Out candidate files appeal for reinstatement to Nov. ballot

Sherrie Cohen has filed a lengthy appeal, challenging the ruling of a Philadelphia judge who disqualified her from running for a seat on City Council as an Independent candidate in the general election after having relinquished her primary run as a Democrat.

In an 11-page ruling issued Aug. 16, Common Pleas Judge Abbe F. Fletman opined that Cohen was too late in withdrawing from the primary election to run in the general election as an Independent.

Cohen, a  lesbian, filed a 58-page appeal of that ruling in Commonwealth Court on Aug. 28.  She initially sought to run as a Democrat in the May 21 primary but dropped out of the race in April after her former campaign manager made negative comments about Deja Alvarez’s ancestry during a Trans Day of Visibility celebration.

Alvarez ran as a Democrat for an at-large Council seat. Had she won, she would have been the first openly trans member of the municipal governing body. Alvarez is challenging Cohen’s candidacy as an Independent in the general election.

Of Council’s 17 seats, seven are at-large, including two reserved for non-Democrats — which Republicans have historically held. Cohen hopes to fill one of those posts as an Independent in the Nov. 5 general election.

Her appeal faults Fletman for allegedly interpreting the relevant case law on election matters too narrowly.

“All the case law in election cases cites a need for liberal interpretation to keep — if at all possible — a candidate on the ballot. Judge Fletman failed in not using this liberal interpretation, which is so obvious in this case — particularly since Sherrie Cohen, in her nomination papers, had over 8,000 signatures, which is a very significant number of signatures,” Cohen’s appeal states.

According to Fletman’s ruling, March 27 was the deadline for a candidate to voluntarily withdraw from the primary and still be eligible to run in the general election. Cohen didn’t withdraw from the primary until April 18.

But Cohen argues that she should be able to withdraw after March 27 and still run as an Independent because of a 1980 law that allows candidates to do so if their withdrawal is approved by a judge. Cohen notes that her withdrawal was approved by Common Pleas Judge Idee Fox.

Cohen’s appeal acknowledges that withdrawal from a primary must be voluntary — rather than due to some type of error — for a candidate to be eligible to run in the general election as an Independent. Cohen maintains her withdrawal was voluntary.

“The bottom line is Ms. Cohen made timely voluntary withdrawal by court order,” the appeal states. “Judge Fletman erred and failed to credit Ms. Cohen’s withdrawal as a voluntary withdrawal.”

Cohen’s appeal specifically blasts Fletman’s ruling for not citing the case of Oliviero v. Diven, which the appeal says “clearly” shows that voluntary withdrawals can occur in two ways — either as an administrative withdrawal by March 27 or as a later withdrawal approved by a judge.

Cohen’s appeal emphasizes that she reasonably expected to be able to run as an Independent. “Sherrie Cohen relied on the existing case law discussed above,” the appeal states. “Based on this reasonable reliance, she spent a lot of time and effort, including getting 8,000-plus signatures.  If the law is to be changed, it would be unfair to apply those changes to her due to her reliance on the above discussed existing law.”

The appeal also stresses the right of voters to elect the candidates of their choice.

“Judge Fletman erred in not recognizing the need for a liberal interpretation of the election code in order to protect the candidate’s right to run for office and the voters’ right to elect the candidates of their choice.”

Additionally, the appeal points out that none of Cohen’s nominating signatures has been challenged. “She had strong support for her candidacy and had obtained over 8,000 signatures. None of her signatures were challenged.” the appeal states.

Samuel C. Stretton, an attorney for Cohen, expressed optimism that the appeal will be successful. “I absolutely believe we’re right on this one. The judge misinterpreted or misread the cases,” Stretton told PGN. “The case law is clear that if you voluntarily withdraw from a primary you have a right to be on the general-election ballot if you file your nomination papers, which Sherrrie did.”

Cohen also expressed optimism that she’ll be reinstated. “I turned in 8,300 signatures,’ Cohen told PGN. “These are people who want to see me on the ballot as a candidate. Their rights as voters should be respected. My right as a candidate to choose which race I want to run in should be respected. I’m optimistic that Commonwealth Court will agree.”

Alvarez said she’s confident her challenge will be successful. “I’m confident with our position that Sherrie Cohen dropped out of the primary too late to run in the general election,” Alvarez told PGN. “I have faith in Judge Fletman’s legal expertise and that her ruling will stand.”