Opinion

In Re Petition for Agenda Initiative to Place on the Agenda of Council for Consideration

206 A.3d 617

Court: Commonwealth Court of Pennsylvania
Filed: Mar 26, 2019
Status: Published
Author: Covey
On the bench: Leavitt, Jubelirer, Brobson, McCullough, Covey, Cannon, Ceisler
Cited by: 1 cases
Authority: More cited than 44.3%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition for Agenda Initiative :

to Place on the Agenda of a Regular :

Meeting of County Council for :

Consideration and Vote a Proposed :

Ordinance Amending Part 12, :

Government Review, of the :

Administrative Code of Allegheny :

County to Add Article 1205, Voting :

Process Review Commission :

Appeal of: OpenPittsburgh.Org, :

Black Political Empowerment Project, :

Tim Stevens, David M. Brown, :

William Lawrence III, and : No. 451 C.D. 2018

Mirsada Begovic : Argued: October 17, 2018

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY

JUDGE COVEY FILED: March 26, 2019

OpenPittsburgh.Org, Black Political Empowerment Project, Tim

Stevens, David M. Brown, William Lawrence III and Mirsada Begovic (collectively,

OpenPittsburgh.Org) appeal from the Allegheny County (County) Common Pleas

Court’s (trial court) March 15, 2018 order dismissing their appeal.

OpenPittsburgh.Org presents the following issues for this Court’s review: (1) whether

the County Administrative Code’s (Administrative Code) subject matter restriction

on voter referenda and agenda initiative petitions related to the conduct of elections is

unconstitutional; (2) whether the ordinance (Ordinance) proposed by the Agenda

Initiative Petition (Petition) to establish a Voting Process Review Commission to

conduct periodic review of the County’s voting machine systems is legally proper

under the County Home Rule Charter (CHRC) and Pennsylvania’s Home Rule

Charter and Optional Plans Law (HRC&OPL)1 as it does not involve the conduct of

elections as defined by Pennsylvania law; (3) whether the Ordinance can be read in

conjunction with the Pennsylvania Election Code (Election Code)2 and the

Pennsylvania Constitution because it follows the electors’ constitutional right to

select devices used for recording and computing votes;3 and, (4) whether the

Ordinance’s severability clause enables County Council to enact the Ordinance’s

lawful provisions and sever any individual unlawful, invalid, void or unenforceable

provisions therefrom without rejecting the Ordinance in full. After review, we

affirm.

On July 24, 2017, OpenPittsburgh.Org submitted the Petition to the

County Council’s clerk to place the Ordinance on the County Council’s regular

meeting agenda. Although County Council determined that the Ordinance met all of

the Administrative Code’s formal requirements, it nevertheless issued a Statement of

Clarification dated August 7, 2017 certifying the Petition as insufficient. County

Council relied on the County Solicitor’s conclusion that the Ordinance is not legally

proper for County Council’s consideration. On August 17, 2017, OpenPittsburgh.Org

appealed from County Council’s decision to the trial court, asking the trial court to

reverse the County Solicitor’s conclusion and to compel County Council to place the

53 Pa.C.S. §§ 2901-3171.

Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.

OpenPittsburgh.Org separated this issue into two arguments. See OpenPittsburgh.Org Br.

at 4-5. We have combined them for ease of discussion.

Ordinance on its agenda. The trial court dismissed OpenPittsburgh.Org’s appeal as

meritless. OpenPittsburgh.Org appealed to this Court.4

OpenPittsburgh.Org first argues that Section 5-1101.02(C)(3)(e) of the

Administrative Code is unconstitutional because it improperly prohibits voter

referenda and initiatives simply because they involve elections.5 The Pennsylvania

Supreme Court has reiterated:

[O]rdinances enjoy the presumption that they are

constitutionally valid. Moreover, it is indisputable that the

party challenging the constitutionality of an ordinance

carries the heavy burden of proving that it is

unconstitutional. See Upper Salford Twp. v. Collins, . . .

669 A.2d 335, 336 ([Pa.] 1995) (‘Anyone challenging the

constitutionality of such an ordinance bears a heavy burden

of proof.’). Indeed, the ‘heavy burden resting upon the

person asserting unconstitutionality of legislation is one of

the most firmly[-]established principles of our law[.]’

Bilbar Constr. Co. v. Bd. of Adjustment of Easttown Twp., .

. . 141 A.2d 851, 855 ([Pa.] 1958) (collecting cases). To

meet that heavy burden of proof, a challenger must

demonstrate that the legislative enactment at issue

clearly, palpably, and plainly violates the Constitution,

such that there is no doubt or hesitation in the mind of

the court. See id. (explaining that a ‘legislative enactment

can be declared void only when it violates the fundamental

law clearly, palpably, plainly and in such manner as to leave

no doubt or hesitation in the minds of the court’).

“This Court’s review is limited to a determination of whether the trial court committed

legal error and whether the findings were supported by the evidence.” Wecht v. Roddey, 815 A.2d

1146, 1149 (Pa. Cmwlth. 2002). “The question of whether the [trial] court[] erred in preventing the

placement of the [Ordinance], on the [] County ballot is a pure question of law. Accordingly, our

scope of review is plenary and our standard of review is de novo.” In re Voter Referendum Petition

Filed August 5, 2008, 981 A.2d 163, 170 (Pa. 2009).

The trial court did not address the constitutionality of Section 5-1101.02(C)(3)(e) of the

Administrative Code; however, because it is a pure question of law, see Fross v. Cty. of Allegheny,

20 A.3d 1193 (Pa. 2011), and this Court’s review is de novo, see In re Voter Referendum Petition

Filed August 5, 2008, we will address the issue herein.

Rufo v. Bd. of License & Inspection Review, 192 A.3d 1113, 1120 (Pa. 2018) (citation

omitted; emphasis added).

Section 5-1101.02(C)(3) of the Administrative Code provides, in

relevant part: “As the powers of the [sic] are determined by applicable law, the

following areas cannot be the subjects of agenda initiative or of voter referendum: . . .

[r]egistration of electors and conduct of elections[.]” Appellee Br. Appendix A at 2.

Section 5-1101.01 of the Administrative Code defines agenda initiative as:

The presentation to County Council a petition with at least

500 signatures of registered voters in [the] County

proposing an [o]rdinance for Council’s consideration and

vote within the next 60 days. The proposed [o]rdinance

must be germane to County [g]overnment and limited to

one subject clearly expressed in its title. Pursuant to Article

XII, § 1.12-1201, of the [CHRC], an agenda referendum

petition is defined to be the same as an agenda initiative

petition.

Appellee Br. Appendix A at 1. Voter referendum is defined as:

The filing with the applicable election officials on or before

the 13th Tuesday prior to the next primary or general

election a petition containing a proposed ordinance for

referendum signed by registered voters comprising at least

5% of the number of registered voters in the County voting

for the Office of Governor in the most recent gubernatorial

general election. The applicable election official shall place

the proposal on the ballot for decision by referendum at said

election.

Id.

Our Supreme Court explained:

[U]nlike states such as California, governance by referenda

is a relatively rare occurrence in Pennsylvania, where we

hold strong to the ideals of representative democracy and

have no general constitutional provision for voter

initiative or referenda. See English v. Commonwealth,

845 A.2d 999, 1002 (Pa. Cmwlth. 2004) (‘[N]either Article

I, Section 2 nor any other provision of the Pennsylvania

Constitution provides an unlimited right to challenge

laws via initiative and referendum.’); Governor’s Center

for Local Government Service, Pennsylvania Department of

Community and Economic Development, Referendum

Handbook (1999). Instead, referenda are limited to areas of

the law that are specifically identified either in our

Constitution or by act of the General Assembly. . . . An

exception to the general rule against referenda is contained

in many Home Rule Charters, including that of Allegheny

County.

In 2000, Allegheny County adopted the Home Rule Charter,

which in relevant part, provided for the rights of initiative

and referendum. The preamble to the Charter provides[:]

‘We the people of Allegheny County, Pennsylvania, believe

that: . . . [a] home rule government that permits initiative

and referendum will respond to the concerns of its citizens.’

Article XII of the Home Rule Charter sets forth three areas

for voter involvement. First, ‘voters of the County shall

have the power to propose ordinances by petition for

consideration by County Council.’ Home Rule Charter,

Article XII, § 1 (entitled ‘Agenda Initiative’). Section 2,

entitled ‘Voter Referendum,’ provides, ‘voters of the

County shall have the power to propose ordinances by

petition for consideration by the voters of the County.’

Home Rule Charter, Article XII, § 2(a). Voter referendum

questions must be germane to County government and

involve a single subject, clearly expressed in the title.

Moreover, the petition seeking a voter referendum must be

signed by voters of the County comprising five percent of

the number of voters who voted in the most recent

gubernatorial election, which currently requires

approximately 23,000 voters. [CHRC,] Article XII, § 2(b).

If approved by the voters, the ordinance proposed in the

referendum question ‘shall become effective in accordance

with its terms’ and ‘shall not be subject to veto and shall not

be amended or repealed by County Council for two years

following its approval.’ [CHRC,] Article XII, § 2(d).

Finally, the third method of voter involvement is amending

the Home Rule Charter through a referendum initiated by

ordinance of County Council or by petition of voters.

[CHRC], Article XII, § 3 (entitled ‘Amendment of the

[CHRC]’).

In re Voter Referendum Petition Filed August 5, 2008, 981 A.2d 163, 171 (Pa. 2009)

(citations and footnotes omitted).

OpenPittsburgh.Org appears to argue that Section 5-1101.02(C)(3)(e) of

the Administrative Code violates Article IX, Section 2 of the Pennsylvania

Constitution because “local referenda on the authorization of voting machines is

expressly authorized under the Pennsylvania Constitution and by acts of the General

Assembly.” OpenPittsburgh.Org Br. at 18. However, this Court has expounded:

[Article IX, Section 2 of the Pennsylvania Constitution]

limits the power of state government to infringe on the

natural rights of citizens and recognizes the right to alter,

reform or abolish government. Nonetheless, there is no

legal authority indicating that the provision has ever

been interpreted to create an inherent right to exercise

initiative and referendum as to every legislated measure.

Nor does the language of Article I, Section 2 [of the

Pennsylvania Constitution] contradict the basic rule of law

that the General Assembly has authority to exclude

certain legislative matters from the initiative and

referendum process. Williams v. Rowe, . . . 283 A.2d 881

([Pa. Cmwlth.] 1971) (in a representative form of

government, the General Assembly possesses legislative

discretion to preclude specific matters from the referendum

process).

English v. Commonwealth, 816 A.2d 382, 387 (Pa. Cmwlth. 2003).

Based on the above, this Court rules that OpenPittsburgh.Org has failed

to “demonstrate that the legislative enactment at issue clearly, palpably, and plainly

violates the Constitution, such that there is no doubt or hesitation in the mind of

the court.” Rufo, 192 A.3d at 1120 (emphasis added). Accordingly, because

OpenPittsburgh.Org has not met its “heavy burden of proving that [Section 5-

1101.02(C)(3)(e) of the Administrative Code] is unconstitutional[,]” this Court

cannot rule that Section 5-1101.02(C)(3)(e) of the Administrative Code is

unconstitutional. Id.

OpenPittsburgh.Org next argues that the Ordinance is legally proper

under the CHRC and the HRC&OPL, as it does not involve the conduct of elections

as defined by Pennsylvania law.

Initially, Section 2962(a) of the HRC&OPL provides, in relevant part:

With respect to the following subjects, the home rule

charter shall not give any power or authority to the

municipality contrary to or in limitation or enlargement

of powers granted by statutes which are applicable to a class

or classes of municipalities: . . . [t]he registration of electors

and the conduct of elections.

53 Pa.C.S. § 2962(a) (emphasis added). Section 3107-C(h) of the Second Class

County Code6 states in pertinent part:

With respect to the following subjects, the charter shall

not give any power or authority to the county contrary

to or in limitation or enlargement of powers granted by

acts of the General Assembly which are applicable to

counties of the second class: . . . [t]he registration of

electors and the conduct of elections.

16 P.S. § 6107-C(h) (emphasis added). Correspondingly, the CHRC establishes that

the procedures for agenda referendum petitions shall be established in the

Administrative Code, see CHRC, Art. XII §§ 1.12-1201, which prohibits agenda

initiative or voter referendum involving the conduct of elections. See

Administrative Code, § 5-1101.02(C)(3).

OpenPittsburgh.Org relies upon Bell v. Lehigh County Board of

Elections, 729 A.2d 1259 (Pa. Cmwlth. 1999), wherein this Court adopted and

attached the Lehigh County Common Pleas Court’s (Bell trial court) opinion, to

support its position. The Bell trial court discussed the meaning of the conduct of

elections in the context of whether “the entire initiative process adopted by

Act of July 28, 1953, P.L. 723, No. 230, as amended, added by Section 3 of Act of May

20, 1997, P.L. 149, No. 12, 16 P.S. § 6107-C(h). Allegheny County is a second class county.

[Allentown] in its home rule charter was beyond the scope of [Allentown’s] legal

authority under the Pennsylvania Home Rule Charter Law.” Id. at 1263. The Bell

trial court concluded, which this Court adopted:

Subchapter D [of the HRC] entitled: Conduct and Result of

Elections] insofar as it deals with ‘the conduct of elections’

covers only the procedures for voting and tabulating the

votes under the Election Code. It does not encompass the

process of determining whether a matter is to be placed

on the ballot. This is strong evidence that the General

Assembly did not intend to include the initiative and

referendum processes in the phrase ‘the conduct of

elections’. . . .

Bell, 729 A.2d at 1266 (emphasis added).

In the instant case, Section 1205.1 of the Ordinance states in relevant

part:

The intent of this article is to establish a Voting Process

Review Commission having technical expertise, election

operating experience, and an awareness of the requirements

for voters with special needs, that will conduct regular

periodic reviews of the equipment and software utilized by

the County for its voting system and related administrative

support and of the policy, practices, processes, and

procedures which may involve or affect the conducting of

elections . . . .

Reproduced Record (R.R.) at 215a (emphasis added). Section 1205.2 of the

Ordinance establishes the Voting Process Review Commission and states:

A[] [] County Voting Process Review Commission shall be

created and empowered as provided herein to conduct

evaluation reviews to assess the viability, efficiency, and

effectiveness of the County’s hardware and accompanying

software used for its voting system and administrative

support, and, of policies, practices, processes, and

procedures that pertain to or may affect conducting of

elections.

Id. (emphasis added). As the Ordinance itself expressly states that its purpose is to

create a commission to review the equipment and “policy, practices, processes, and

procedures which may involve or affect the conducting of elections” and that the

Voting Process Review Commission will be empowered to review the County’s

“policies, practices, processes, and procedures that pertain to or may affect

conducting of elections[,]” the Bell analysis is not warranted. Id. The Ordinance

leaves no doubt that it involves the conduct of elections. Notwithstanding, as the

Voting Process Review Commission established by the Ordinance is empowered “to

assess the viability, efficiency, and effectiveness of the County’s hardware and

accompanying software used for its voting system[,]” id., the Ordinance clearly

involves “the procedures for voting and tabulating the votes under the Election Code.

. . .” Bell, 729 A.2d at 1266. Consequently, the Ordinance involves “the conduct of

elections,” as that term was established in Bell. Id. Accordingly, the Ordinance is

not authorized by the CHRC or the HRC&OPL.7

This Court notes that the Ordinance would also require County Council to initiate a voter

referendum under the CHRC. See Section 1205.16(A) of the Ordinance (“County Council shall by

resolution cause a referendum question to be placed on the ballot in a special election[.]”). Our

Supreme Court has held that County Council has no authority to initiate a voter referendum on any

subject other than an amendment of the CHRC pursuant to Article XII, §3 thereof. See In re Voter

Referendum. Specifically, the Supreme Court explained:

County Council has no authority to enact a referendum under the

[CHRC]. . . . The [CHRC] has no provision for County Council to

propose voter referendums, outside of an amendment of the [CHRC].

The only method for placing a voter referendum on the ballot is

through the collections of currently 23,000 signatures of registered

voters (five percent of the number who voted in the most recent

gubernatorial election.)

Id. at 178. Our Supreme Court concluded: “[T]o allow a majority of the nine council[]members to

place a referendum on the ballot undermines the protections placed in the [CHRC] and potentially

opens the County to a dramatic change in governance without an amendment to the [CHRC].” Id.

As such, the Ordinance would fail on this point as well.

OpenPittsburgh.Org next asserts that the Ordinance can be read in

conjunction with the Election Code and the Pennsylvania Constitution because it

follows the electors’ constitutional right to select devices used for recording and

computing votes.

Pennsylvania Constitution Article VII, Section 6 provides:

All laws regulating the holding of elections by the citizens,

or for the registration of electors, shall be uniform

throughout the [s]tate, except that laws regulating and

requiring the registration of electors may be enacted to

apply to cities only, provided that such laws be uniform for

cities of the same class, and except further, that the

General Assembly shall, by general law, permit the use

of voting machines, or other mechanical devices for

registering or recording and computing the vote, at all

elections or primaries, in any county, city, borough,

incorporated town or township of the Commonwealth, at

the option of the electors of such county, city, borough,

incorporated town or township, without being obliged to

require the use of such voting machines or mechanical

devices in any other county, city, borough, incorporated

town or township, under such regulations with reference

thereto as the General Assembly may from time to time

prescribe. The General Assembly may, from time to time,

prescribe the number and duties of election officers in any

political subdivision of the Commonwealth in which voting

machines or other mechanical devices authorized by this

section may be used.

Pa. Const. art. VII, § 6 (emphasis added). Section 302 of the Election Code states, in

relevant part:

The county boards of elections, within their respective

counties, shall exercise, in the manner provided by [the

Election Code], all powers granted to them by [the Election

Code], and shall perform all the duties imposed upon them

by [the Election Code], which shall include the following: .

[t]o purchase, preserve, store and maintain primary and

election equipment of all kinds, including voting booths,

ballot boxes and voting machines, and to procure ballots

and all other supplies for elections.

25 P.S. § 2642 (emphasis added). Because the Pennsylvania Constitution reserves

the power to provide, by general law, the use and choice of voting machines to the

General Assembly, and the General Assembly has enacted the Election Code which

delegates said power to the County’s Board of Elections (Elections Board), the

Election Code is the final authority on voting machines in this Commonwealth.

Thus, the Elections Board has the exclusive control over election equipment.

Section 5-1205.16 of the Ordinance establishes:

A. If the [Voting Process Review] Commission’s

preliminary review finds the County’s present voting

system fails to meet all of the mandatory minimum criteria

and that updating, upgrading or modifying it would be

insufficient, or, if at a later point in its continuing review

the Commission deems full replacement of the existing

voting system to be necessary or advisable and the preferred

alternative, then upon the [Voting Process Review]

Commission’s request, County Council shall by

resolution cause a referendum question to be placed on

the ballot in a special election; a yes vote to the question

approving, and a no vote rejecting, replacement as

designated by the [Voting Process Review] Commission;

the question to read: ‘Shall the County of Allegheny

replace its current voting system in accordance with the

designation and recommendations of the Voting Process

Review Commission?’

B. A referendum to approve or reject replacement of the

existing voting system shall be scheduled for no later than

would enable implementation of the [Voting Process

Review] Commission’s findings prior to the municipal

election cycle preceding the next presidential election.

C. In the time before the referendum, under the direction of

the [Voting Process Review] Commission, the County

shall conduct an educational program to adequately

notify the public about the Referendum and the

considerations involved so voters can make an informed

decision.

D. Should the referendum question receive a majority vote

approving the replacement, then the County shall

immediately proceed as designated in the [Voting

Process Review] Commission’s Final Report.

Alternatively, should the question receive a majority vote

rejecting the designated replacement, the replacement of the

voting system shall not proceed, except that the

Pennsylvania Secretary of State or a court of competent

jurisdiction may with just cause require the replacement. In

any case, the Final Report’s other designated actions and

recommendations shall be deemed still effective.

R.R. at 223a (emphasis added). Section 5-1205.17 of the Ordinance further provides,

in pertinent part:

A. Upon the public release and presentation of the Final

Report of the Voting Process Review Commission, its

findings shall be presented to the [Elections Board] and

to County Council. In addition, [Voting Process Review]

Commission members shall meet with the [Elections] Board

and Council as needed to provide additional information,

answer questions, and assist implementation of the [Voting

Process Review] Commission’s designated voting system

requirements and recommendations.

B. In order to avoid obstructive issues of timing and to

provide ample funding in adequate time for the potential

implementation of a new voting system designated by

the first Voting Process Review Commission and of its

recommendations, such to be available for the 2019

Municipal election cycle:

(1) Upon enactment of this [O]rdinance, [County] Council

and the Administration shall proceed with the transfer of

all remaining bond proceed appropriations from the

[Help America Vote Act (]HAVA[)8] Compliant Voting

Machines project and all remaining appropriations

from those transferred in 2006 to a project entitled

HAVA Compliant Voting Machines Paper Verification

System Upgrade to a new project established for the

purpose of implementing the designated voting system

42 U.S.C. §§ 15301-15545.

requirements and recommendations of the Voting Process

Review Commission;

(2) With replacement of the entire voting machine inventory

likely to necessitate capital expenditures which would be

too large to fit into the existing capital budget for a given

year merely by amending it, the Administration and

[County] Council shall, upon enactment of this

[O]rdinance, initiate the necessary budgeting process(es)

for appropriation and allocation of an amount sufficient

to cover the anticipated need with such being assigned to

a project fund that is dedicated to and set aside specifically

for implementation of the [Voting Process] Review

Commission’s designated voting system requirements and

additional recommendations;

(3) Upon release of the Commission’s Final Report, such

appropriation(s) and allocation(s) as necessary shall be

amended and adjusted to make available an amount

sufficient to fully fund implementation of the [Voting

Process Review] Commission’s designated voting system

requirements and additional recommendations, with

such being placed into the project fund designated for such

purpose;

(4) To ensure there will be enough lead time for a budget

cycle to take place and for budget adjustments and/or

amendments to be made upon release of the [Voting

Process Review] Commission’s Final Report, the

necessary budget process shall be expedited as possible

to make the funding available as needed for implementation

of the [Voting Process Review] Commission’s designated

system requirements, which if for a new voting system shall

be upon approval of the electorate by referendum, and for

any additional recommendations;

(5) The project fund for implementation of the [Voting

Process Review] Commission’s designated system and

additional recommendations shall be used by the

Administration for the acquisition of voting system

equipment, hardware, and software, for related

contractual arrangements, and for such other ancillary

purposes as designated by the [Voting Process] Review

Commission in compliance with the provisions of this

ordinance and shall be made available to the [Elections

Board] to implement, as it may, recommendations from the

Voting Process Review Commission.

R.R. at 223a-224a (emphasis added).

A review of the above Ordinance provisions reveals that the Voting

Process Review Commission would, in effect be acting as the General Assembly

and/or the Elections Board by mandating that the County Council by resolution cause

a referendum question to be placed on the ballot in a special election and by further

mandating the County Council proceed as designated in the Voting Process Review

Commission’s Final Report. The Ordinance not only usurps the General Assembly’s

authority and the Elections Board’s control over Commonwealth voting machines,

but also the funding thereof. Accordingly, the trial court properly concluded that the

Ordinance arrogates the General Assembly’s power and undermines the Elections

Board’s responsibilities.

Lastly, OpenPittsburgh.Org argues the Ordinance’s severability clause

enables County Council to enact all of the Ordinance’s lawful provisions and sever

any individual unlawful, invalid, void or unenforceable provisions therefrom without

rejecting the Ordinance in full.9

Section 3 of the Ordinance provides: “If any provision of this

Ordinance shall be determined to be unlawful, invalid, void or unenforceable, then

that provision shall be considered severable from the remaining provisions of this

Ordinance which shall be in full force and effect.” R.R. at 225a (italic and bold

emphasis in original).

This Court notes that the doctrine of severability applies to duly enacted laws, and

OpenPittsburgh.Org has failed to cite to any precedent which requires the General Assembly, or in

this case County Council, to sever parts of any statute, law or ordinance that are merely proposed

and not already enacted and later challenged. However, in an abundance of caution this Court will

address the issue herein.

Section 1925 of the Statutory Construction Act of 1972 (SCA)

establishes:

The provisions of every statute shall be severable. If any

provision of any statute or the application thereof to any

person or circumstance is held invalid, the remainder of the

statute, and the application of such provision to other

persons or circumstances, shall not be affected thereby,

unless the court finds that the valid provisions of the statute

are so essentially and inseparably connected with, and so

depend upon, the void provision or application, that it

cannot be presumed the General Assembly would have

enacted the remaining valid provisions without the void

one; or unless the court finds that the remaining valid

provisions, standing alone, are incomplete and are incapable

of being executed in accordance with the legislative intent.

1 Pa.C.S. § 1925.10 “Thus, we turn to consider whether the statute can survive

without those invalid provisions, with principal focus on the legislature’s intent. 1

Pa.C.S. § 1925; Saulsbury v. Bethlehem Steel Co., . . . 196 A.2d 664, 667 ([Pa.] 1964)

(‘In determining the severability of a statute or ordinance, the legislative intent is of

primary significance.’).” Commonwealth v. Hopkins, 117 A.3d 247, 259 (Pa. 2015)

(emphasis added).

After reviewing the Ordinance and the applicable law, this Court

concludes that the Ordinance is an invalid usurpation of the General Assembly’s

power involving the conduct of elections and undermines the Elections Board’s

responsibilities with respect to elections by establishing a Voting Process Review

Commission which not only reviews the election process, but also determines how

and when new voting machines are funded, and specifies a particular time when

County Council shall issue a referendum involving new voting machines.

“Although the [SCA] does not apply expressly to . . . ordinances, the principles contained

in [the SCA] are followed in construing a[n] . . . ordinance.” Trojnacki v. Bd. of Supervisors

Solebury Twp., 842 A.2d 503, 509 (Pa. Cmwlth. 2004) (quoting Tobin v. Radnor Twp. Bd. of

Comm’rs, 597 A.2d 1258, 1264 (Pa. Cmwlth. 1991)).

Consequently, “[b]ecause of the significant provisions found to violate the

[Administrative Code and the HRC&OPL], which clearly express the intent of the

[Ordinance] that [it involves the conduct of elections], . . . [this Court] find[s] the

remaining unoffending provisions of [the Ordinance] are incapable of being

severed[.]” Id. at 262.

For all of the above reasons, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge