On March 29, the Pennsylvania Supreme Court issued an opinion on Pennsylvania’s unique system of determining whether petitions are valid. The 25-page opinion is here, and is called In re Nomination Petition of Lawrence M. Farnese, no. 13 EAP 2008. The case had been argued in the Supreme Court almost two years ago, on April 15, 2009. It concerns a petition to get on the April 2008 Democratic Party primary ballot for State Senate filed by Lawrence Farnese, who won his primary and his general election and is now a sitting State Senator.

Pennsylvania, alone among all the states, has no procedure for elections officials to determine if a petition has enough valid signatures, either initially or after a challenge has been filed. Instead, Pennsylvania assumes that all petitions that have enough signatures on their face to meet the legal requirement are valid. But if a private individual feels the petition is likely invalid, that individual may challenge the petition, and then Pennsylvania state court judges (not elections officials) must determine if the petition has enough valid signatures. Starting in 2004, Pennsylvania state courts decided that the “loser” in this challenge process must pay court costs, which can amount to over $100,000. In the Farnese case, the lower court had decided that the challengers must pay costs, because even though the challengers showed that most of the signatures on the petition were invalid, and some of them were fraudulent, the candidate still had enough signatures to get on the ballot. The Pennsylvania Supreme Court reversed the lower court and said the challengers need not pay costs.

The Pennsylvania Supreme Court said that there is no real standard to determine when costs must be assessed. The lower court had made the mistake of thinking that the losing side must always pay court costs. The Pennsylvania Supreme Court rejected that idea. But it left the standard utterly arbitrary. The opinion says the law only says that the decision to award costs must be “just”, “leaving the decision of what is ‘just’ to the discretion of the judicial officer…We decline the invitation to adopt a simple, blackletter rule that parties must prove fraud, bad faith, intention, or gross misconduct to recover costs in election matters…a party’s conduct need not proceed to such an extreme before an award of costs may be dictated by justice.”

So, the upshot is that there are no standards for Pennsylvania courts to decide whether to assess costs or not. Ralph Nader was assessed costs in 2004, and the Green Party was assessed costs in 2006, even though the challengers in those instances illegally used state government resources, yet the Pennsylvania Supreme Court has already ruled that those assessments of costs were “just”. But there is no standard to say what outcome is a “just” outcome, and the public is left with the impression that Pennsylvania courts award costs whenever they happen to dislike the candidate or the party that submitted the petition. The entire Pennsylvania challenge-cost system is currently being challenged in federal court, and a decision from the 3rd Circuit could come down at any time.