Independent presidential candidate Robert F. Kennedy Jr. speaks to reporters outside the Pennsylvania Commonwealth Justice Center following a confirmation hearing on Tuesday, Aug. 20, 2024. (Capital Star photo by Peter Hall)
Independent presidential candidate Robert F. Kennedy Jr. was barred from testifying Tuesday in a case challenging his attendance at the Pennsylvania ballot box. He arrived nearly two hours late for a hearing in state court after his flight to Harrisburg was canceled.
Commonwealth Court Judge Lori Dumas expressed displeasure at not being notified of Kennedy's delay and denied a request by Kennedy's attorney Paul Rossi to adjourn the hearing to allow Kennedy and another witness more time to arrive.
Both sides had planned to call Kennedy to testify about the Katonah, N.Y., address, where he rents a spare room, that appears on his ballots in Pennsylvania and other states. The challengers allege that Kennedy's real residence is in California, with his wife, “Curb Your Enthusiasm” actress Cheryl Hines.
In Kennedy's absence, Dumas accepted evidence, largely in the form of transcripts from a trial in New York state court. An Albany judge concluded last week that the address in the New York City suburb of Westchester County “was merely a 'fake' address he assumed to maintain his voter registration and to advance his own political aspirations in this state.”
New York District Judge Christina Ryba cited testimony from Kennedy and the homeowner, who said he had slept there only once in the 15 months he lived there. That was two weeks after the case was argued in New York 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 Senator Robert F. Kennedy, and 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 that they chose to vote for. This Democratic Party is doing everything it can 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 argued that Pennsylvania's requirement that candidates provide their addresses is unconstitutional.
Ford said Pennsylvania law requires Kennedy's name to be removed from the ballot because he used the New York address with the intent to mislead voters.
“This is not a good faith excuse situation,” Ford said, noting that the Pennsylvania Supreme Court had previously ruled that there was no intent to deceive voters in a case in which a candidate moved to a new address while distributing nominating petitions.
In a petition filed in Commonwealth Court on August 8, the challengers argue that Kennedy used his New York address because vice presidential candidate Nicole Shanahan also lives in California, posing an insurmountable problem for Kennedy's campaign.
The U.S. Constitution prohibits a state's presidential electors from casting votes for presidential and vice presidential candidates if both are from that state, meaning Kennedy could not have received votes from California's Electoral College, the filing said. But Ford said covering up voter fraud could have been 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 meets constitutional requirements because states have a legitimate interest in protecting their voting rights process and the integrity of elections.
If Dumas concludes that Kennedy's New York speech is correct, Ford said the challengers also claim that Kennedy did not collect enough signatures to get on the ballot.
Independent presidential candidates must collect a number of signatures equal to 2% of the votes cast for the winner of the last election, according to state law. For the 2024 election, that number is 33,043.
In a 2018 case over litigation costs related to contesting ballots, a federal judge ruled that the 2% requirement is unconstitutional because it imposes a “severe burden” on candidates’ constitutional right to freedom of association.
Following the ruling, the Pennsylvania Department of State indicated it would not enforce the requirement and would only accept petitions with at least 5,000 signatures.
Ford noted that Kennedy's petitions do not meet the 33,043 signature requirement and that Kennedy's campaign has claimed that his nationwide campaign for ballot access is “fully funded.” He must show that the requirement imposes a significant burden on his rights, Ford said.
“He wants a rebate from the state without having to go through the trouble of proving that he is entitled to a rebate,” Ford said.
Rossi argued that the requirement that a candidate in a state or local election provide his or her address is valid when voters want proof that the candidate lives in the district or municipality in which he or she is running.
The presidential election is different because “the entire country is the district,” Rossi said, adding that applying state laws to national elections is unconstitutional under the Presidential Qualifications Clause.
Rossi noted that Green Party presidential candidate Ralph Nader's attempt to get on the Pennsylvania ballot in 2004 failed after a weeks-long court battle, despite filing more than twice the required number. He said the 2% requirement is clearly a heavy burden.
“If the 2% rule applies to this use, we essentially have to go to federal court and get an injunction against the deadline for printing early voting ballots,” Rossi said.
A spokesperson for the Pennsylvania Department of State told the Capital-Star that Secretary of the Interior Al Schmidt will determine a final list of candidates as soon as possible, depending on the outcome of the issues.
County boards of elections typically send out mail-in and postal ballots about six weeks before the election. However, mailing can be delayed due to pending litigation that affects the names on a ballot.
“In any event, counties must begin delivering all mail-in ballots no later than October 22, 2024, or two weeks before the election,” said Deputy Communications Director Geoff Morrow.
Rossi said after the hearing that Dumas' decision not to take Kennedy's delays into account was unusual.
“I've never seen a situation where a canceled flight has caused a judge to prevent … a candidate, a witness, from testifying,” Rossi said. “Given that we have the entire day reserved, we could have very easily gotten an extension to have Mr. Kennedy come here and we could have fully presented our case, and we were not allowed to do that.”
