz and Kenneth Beiser, challenged Commissioner Marks' decision with the instant lawsuit. Working Families' petition for review included two counts. Count I requested a declaratory judgment that the anti-fusion provisions of the Election Code are unconstitutional under the United States and Pennsylvania Constitutions. Count II requested a writ of mandamus directing the Commonwealth to process Working Families' nomination papers for Rabb and to prepare a general election ballot that showed Rabb's nomination by both the Democratic Party and Working Families Party for Representative to the General Assembly for the 200th Legislative District.

Concluding that there were no disputed issues of fact, on August 25, 2016, this Court directed the parties to file applications for summary relief with supporting briefs. Working Families filed its application for summary relief on September 2, 2016, and the Commonwealth filed its application on September 7, 2016. On September 13, 2016, a panel heard oral argument.

Following oral argument, this Court denied Working Families' application for summary relief on Count II and granted corresponding relief to the Commonwealth. The Court held that mandamus was not the appropriate vehicle for testing the constitutionality of a statute and, thus, dismissed Count II of the petition for review. Working Families Party v. Commonwealth, (Pa. Cmwlth., No. 435 M.D. 2016, filed September 30, 2016), slip. op. at 3-4, 2016 WL 5845824.7 Argument on the parties' applications for summary relief on Count I of the petition for review seeking declaratory relief was heard in February 2017, before this Court en banc.

In Count I, Working Families asks this Court to declare that the anti-fusion provisions of the Election Code violate the 14th Amendment to the United States Constitution, and Article I, Sections 5, 7, and 20 of the Pennsylvania Constitution. The Commonwealth responds that the anti-fusion provisions constitute a valid exercise of the legislature's power to regulate elections under the United States and Pennsylvania Constitutions.

Historical Background

We begin with a review of the relevant statutory provisions and case law precedent. 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.8

The Election Code divides political organizations into two classes: political parties and political bodies. Section 801 of the Election Code, 25 P.S. § 2831.9 The political party designation is further divided into "major political parties" and "minor political parties." Section 912.2 of the Election Code, 25 P.S. § 2872.2.10 This Court has explained the distinction between a "political body" and a "political party" as follows:

In re Zulick, 832 A.2d 572, 574 n.7 (Pa. Cmwlth. 2003) (citations omitted). In short, a political party uses the primary election to nominate its candidate; a political body nominates its candidate by collecting the requisite number of signatures from electors, of any party or no party, and filing nomination papers with the Secretary of the Commonwealth.

The anti-fusion provisions of the Election Code prohibit political parties and political bodies from nominating candidates already nominated by another political organization. Those anti-fusion provisions relevant to political bodies follow.

Section 951(e)(5) of the Election Code requires a political body candidate to file an affidavit with the Commonwealth stating

25 P.S. § 2911(e)(5). Likewise, the Secretary of the Commonwealth is required to reject nomination papers

Section 976 of the Election Code, 25 P.S. § 2936 (applicable to both political bodies and political parties). Finally, the Election Code prohibits a political body from filing a substitute nomination certificate for a candidate already nominated by another political party. Section 980 of the Election Code states:

25 P.S. § 2940. Significantly, the Election Code has identical provisions prohibiting political parties from engaging in fusion. See Sections 91011 and 97912 of the Election Code, 25 P.S. §§ 2870, 2939.

Working Families concedes that the Election Code prohibits fusion of candidates in statewide races and makes no exception for major political parties. However, Working Families maintains that the so-called "Magazzu Loophole," named after our Supreme Court's decision in Appeal of Magazzu, 355 Pa. 196, 49 A.2d 411 (1946), allows major political parties to fuse their candidates in statewide races, such as those for General Assembly and United States Congress, but denies political bodies this opportunity.

Appeal of Magazzu

In the primary election of 1946, Pietro A. Magazzu was a Republican candidate for the office of representative in the General Assembly. He was defeated by another Republican candidate. The Democratic ticket contained one candidate, Milo B. Serfas, and Magazzu defeated Serfas by write-in votes. The county board of elections refused to certify Magazzu as the nominee of the Democratic Party; instead, it certified Serfas. The issue presented to our Supreme Court was whether "a candidate who had filed nominating petitions as a member of one party [was] ineligible to receive the nomination of another party for the same office by `write-in' or legal ballots or votes[.]" Magazzu, 49 A.2d at 411.

The Supreme Court recognized that the Election Code forbids a candidate from being nominated by more than one political party. However, the Court clarified that:

Id. at 412. The Court also noted that the opportunity for write-in votes on a paper ballot is guaranteed by Section 1002(b) of the Election Code, which states:

25 P.S. § 2962(b). Similarly, Section 1216(e) provides a mechanism for write-in votes where voting is done by machine:

25 P.S. § 3056(e).13 The Supreme Court held that Magazzu belonged on the general election ballot as the Democratic Party candidate for state representative.

In Magazzu, one candidate by that name appeared on the general election ballot with a single party designation. Working Families notes that a candidate can win a major party's nomination in the primary and also win another party's nomination by means of write-in votes. In that case, the candidate will appear on the general election ballot as nominated by both major political parties. Working Families asserts that this happens with some regularity.14

The Commonwealth responds that Working Families overstates the significance of our Supreme Court's holding in Magazzu. It contends that Magazzu simply established that the Election Code allows a voter to write in "the name of a person for whom he desires to vote if such name is not printed on the ballot of the political party of which the voter is a member" and to expect that vote to be counted. Magazzu, 49 A.2d at 412. Magazzu did not create a "loophole" from the anti-fusion provisions of the Election Code. In any case, the Magazzu holding applies equally to major political parties, minor political parties, and political bodies. We agree.

The holding in Magazzu does not authorize the two major parties to nominate a single candidate for statewide office. Rather, Magazzu stands for the simple proposition that in a primary election, a voter may write in the name of any person "not printed on the ballot of the political party" to which the voter belongs. Id. The write-in vote allows citizens to choose a candidate who does not have the support of the party establishment. A major party candidate can win his party's primary election and also win the other party's primary with write-in votes. In that case, the individual will appear on the ballot as the candidate for the two major parties in the general election. However, a political body candidate who has filed the requisite nomination papers prior to the primary election can also win the write-in vote for a major party in the primary and, thus, appear on the general election ballot as the candidate of a major party and of a political body.

The anti-fusion provisions of the Election Code forbid the nomination of one candidate by more than one political organization for the same office. However, these provisions have nothing to do with the ability of voters to nominate a candidate by write-in vote. The potential for fusion by a successful write-in campaign is not limited to major party candidates. The same may be accomplished by a political body. We reject Working Families' contention that Magazzu permits what the anti-fusion provisions of the Election Code prohibit.

Alleged Constitutional Violations

With this background, we turn to the constitutional challenge Working Families has lodged against Sections 634, 910, 951, 976, 979, 980 and 1406 of the Election Code, 25 P.S. §§ 2784, 2870, 2911, 2936, 2939, 2940, and 3156. These provisions, in various ways and at various steps in the electoral process, prohibit two or more political organizations from nominating a single candidate. The proscription applies both to political parties, major and minor, and to political bodies.

I.

Working Families first contends that the anti-fusion provisions of the Election Code violate the equal protection clause of the Fourteenth Amendment to the United States Constitution.15 More specifically, Working Families argues that the anti-fusion provisions have a disparate impact on political bodies. Working Families concedes that it can use write-in votes to have its candidate also appear on the ballot as the candidate of a major party. However, it argues that the write-in path to fusion is far more difficult for political bodies than for major parties.

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.16 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.17 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.18 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.19 Working Families contends that its path to fusion is more difficult and, thus, the fusion ban violates equal protection.20

Working Families' argument presupposes that a grass roots movement cannot successfully take on the candidate chosen by a major party's establishment, which commands the party's coffers and staff. Surely, the presidential race of 2016 undermines this assumption. One anti-establishment candidate was no doubt assisted by his personal fortune and a successful reality television show. However, the socialist candidate, lacking both attributes, almost defeated the other major party's establishment candidate.

Fusion by write-in vote is different for a political body than for a major party because the Election Code sets up a different nomination procedure for each political organization. That a political body finds it difficult to have its candidate win a major party primary by write-in vote may be explained by the lack of an appealing candidate with an inspiring message. Acknowledging the political body's different path to fusion by a write-in campaign, we address Working Families' equal protection claim.

The Pennsylvania Supreme Court has summarized the basic principles of equal protection as follows:

Kramer v. Workers' Compensation Appeal Board (Rite Aid Corp.), 584 Pa. 309, 883 A.2d 518, 532 (2005) (quoting Curtis v. Kline, 542 Pa. 249, 666 A.2d 265, 267-68 (1995)) (emphasis added).21 In short, legislative classifications, per se, do not offend equal protection.

The level of scrutiny to be applied to a legislative classification depends upon the interest affected by the classification. Our Supreme Court has identified three levels of scrutiny:

Curtis, 666 A.2d at 268 (quoting Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306, 311 (1986)).

Working Families asserts that the anti-fusion sections of the Election Code, in conjunction with the Magazzu holding, create a classification that treats political parties and political bodies differently with respect to their ability to fuse candidates. Working Families further argues that this classification affects the fundamental right to vote, and thus, is subject to strict scrutiny review.22 We disagree.

First and foremost, the anti-fusion provisions of the Election Code do not create a classification. They are facially neutral; they prohibit both political parties and political bodies from fusing their candidate with another political organization's candidate. This conclusion was reached by our Supreme Court in In re Street, 499 Pa. 26, 451 A.2d 427 (1982).

T. Milton Street filed nomination papers to appear on the general election ballot as candidate of the Milton Street Party, a political body, for the office of Representative of the Second District of Pennsylvania to the United States Congress. After Street's nomination papers were filed and accepted by the Secretary of State, the Republican Party's candidate withdrew from the election. The Republican Party then filed a substitute nomination certificate naming Street as its substitute nominee. The Democratic Party challenged the Republican Party's substitute nomination certificate under Section 979 of the Election Code. The Commonwealth Court granted the Democratic Party's requested relief to set aside the substitute nomination certificate.

Before the Supreme Court, Street conceded that his substitute nomination by the Republican Party violated Section 979 of the Election Code, which states that "no substitute nomination certificate shall nominate any person who has already been nominated by any political party or by any other political body for the same office...." 25 P.S. § 2939. Street raised several constitutional challenges to Section 979 of the Election Code, including equal protection.

Street argued that Section 979 violated equal protection of law because it treated political bodies and political parties alike even though they are different. Street conceded that the anti-fusion provisions of the Election Code promoted the legitimate state interest of preventing party-raiding. However, the prohibition against a party's substitute nomination of a candidate who has already been nominated by a political body failed to further this, or any other legitimate state interest.

The Supreme Court disagreed. It rejected Street's theory that political bodies must be treated differently than political parties, noting, instead, that it was the differentiation proposed by Street that posed an equal protection issue. The Supreme Court held that facially discriminatory anti-fusion laws do not violate equal protection, explaining:

In re Street, 451 A.2d at 431. Because anti-fusion provisions of the Election Code were facially neutral, Street did not meet the threshold burden of demonstrating a legislative classification. Section 979 of the Election Code was at issue in In re Street, but the Supreme Court's analysis applies with equal force to the other anti-fusion provisions in the Election Code challenged here by Working Families.

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.

In re Street, 451 A.2d 427, is dispositive of Working Families' equal protection claim. In arguing otherwise, Working Families points to Reform Party of Allegheny County v. Allegheny County Department of Elections, 174 F.3d 305 (3d Cir. 1999), which considered the provisions of the Pennsylvania Election Code that allowed major parties to fuse candidates for certain local races but expressly prohibited minor parties from doing so. See Sections 951(e)(5) and 976 of the Election Code, 25 P.S. §§ 2911(e)(5), 2936. The Court of Appeals held that the prohibition of fusion in local races by political bodies and minor parties violated equal protection and was unconstitutional. Because Reform Party considered facially discriminatory statutory provisions in the Election Code, it is inapposite.

Even so, the Court of Appeals did not apply a strict scrutiny standard of review for deciding the equal protection challenge. Rather, it applied an intermediate level of scrutiny, which weighed the burden imposed against "any plausible justification the State has advanced for imposing unequal burdens on major and minor parties." Reform Party, 174 F.3d at 315. As set forth below, the Commonwealth has offered a justification for the burden that passes the intermediate standard of review applied in Reform Party.

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.

II.

Working Families next argues that the anti-fusion provisions of the Election Code violate Article I, Sections 5, 7, and 20 of the Pennsylvania Constitution. These provisions provide for free and equal elections, freedom of speech, and freedom of association. We consider these claims ad seriatim.

Speech and Association

The Pennsylvania Constitution guarantees every citizen freedom of speech and freedom to associate with others. Article I, Section 7 of the Pennsylvania Constitution provides, in relevant part:

PA. CONST. art. I, § 7. Article I, Section 20 guarantees the right to associate. It reads:

PA. CONST. art. I, § 20.

Freedom of speech and association undeniably constitute fundamental rights.23 In re Nader, 588 Pa. 450, 905 A.2d 450, 465 (2006). Nevertheless, our Supreme Court has recognized that in the context of election law, "not all restrictions imposed by [] States on candidates' eligibility for the ballot impose constitutionally-suspect burdens on voters' rights to associate or choose among candidates." Id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)). The Commonwealth may, and inevitably must, "enact substantial regulation containing reasonable, non-discriminatory restrictions to ensure honest and fair elections that proceed in an orderly and efficient manner." Banfield v. Cortés, 631 Pa. 229, 110 A.3d 155, 176-77 (2015).

In deciding whether the Election Code's anti-fusion provisions violate speech and associational rights guaranteed by the Pennsylvania Constitution, we weigh the character and magnitude of the burden imposed by the provisions against the interests proffered to justify that burden. Timmons, 520 U.S. at 358, 117 S.Ct. 1364. The Pennsylvania Constitution affords greater protection of speech and associational rights than does our Federal Constitution. See DePaul v. Commonwealth, 600 Pa. 573, 969 A.2d 536, 546 (2009) (noting, inter alia, that Article I, Section 7 is the "ancestor, not a stepchild, of the First Amendment"). Nevertheless, our Supreme Court has explained that reference to "First Amendment authority remains instructive in construing Article I, Section 7" of the Pennsylvania Constitution. Id. at 547.

Working Families argues that prohibiting a political body from fusing its candidate with a major party candidate denies the political body freedom of expression and association.24 It is barred from choosing the most attractive candidate willing to accept its nomination. Working Families further argues that the fusion ban violates the speech and associational rights of candidates and of voters. It contends that the Election Code's burden on speech and association requires a strict scrutiny review.

Our Supreme Court has ruled that the fusion ban in the Election Code does not violate the First Amendment. It explained as follows:

In re Street, 451 A.2d at 432 (quoting Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) (emphasis added)). Here, the most recent "ballot access" case is Timmons, 520 U.S. 351, 117 S.Ct. 1364, which was decided a generation after In re Street.

In Timmons, the New Party, a minor political party as defined in Minnesota election law, sought to nominate Andy Dawkins as its candidate for Minnesota State Representative. Dawkins had previously filed as a candidate for State Representative of the Minnesota Democratic-Farmer-Labor Party, a major political party, and was running unopposed. Neither Dawkins nor the Democratic-Farmer-Labor Party objected to the New Party's nomination of Dawkins, and he filed the required candidate affidavit with election officials.

Minnesota's election law prohibited fusion candidacies. Because Dawkins had already filed a petition to be a candidate for the Democratic-Farmer-Labor Party's nomination, local election officials refused to accept the New Party's nomination petition naming Dawkins. As a result, the New Party filed suit contending that Minnesota's election laws prevented it from selecting and associating with its candidate of choice. In rejecting the New Party's claim, the Supreme Court explained:

Timmons, 520 U.S. at 359, 117 S.Ct. 1364 (internal citations omitted) (emphasis added). The Court further observed that the anti-fusion sections of Minnesota's election law merely "reduce[d] the universe of potential candidates who may appear on the ballot as the party's nominee...." Id. at 262, 117 S.Ct. 1364.

The United States Supreme Court rejected the argument that anti-fusion laws severely burden the First Amendment guarantee of speech and association because the primary purpose of a ballot is to elect candidates, not to serve as a forum of political expression. The Supreme Court reasoned as follows:

Id. at 362-63, 117 S.Ct. 1364 (internal citations omitted) (emphasis added).

Pennsylvania's Constitution provides greater protection of speech and associational rights than does its federal counterpart, but we are guided by the teachings of the United States Supreme Court on these rights. DePaul, 969 A.2d at 547. Further, where a party to litigation "mounts an individual rights challenge under the Pennsylvania Constitution, the party should undertake an independent analysis" to explain why "state constitutional doctrine should depart from the applicable federal standard." Id. at 541.25 Working Families has not offered this explanation. Accordingly, we employ the analytical paradigm established in Timmons, 520 U.S. 351, 117 S.Ct. 1364, with respect to Article I, Sections 7 and 20 of the Pennsylvania Constitution.

In Timmons, the Supreme Court held that the "character and magnitude of the burden" on the right of speech and association must be weighed against the state's justification for the burden. The Supreme Court explained that:

Timmons, 520 U.S. at 358, 117 S.Ct. 1364 (citations and quotations omitted). Timmons held that the anti-fusion provisions limit the "universe of potential candidates" that may appear as a party's candidate. Id. at 352, 117 S.Ct. 1364. Under Timmons, this was held to require the "less exacting review," i.e., whether the Commonwealth's asserted interests justify the burden imposed. Id. at 358, 117 S.Ct. 1364.

The Commonwealth has proffered an "important regulatory interest" to justify the Election Code's prohibition of fusion. The Election Code designates a political organization as either a political party or a political body based on its performance in the preceding general election. Based on a percentage-vote calculation set forth in Section 801 of the Election Code, 25 P.S. § 2831,26 a political organization whose candidate receives two percent of the total votes cast for any candidate who is elected, both statewide and in each of at least ten counties, is designated a statewide political party. A political organization whose candidate receives five percent of the total votes cast in a given county, at either the preceding general or municipal election, may attain county political party status.27 A political organization that has a vote performance below two percent at the state level, or five percent at the county level, is designated as a political body.

If fusion were permitted, Rabb's name, for example, would have appeared on the general election ballot with the designation "Democratic Party/Working Families Party." His name would not appear twice, i.e., once as a candidate of the Democratic Party and again as a candidate of the Working Families Party. The Election Code provides no procedure to disaggregate or apportion the total votes received by a candidate. Accordingly, it would be impossible to determine whether the support for the candidate came from the votes of the political party or from the political body.

Because Pennsylvania aggregates its vote totals, fusion would make it impossible to perform the percentage-based vote calculation to determine proper designations of political organizations in the next election cycle.28 This vote-based calculation is important because only political parties must nominate their candidates in primary elections. Section 902 of the Election Code, 25 P.S. § 2862. Without the anti-fusion provisions, third party candidates could be eliminated from the general election ballot.

Political bodies may begin to circulate nomination papers on the tenth Wednesday prior to the primary and must file them on or before the second Friday following the primary election, i.e., August 1st. See Section 953(b), (c) of the Election Code, 25 P.S. § 2913(b), (c).29 If fusion were permitted, 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.

The General Assembly has made the determination that stability in the election process is not served by fusion of candidates. Our Supreme Court has stated:

Packrall v. Quail, 411 Pa. 555, 192 A.2d 704, 706 (1963). As observed by our Supreme Court, the constitutionality of anti-fusion "has been consistently sustained by this Court since the enactment of the Election Code in 1937." In re Street, 451 A.2d at 433. We hold that the anti-fusion provisions of the Election Code do not violate the rights of speech and association protected by Article I, Sections 7 and 20 of the Pennsylvania Constitution.

Free and Equal Elections

In its final argument, Working Families asserts the ban on fusion violates the free and equal election clause of the Pennsylvania Constitution. Article I, Section 5 of the Pennsylvania Constitution, which guarantees free and equal elections, provides:

PA. CONST. art. I, § 5. Elaborating on the meaning of the "free and equal election clause," our Supreme Court has directed that:

Shankey v. Staisey, 436 Pa. 65, 257 A.2d 897, 899 (1969) (quoting Winston v. Moore, 244 Pa. 447, 91 A. 520, 523 (1914)).

Our Supreme Court has recognized that Article I Section 5 implicates a citizen's right to vote, which is "fundamental and `pervasive of other basic civil and political rights.'" Banfield, 110 A.3d at 176 (quoting Bergdoll v. Kane, 557 Pa. 72, 731 A.2d 1261, 1269 (1999)). Nevertheless, the Commonwealth "may enact substantial regulation containing reasonable, non-discriminatory restrictions to ensure honest and fair elections that proceed in an orderly and efficient manner." Id. at 176-77.

Working Families argues the anti-fusion provisions of the Election Code deny voters the right to have their vote counted in a way that reflects their true party preference. Working Families asserts that it is imperative that representatives know the values of those who vote for them, and cross-nomination enables some record of this by permitting members of political bodies to "vote their values without wasting their votes." Working Families' Brief in Support of Application for Summary Relief at 24. It is beyond peradventure that each citizen has a right to cast his vote and have it counted. However, as explained previously, the Pennsylvania Constitution does not guarantee that a voter will approve of his party's chosen candidate; a voter may be presented with the choice to "vote party" or "vote candidate."

In the 2016 general election, Working Families' members had the unfettered ability to vote for Rabb, their preferred candidate. That Rabb's name appeared on the general election ballot as the Democratic Party candidate, but not also as the Working Families candidate, did not impose a burden. Members of Working Families were free to cast their vote for Rabb.

To the extent Working Families claims that its members' voting rights were infringed upon because they cannot send a message about their preferred candidate through the ballot, we have addressed this contention. Simply, "[b]allots serve primarily to elect candidates, not as forums for political expression." Timmons, 520 U.S. at 363, 117 S.Ct. 1364.

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.

In its final argument, Working Families maintains the anti-fusion provisions are a product of the major political parties' effort to prevent the free exercise of the right of suffrage. Specifically, it asserts "the legislature acted to advance the interests of the two established major parties, and to block outsiders." Working Families' Brief in Support of Application for Summary Relief at 28. It offers no support of this claim. In any case, the "motive" of an individual legislator voting on legislation is irrelevant to the constitutionality of a collective work product. See McCormick v. Columbus Conveyer Company, 522 Pa. 520, 564 A.2d 907, 910 n.1 (1989) (holding that remarks and understandings of individual legislators is not relevant to the meaning of the statute). As noted above, the anti-fusion provisions serve an important regulatory function: they prevent party raiding and "avoid voter confusion." In re Street, 451 A.2d at 430. We decline to address further Working Families' bald assertions of legislative conspiracy.

In sum, Working Families has failed to present a viable claim that the anti-fusion provisions of the Election Code impose any burden on the right to vote or otherwise offend Article I, Section 5 of the Pennsylvania Constitution.

Conclusion

Working Families has failed to establish that the anti-fusion provisions of the Election Code are unconstitutional under the United States or Pennsylvania Constitutions. Magazzu did not create a major party exemption from the Election Code's across-the-board ban on any political organization nominating a candidate of another political organization. The Election Code's anti-fusion provisions, which are facially neutral, violate neither the equal protection clause of the 14th Amendment of the United States Constitution nor the rights of free and equal elections and freedom of speech and association guaranteed by Article I of the Pennsylvania Constitution.

Accordingly, we deny Working Families' application for summary relief and grant the Commonwealth's application for summary relief.

ORDER

AND NOW, this 18th day of September, 2017, petitioners' application for summary relief is denied and respondents' cross-application for summary relief is granted as to Count I of the petition for review.

DISSENTING OPINION BY JUDGE COSGROVE.

While I respect the well-crafted and well-reasoned Majority opinion, the decision in Appeal of Magazzu, 355 Pa. 196,49 A.2d 411 (1946) compels my dissent. In that case, the Supreme Court permitted a candidate, who had filed nominating petitions as a member of one party, to receive the nomination of another party for the same office. Thus, while our Election Code1 (except in local judicial and school director races) prohibits "fusion" candidacies (i.e., "the nomination by more than one political party of the same candidate for the same office in the same general election," Timmons v. Twin Cities Area New Party, 520 U.S. 351, 353 n.1, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), and while such prohibitions are constitutional, Timmons, the 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.2 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.3 This distinction is so directly contrary to the concept of equal protection that it cannot survive scrutiny on any level under the Fourteenth Amendment. U.S. CONST. amend. 14.

The decision of the United States Court of Appeals for the Third Circuit in Reform Party v. Allegheny County Department of Elections, 174 F.3d 305 (3rd Cir. 1999) offers a framework for application of equal protection principles here. That case involved a question whether a statutory "ban on minor party `cross-nominations' in certain local offices" was constitutional, since major parties were allowed to cross-nominate candidates in these particular local races. Reform Party, 174 F.3d at 308. As these provisions had already been declared unconstitutional by the Third Circuit in Patriot Party of Allegheny County v. Allegheny County Department of Elections, 95 F.3d 253 (3rd Cir. 1996), the Reform Party court revisited the question in the after-math of Timmons, and reaffirmed its earlier ruling that "Pennsylvania's decision to ban cross-nomination by minor parties and to allow cross-nomination by major parties constitutes the type of `invidious discrimination' prohibited by the Fourteenth Amendment." Reform Party, 174 F.3d at 310.

The Majority distinguishes Reform Party since it addressed a matter of facial discrimination, where the provisions at issue here, according to the Majority, are not facially discriminatory. This distinction, however, does not excuse the Election Code's constitutional impairment vis-à-vis minor political parties and political bodies since it was the disparate treatment of these organizations as compared to major parties which Reform Party condemned. Further, stapled to the "Magazzu loophole," the provisions in question here are thus, indeed, "facially discriminatory," Reform Party, with no countervailing state interest to sustain them. Contrary to the Majority's view, the reasoning of Reform Party is equally as applicable here as it was in that case.

If Magazzu is as limited as the Majority suggests,4 then it creates a distinctly exclusive political club with only the two major parties as members. So-called minor parties, such as Working Families Party, are not invited to this club and are unable to enjoy these particular fruits of membership. This cannot withstand constitutional muster even under the most relaxed standard.

Perhaps the Supreme Court got it wrong when it created the "Magazzu loophole." If so, that Court will have to correct it by overruling this nearly seventy-year-old decision. Since that is something we cannot do, we must apply Magazzu's rationale evenly and equally. I do not believe the Majority opinion fulfills this responsibility, and therefore, I must dissent.