Independent presidential candidate Robert F. Kennedy Jr. was not allowed to testify Tuesday in an objection to appearing on the Pennsylvania ballot because he showed up nearly two hours slow for a state court hearing after his flight to Harrisburg was canceled.
Commonwealth Court Judge Lori Dumas expressed dissatisfaction 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 an address in Katonah, N.Y., where he rents a spare room that appears on his campaign petitions in Pennsylvania and other states. Opponents say Kennedy’s actual residence is in California, at the home of his wife, “Curb Your Enthusiasm” actress Cheryl Hines.
In Kennedy’s absence, Dumas accepted evidence, mostly in the form of transcripts from a New York state court hearing. An Albany judge last week found that the address in the New York suburb of Westchester County was “merely a ‘fictitious’ address that he adopted in order to maintain voter registration and advance his own political aspirations in this state.”
New York Judge Christina Ryba referred to the testimony from Kennedy and the homeowner that in the 15 months he said he had been registered there, he had stayed overnight at the address only once, and that was two weeks after New York City authorities filed a complaint in June.
Speaking to reporters after the hearing at the Pennsylvania Commonwealth Justice Center, Kennedy said the Democratic Party’s efforts to keep independent candidates off the ballot do not reflect the ideals of his father, Attorney General and U.S. Senator Robert F. Kennedy, or his uncle, President John F. Kennedy.
“The Democratic Party that I grew up with … fought to make sure that Americans, every American, could vote for the candidates they chose to vote for. This Democratic Party is doing everything in 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 candidates, two voters from Dauphin County and Philadelphia, and Rossi, who said Pennsylvania’s requirement that candidates provide their address is unconstitutional.
Ford said Pennsylvania law required Kennedy’s name to be removed from the ballot because he used a New York address to mislead voters.
“This is not a situation where you can make a good faith excuse,” Ford said, noting that the Pennsylvania Supreme Court previously ruled that there was no intent to defraud voters when a candidate moved to a up-to-date address while circulating nominating petitions.
In a petition filed Aug. 8 in Commonwealth Court, the plaintiffs argue that Kennedy used a New York address because vice presidential candidate Nicole Shanahan also lives in California, posing an insurmountable problem for the Kennedy campaign.
The U.S. Constitution prohibits a state’s presidential electors from casting votes for a presidential or vice presidential candidate if both are from that state, meaning Kennedy could not have received California’s Electoral College votes, as the records show. But Ford said covering up 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 added that the address requirement also meets constitutional requirements because states have a legitimate interest in protecting the voting access process and the integrity of elections.
If Dumas finds Kennedy’s New York address correct, Ford said opponents would also argue that Kennedy did not submit enough signatures to be on the candidate list.
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 involving legal fees related to ballot challenges, a federal judge ruled that the 2% requirement was unconstitutional because it imposed a “serious 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 only accept petitions with at least 5,000 signatures.
Ford said Kennedy’s petitions did not meet the 33,043-signature requirement and that his campaign advertised itself as “fully funding” his nationwide ballot access campaign. He must show that the requirement poses a significant burden on his rights.
“He wants a rebate from the government without making any effort to prove he is entitled to it,” Ford said.
Rossi argued that requiring a candidate to provide his or her address in state or local elections is reasonable when voters demand proof that the candidate lives in the district or municipality where he or she is running for office.
Presidential elections are different because “the whole country is a district,” Rossi said, adding that applying state laws to national elections is unconstitutional under Presidential Qualifications Clause.
Noting that Green Party presidential candidate Ralph Nader’s effort to appear on the ballot in Pennsylvania in 2004 failed after a week-long legal proceeding despite submitting more than twice the required number of votes, Rossi said the 2% requirement is patently onerous.
“If the 2% rule applies to use, we would essentially have to go to federal court and get a court order stopping the deadline for printing early ballots,” Rossi said.
A Pennsylvania Department of State spokesman told the Capital-Star that Secretary of the Commonwealth Al Schmidt will approve the final list of nominees as soon as possible after the complaints are resolved.
County boards of elections typically send absentee and mail-in ballots about six weeks before an election, but mailings may be delayed due to ongoing litigation that affects the names on the ballot.
“In any event, counties must begin delivering all mail-in ballots no later than Oct. 22, 2024, or two weeks before the election,” said deputy communications director Geoff Morrow.
Rossi said after the hearing that Dumas’s decision not to take Kennedy’s travel delays into account was unusual.
“I have never been in a situation where a flight cancellation would have prevented a judge from … any candidate, any witness from testifying,” Rossi said. “Given that we have the entire day booked, it would have been very easy for us to order an adjournment to allow Mr. Kennedy to come here and we could have presented our case in full, and we were not allowed to do that.”
