Lawsuit threatens to blow up City Commissioners' Office

If two groups get their way, an archaic line buried in the state's election code could upend how elections are run in Philadelphia.

The government watchdog group Committee of Seventy and Philadelphia 3.0, a “dark money” political action committee that aims to “reform and modernize City Hall,” are suing Common Pleas Court President Judge Sheila Woods-Skipper to prevent the Philadelphia City Commissioners from overseeing the upcoming primary.

“This filing is asking the state Supreme Court to compel the Presiding Judge of the Court of Common Pleas to replace City Commissioners in May because there is a charter change question in the ballot,” said Alison Perelman, director of Philadelphia 3.0.

Perelman pointed to a line in the state election code, uncovered by Seventy staffer Pat Christmas, that says the Presiding Judge “shall appoint judges or electors of the county to serve in the stead of the county commissioners” in any election featuring a charter change via a ballot question.

Commissioners' duties are already fulfilled through a similar arrangement when they stand for election. But ballot questions have appeared or will appear in three of the last four city elections, including the upcoming primary – meaning the suit could render the office mostly redundant. 

Perelman makes no secret of the fact that her group and Seventy ultimately want the commissioners gone altogether. The two groups are part of the Better Philadelphia Elections Coalition, which aims to clean up city elections, starting with the beleaguered row office.

“In no other county in the US does their system look like ours, with three full-time elected officials designated with overseeing elections,” she said, noting a “litany of issues” with the body, including the chronically absent, non-voting Commissioner Anthony Clark.

Election lawyer Gregory Harvey said the merits of the suit were self-evident.

“I don’t know why the President Judge and, presumably, the City Commissioners, believe that the language of subsection does not apply to the Philadelphia City Commissioners,” he said.

Neither the Commissioners Office nor Judge Woods-Skipper elected to comment on the suit. But some legal sources speculated that the reasoning was probably comically simplistic: the line had simply gone unnoticed for decades, buried deep in the election code.

Several lawyers acknowledged that the suit had a good chance of succeeding – the letter of the law is quite clear, as Harvey notes. But a few sources familiar with the Commissioners' Office, speaking on the condition of anonymity, suggested that the Committee and 3.0 had missed an important distinction between Philadelphia’s idiosyncratic election system and those in every other PA county.

Elsewhere in the state, county commissioners wield most local government power, including the ability to propose ballot questions. But in Philadelphia, the commissioners' role has narrowed to merely overseeing elections – executive power rests with the mayor, and it is up to City Council to put alterations to the city charter before voters. 

The portion of the state code cited in the lawsuit could be interpreted as a tool to prevent a conflict of interest that could not occur in Philadelphia. 

But Harvey remained unconvinced.

“That distinction does not seem to me to be a compelling reason that the statutory language would not be applicable to Philadelphia,” he said. “The reason to appoint substituted judges or electors is to supervise the election and that reason would be obtained regardless of how the referendum was put on the ballot.”

Another legal source suggested that Woods-Skipper could simply acknowledge the argument in the suit and then appoint the three Commissioners to effectively replace themselves.

"The President Judge can pick any three electors, presuming she would pick three without a conflict. There's nothing that keeps her from selecting the three commissioners this year," said one lawyer, speaking on background.

Perelman said her group had asked the PA Supreme Court for an expedited review of the case, given the impending primary.