Pennsylvania Election Officials Claim Two Independent Candidates Cannot Both Run for the Same Office

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.


  1. Peter Moody · · Reply

    Does Pennsylvania allow candidates to submit a ballot label besides “Independent”?

  2. Richard Winger · · Reply

    #1, yes, because Pennsylvania is one of the eleven states that doesn’t have a procedure for a party per se to get on the ballot, or to be recognized, in advance of any particular election. All Pennsylvania has, for general election ballot access, are candidate petitions. Since minor party candidates and independent candidates all use the same procedure, the state must let petitioning candidates choose any party label, because otherwise there would be no means for a new or previously unqualified party to get on the ballot with the party label.

  3. So with that logic, when judges run for election and are nominated by both Dems and Repubs, they should only allow one name and throw the others off?

  4. I hope that Foster has the legal resources to pursue this through the courts rather than accepting the state’s insulting and illegal offer. Can COFEO help?

    In addition to the legal issues and precedents that Richard mentions, there’s also the small matter of timing. Under the state’s theory, any given label (including “independent”) goes to the first candidate who gets in line.

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