MEDIA – Delaware County’s Republican Party and its Chairman have launched legal action against the County and its Council, alleging that an ordinance governing the selections of members to the local Board of Elections runs afoul of state election code.
Frank Agovino (as Chairman of the Delaware County Republican Party) and the Delaware County Republican Party filed suit in the Delaware County Court of Common Pleas on June 19 versus Delaware County and the Delaware County Council.
“The Pennsylvania Election Code requires that each county maintain a county Board of Elections, which shall have jurisdiction of the conduct of primaries and elections in each county. Under the Pennsylvania Election Code, the Board of Elections shall consist of the county commissioners, except in counties of the first class and counties that have adopted home rule charters. In counties that have adopted home rule charters, the Pennsylvania Election Code gives those counties the option of appointing the members of the Board of Elections. In all events, the Pennsylvania Election Code mandates the minority party have representation on the Board of Elections,” the suit says.
“Under the Pennsylvania Election Code, in home rule counties that appoint the members of the Board of Elections, the minority representatives of the board shall be appointed ‘from a list submitted by the county chairman of the minority party.’ Delaware County is a home rule charter county. Under the Delaware County home rule charter, the Delaware County Council appoints the members of the Board of Elections for Delaware County. On or about Jan. 18, 2023, defendant Delaware County Council passed ‘Ordinance No. 2023-1.”
The suit adds that the ordinance states that “1) The representative of the minority party (as described in Section 421 of the Charter) shall be selected by Council from a list of three nominees submitted by that minority party’s County Chair or Council may reject such list and request a new list of nominees. 2) If no list is provided to Council within (i) 30 days of a vacancy on the Board of Elections or (ii) 10 days after Council rejects a list as described above, Council may appoint any member of the minority party.”
According to the plaintiffs, the ordinance violates and is preempted by Section 2641(b) of the Pennsylvania Election Code – which states that “the minority party chairman has the sole authority to nominate the minority member of the Board of Elections, which the County Council shall appoint” and “the Council cannot ‘reject’ a nomination from the minority party chairman or make their own minority nomination and appointment.”
“Through the ordinance, the Council has given itself both a veto right and a nomination and appointment right, which violates the Pennsylvania Election Code. As Republican Party county chairman, in the event of a vacancy, Agovino has the authority to nominate a minority member to the Board of Elections. Agovino wishes to nominate the minority member of the Board of Elections by submitting a list to the Delaware County Council. The current minority-member’s term expires in or around December 2023. This means Agovino will need to nominate a minority member to the Board of Elections for a new term. However, the ordinance forces him into an untenable position,” the suit states.
“On the one hand, Agovino can forgo the authority conferred on him by the Election Code and attempt to nominate a minority member to the Board of Elections that is acceptable to the County Council. On the other hand, Agovino can nominate a member that the Board of Elections will reject, only to have the County Council appoint a nominee of its own choosing. In all events, the ordinance significantly impacts and makes more onerous Agovino’s ongoing efforts to identify, interview, vet, and nominate a minority member to the Board of Elections by forcing him to confront and consider the ordinance’s veto and substitute nomination procedures, which is not prescribed by the statute. Accordingly, Agovino faces a substantial, direct, and immediate harm because of the ordinance that surpasses the interests of ordinary citizens.”
For counts of declaratory judgment and injunctive relief, the plaintiffs are seeking the following relief:
• Declaring that Ordinance No. 2023-1 and any other provision which permits the Delaware County Council to reject nominees for the minority member of the Board of Elections or to select any member of the minority party that they so choose if certain arbitrary deadlines are not met by the minority party county chairman in violation of the Pennsylvania Election Code.
• Declaring that Ordinance No. 2023-1 and any other provision which permits the Delaware County Council to reject nominees for the minority member of the Board of Elections or to select any member of the minority party that they so choose if certain arbitrary deadlines are not met by the minority party county chairman is pre-empted by the Pennsylvania Election Code.
• Enjoining defendants, their respective agents, officers, employers, successors and all persons acting in concert with each or any of them from enforcing any provision of Ordinance No. 2023-1.
• Awarding plaintiffs their costs and disbursements incurred in bringing this action.
• Granting such other further relief that the court deems just and proper.
The plaintiffs are represented by Walter S. Zimolong and James J. Fitzpatrick of Zimolong, LLC, in Villanova.
The defendants have not yet obtained legal counsel.
Delaware County Court of Common Pleas case CV-2023-005232
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com