MEDIA – A state court judge has granted an injunction preventing Delaware County and its Council from enforcing an ordinance governing the selection of members to the local Board of Elections, in response to an argument from the County’s Republican Party Chairman that it violated state election code.
Frank Agovino (as Chairman of the Delaware County Republican Party) and the Delaware County Republican Party first 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 said.
“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 added 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 pre-empted 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 stated.
“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.”
The defendants answered the complaint on Aug. 16, denying that the ordinance “presently requires Agovino to do anything”, denying that it will lead to inevitable litigation and that “there is no vacancy on the Board of Elections, and Agovino can only speculate as to who, in fact, will nominate a minority member to the Board of Elections when a vacancy opens.”
“Delaware County Republican Party has not asserted any claim against defendants and is not a proper party in this action. Plaintiffs lack capacity to sue because they lack standing. Plaintiffs lack capacity to sue because their claims are not ripe and there is no actual controversy between the parties. Plaintiffs’ claims are legally insufficient and fail to state a claim as a matter of law. The ordinance is not preempted by, and does not otherwise violate, the Pennsylvania Election Code,” according to the answer’s additional new matter.
On Sept. 27, the plaintiff filed a petition seeking an injunction seeking to prevent the enforcement of Ordinance No. 2023-1.
“This is a petition for a preliminary injunction to enjoin defendants from enforcing Ordinance 2023-1, which illegally strips the chairman of the Republican Party of his right under the Pennsylvania Election Code to nominate a member to the Delaware County Board of Elections that the County ‘shall appoint.’ In January 2023, Delaware County enacted Ordinance No. 2023-1. The Ordinance states that the County Council may reject any nominee the Republican Party chair nominates to serve on the County Board of Elections. The Ordinance further states that County Council may appoint its own chosen member of the Republican Party to serve on the board. The Ordinance is unlawful,” the petition stated.
“Under the Pennsylvania Election Code, the County Council has no authority to reject a nominee from the Republican Party chair and it has no authority to appoint its own Republican nominee. The Pennsylvania Election Code is clear in a home rule county, like Delaware, that appoints the members of the board of elections, the County Council ‘shall appoint [a minority representative] from a list submitted by the county chairman of the minority party.’ Accordingly the Court should issue a preliminary in junction enjoining defendants from enforcing the Ordinance.”
The County and its Council filed an opposition brief to the request for an injunction on Oct. 25, reiterating that the plaintiffs have no standing in this action.
“After reasonable investigation, defendants are without knowledge or information sufficient to form a belief as to Chairman Agovino’s efforts, if any, to identify, interview, vet or nominate a minority member to the Board of Elections. It is specifically denied that the Ordinance presently requires Chairman Agovino to do anything. There is no vacancy on the Board of Elections, and Chairman Agovino can only speculate as to who, in fact, will nominate a minority member to the Board of Elections when a vacancy opens. The remaining allegations are conclusions of law to which no response is required,” the defendants’ answer stated, in part.
“By way of further answer, it is specifically denied that Chairman Agovino is suffering ‘irreparable harm’; to the contrary, there is no vacancy on the Board of Elections and Chairman Agovino is not suffering any immediate or irreparable harm. The remaining allegations are conclusions of law to which no response is required.”
In additional new matter, the defendants asserted that the plaintiffs lack capacity to sue because they lack standing, the plaintiffs lack capacity to sue because their claims are not ripe and there is no actual controversy between the parties and, alternatively, the Ordinance is not preempted by, and does not otherwise violate the Pennsylvania Election Code.
UPDATE
Delaware County Court of Common Pleas Judge James P. Bradley granted the plaintiffs’ injunction in an order handed down on Dec. 13.
“Upon consideration of plaintiffs’ petition for a preliminary injunction, defendants’ opposition thereto, a Nov. 1, 2023 hearing thereon and the parties’ post-hearing submissions, it is hereby ordered and decreed that said petition is granted and defendants County of Delaware, Delaware County Council and their respective agents, officers, employers and successors are hereby enjoined from enforcing any provision of Ordinance No. 2023-1, 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 deadlines are not met by the minority party county chairman. It is further ordered that Ordinance No. 2023-1 is declared void and invalid,” Bradley said.
Bradley recounted the prior proceedings and elaborated on the rationale for his ruling.
“On Nov. 7, 2023, a municipal election occurred in Delaware County, Pennsylvania and based on the election results the Republican Party will remain the minority party. Therefore, Agovino must nominate a member of the Republican Party, the minority party, to the Board of Elections to fill a vacancy that will occur in January 2024. As such, the County’s objections based on standing and ripeness because of the uncertainty of the results of the November 2023 election are now moot. Delaware County is a county of the second class and may enact a home rule charter to govern itself; however, those governing powers are limited by the Second-Class County Charter Law,” Bradley stated.
“Under the Election Code, Council shall appoint a minority member to the Board of Elections from a list supplied by Agovino as the minority party chair. The purpose of the Election Code is to guarantee minority representation on the County Board of Election; however, the current Ordinance impermissibly affords Delaware County Council a veto power over the minority party chair’s nomination to the Board of Elections which unduly expands the powers conferred upon Council by the Election Code. For these reasons, Ordinance No. 2023-1 is declared void and invalid and the Delaware County Council is enjoined from enforcing any provision of Ordinance No. 2023-1, which permits the 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 deadlines are not met by the minority party county chairman.”
The plaintiffs are additionally seeking costs and disbursements incurred in bringing this action and 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 are represented by Edward D. Rogers and Paul K. Ort of Ballard Spahr in Philadelphia, plus William F. Martin of the Delaware County Solicitor’s Office, in Media.
Delaware County Court of Common Pleas case CV-2023-005232
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com