Independent presidential candidate Robert F. Kennedy Jr. speaks to reporters outside the Pennsylvania Commonwwealth Justice Center after a hearing Tuesday, Aug. 20, 2024. (Capital-Star photo by Peter Hall)
Independent presidential candidate Robert F. Kennedy Jr. was not allowed to testify Tuesday in a challenge to his appearance on Pennsyvania’s ballot when he arrived nearly two hours late for a state court hearing after his flight to Harrisburg was canceled.
Commonwealth Court Judge Lori Dumas expressed displeasure that she was not informed of Kennedy’s travel delay and denied a request by Kennedy’s attorney Paul Rossi to adjourn the hearing to give Kennedy and another witness time to arrive.
Both sides had planned to call Kennedy to testify about the Katonah, N.Y., address, where he rents a spare bedroom, that appears on his ballot petitions in Pennsylvania and other states. The challengers contend that Kennedy’s actual residence is in California at the home of his wife, “Curb Your Enthusiasm” actor Cheryl Hines.
In Kennedy’s absence, Dumas accepted evidence, largely in the form of transcripts from a trial in New York state court. A judge in Albany last week concluded that the address in the New York City suburb of Westchester County was “merely a ‘sham’ address that he assumed for the purpose of maintaining his voter registration and furthering his own political aspirations in this State.”
New York Justice Christina Ryba cited testimony from Kennedy and the owner of the home that in the 15 months he had claimed residency there, he had slept at the address only once and that was two weeks after the New York challenge was filed in June.
Speaking to reporters after the hearing at the Pennsylvania Commonwealth Justice Center adjourned, Kennedy said the Democratic Party’s effort to keep independents off the ballot did not reflect the ideals of his father, attorney general and U.S. Sen. Robert F. Kennedy and his uncle, President John F. Kennedy.
“The Democratic Party that I grew up with … was fighting to make sure that Americans, every American, could vote for the candidates they chose to vote for. This Democratic Party is doing everything within its power to make sure that Americans are disenfranchised,” Kennedy said, claiming that “tens of millions” want to vote for him.
Dumas also heard arguments from attorney Tim Ford, who represents the Democratic-backed challengers, two voters from Dauphin County and Philadelphia, and Rossi, who asserted that Pennsylvania’s requirement for candidates to report their address is unconstitutional.
Ford said Pennsylvania law requires Kennedy’s name to be stricken from the ballot because he used the New York address with an intent to deceive voters.
“This isn’t a situation with a good-faith excuse,” Ford said, noting that the Pennsylvania Supreme Court previously found that there was no intent to deceive voters in a case when a candidate was moving to a new address while circulating nominating petitions.
In a petition filed Aug. 8 in Commonwealth Court, the challengers argue that Kennedy used the New York address because vice presidential nominee Nicole Shanahan also lives in California presenting an insurmountable problem for Kennedy’s campaign.
The U.S. Constitution bars a state’s presidential electors from casting their votes for presidential and vice presidential candidates if both are from that state, meaning Kennedy could not receive California’s Electoral College votes, the filing said. But Ford said concealing voter fraud could be another motive.
“If he’s registered to vote in New York but lives in California, that’s a problem,” Ford argued.
Ford also said the address requirement also passes constitutional tests because states have a legitimate interest in protecting their ballot access process and the integrity of elections.
If Dumas concludes that Kennedy’s New York address is correct, Ford said the challengers also contend that Kennedy hasn’t submitted enough signatures to get on the ballot.
Independent presidential candidates are required by state law to obtain a number of signatures equal to 2% of the votes cast for the winner of the last election. For the 2024 election, that number is 33,043.
In a 2018 case over the court costs associated with ballot challenges, a federal judge found that the 2% requirement is unconstitutional when it imposes a “severe burden” on candidates’ constitutional right to freedom of association.
Following the ruling, the Pennsylvania Department of State said it would not enforce the requirement and would accept petitions with as few as 5,000 signatures.
Noting that Kennedy’s petitions fall short of the 33,043 signature requirement and that Kennedy’s campaign has touted that his nationwide ballot access campaign is “fully funded,” he must show the requirement presents a severe burden on his rights, Ford said.
“He wants a discount from the state without putting in the work to show he’s entitled to a discount,” Ford said.
Rossi argued that the requirement for a candidate to provide their address in a state or local election is valid when voters require proof that the candidate lives in the district or municipality where they’re running for office.
The presidential election is different because “the whole country is the district,” Rossi said, adding that applying state laws to a national election is unconstitutional under the Presidential Qualifications Clause.
Noting that Green Party presidential candidate Ralph Nader’s 2004 effort to appear on the Pennsylvania ballot was derailed after a weeks long court proceeding despite submitting more than twice the required number, Rossi said the 2% requirement is clearly burdensome.
“If the 2% rule applies to use, we essentially have to go to federal court and get an injunction against the ballot printing deadline for early voting,” Rossi said.
A Pennsylvania Department of State spokesperson told the Capital-Star that Secretary of the Commonwealth Al Schmidt will certify a final list of candidates as soon as possible based on resolution of challenges.
County boards of elections usually send out absentee and mail-in ballots about six weeks before the election, however they could be delayed by ongoing litigation that affects the names on a ballot.
“In any event, counties must begin delivery of all mail ballots no later than Oct. 22, 2024, or two weeks prior to an election,” Deputy Communications Director Geoff Morrow said.
Rossi said after the hearing that Dumas’ decision not to accommodate Kennedy’s travel delays was unusual.
“I’ve never been in a situation where a canceled flight has resulted in a judge preventing … any candidate, any witness from testifying,” Rossi said. “Given that we have the entire day set aside, we very easily could have had an adjournment to allow Mr. Kennedy to get here and we could have presented our case in full, and we were not allowed to do that.”
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