On August 1, Pennsylvania state election officials rejected the petitions of an independent candidate for U.S. House, 2nd district. The reason is that his ballot label is “independent.” The day before, another candidate with the ballot label “independent” had also filed in the same race. The state cited a law that says two parties with the same name cannot both appear on the ballot for the same office.
The rejected candidate, Jim Foster, is the editor of Germantown Newspapers. He believes that the Democratic incumbent, who is running for re-election, deliberately found another candidate to file with the same label, “independent.” The other candidate who used “independent” as a ballot label, Robert J. Osborn, filed the day before Foster did. Foster actually attempted to file on the day before, but elections officials encouraged him to delay filing.
The U.S. Supreme Court said in Storer v Brown, 415 U.S. 724, that there are two kinds of candidate in partisan races, independent candidates, and candidates who are nominees of political parties, whether new, old, major, or minor. In other words, an independent candidate is a special category of candidate. Using that logic, two State Supreme Courts ruled that state legislatures, or election officials, cannot bar candidates from having the word “independent” on the ballot next to their names. The Massachusetts Supreme Court, in 1981, in Bachrach v Sec. of the Commonwealth, 415 NE 2d 832, unanimously struck down a law that said independent candidates could only describe themselves on the ballot as “unenrolled”, and ordered the state to let a candidate use the word “independent”.
The Minnesota Supreme Court, in 1976, told the Secretary of State that he must let an independent candidate use that word on the ballot. The Secretary of State had denied the label, on the grounds that the Republican Party had changed its name to the “Independent-Republican Party”, and that since a new party can’t use a word in the name of an old party, that therefore “independent” was not permitted.
On August 3, Foster sued the Pennsylvania Elections Department. The case is Foster v Pennsylvania Department of State, Commonwealth Court, 500-MD-2012. On August 6, the court asked the two parties to settle. At the upcoming hearing on August 9, it is likely that the elections officials will allow him to be on the ballot if he chooses another label. He will probably choose “Philadelphia Party.” See this story.