Benezet Consulting, LLC v. Boockvar

• Decision Date: 13 January 2020
• Docket Number: No. 1:16-cv-00074,1:16-cv-00074
• Citation: 433 F.Supp.3d 670
• Parties: BENEZET CONSULTING, LLC, et al., Plaintiffs v. Kathy BOOCKVAR and Jonathan Marks, Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

433 F.Supp.3d 670

BENEZET CONSULTING, LLC, et al., Plaintiffs

v.Kathy BOOCKVAR and Jonathan Marks,¹ Defendants

No. 1:16-cv-00074

United States District Court, M.D. Pennsylvania.

Filed January 13, 2020

Paul Anthony Rossi, Kennett Square, PA, for Plaintiffs.

Timothy E. Gates, Office of General Counsel, Department of State, Keli M. Neary, Office of Attorney General, Nicole J. Boland, Office of Attorney General Civil Litigation Section, Harrisburg, PA, for Defendants.

MEMORANDUM

Kane, Judge

Before the Court are Plaintiffs' motion for partial summary judgment (Doc. No. 44) and Defendants' motion for summary judgment (Doc. No. 41). For the reasons that follow, the Court will grant in part and deny in part the motions.

I. BACKGROUND

A. Procedural Background

Plaintiffs Benezet Consulting, LLC ("Benezet") and Trenton Pool ("Pool") initiated the above-captioned action by filing a complaint against Defendants Pedro A. Cortes ("Cortes"), in his official capacity as the Secretary of the Commonwealth of Pennsylvania – a position currently held by Defendant Kathy Boockvar ("Boockvar") – and Jonathan Marks ("Marks"), in his official capacity as Commissioner for the Bureau of Commissions, Elections and Legislation (referred to together herein as "Defendants") on January 14, 2016,² challenging specific provisions of Pennsylvania's Election Code (the "Election Code"), in connection with Pennsylvania's primary election for President of the United States. (Doc. No. 1.) In their first complaint, Plaintiffs requested, inter alia, a declaratory judgment and emergency permanent injunction "on or before January 25, 2016, enjoining defendants from enforcing the challenged provisions and interpretations" of the Election Code as to Plaintiffs. (Id. at 36.) On January 19, 2016, Plaintiffs filed an amended complaint (Doc. No. 3) and motion for a temporary restraining order or emergency preliminary injunction (Doc. No. 4). The Court denied Plaintiffs' motion for a temporary restraining order on January 27, 2016. (Doc. No. 21.) On January 29, 2016, the Court issued an Order deeming Plaintiffs' motion for an emergency preliminary injunction withdrawn and permitting Plaintiffs to file a second amended complaint. (Doc. No. 24.) Plaintiffs filed a second amended complaint – the operative pleading in this action – on February 16, 2016 (Doc. No. 25), naming Plaintiff Carol Love ("Love") as an additional plaintiff.

In the second amended complaint, Plaintiffs request declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and seek to prohibit Pennsylvania state officials from enforcing certain provisions of the Election Code, 25 P.S. §§ 2868 and 2969. (Id. ¶¶ 1-2.) Counts I and II allege that the state residency requirement for witnesses of nomination petition circulation under Section 2869 (the "In-State Witness Requirement") violates the First Amendment both facially and as applied to Plaintiffs. (Id. at 29-32.) Counts III and IV set forth First Amendment challenges to Section 2869's previous requirement that the affidavit accompanying every nomination petition be notarized (the "Notarization Requirement"), both facially and as applied to Plaintiffs. (Id. at 32-36.) Further, Counts V and VI respectively set forth facial and as-applied challenges to Section 2868's prohibition against qualified electors signing more than one nomination petition under the First Amendment. (Id. at 36-40.)

Plaintiffs also assert additional constitutional claims, in the alternative, for alleged violations of the Equal Protection Clause and the Commerce Clause. Specifically, Counts VII, VIII, and IX set forth equal protection challenges to the In-State Witness Requirement, the Notarization Requirement, and the requirement that registered voters enrolled in major political parties may sign only one nomination petition for each office, respectively. (Id. at 40-44.) Count X sets forth an alternative challenge to the In-State Witness Requirement under the Commerce Clause. (Id. at 44-45.)

Upon the completion of discovery, Defendants filed a motion for summary judgment on December 22, 2016. (Doc. No. 41.) On the same date, Plaintiffs filed a motion for summary judgment (Doc. No. 44), as to all of their claims, but for their challenge to Section 2868's prohibition on qualified electors signing more than one nomination petition, on the basis that this claim requires trial testimony and may not be resolved at the summary judgment stage (Doc. No. 45). On August 29, 2018, Defendants filed a motion for leave to file a supplemental brief addressing an opinion issued by the United States Court of Appeals for the Third Circuit in De La Fuente v. Cortes, No. 17-3778, on August 7, 2018 (Doc. No. 64), which this Court granted on September 14, 2018 (Doc. No. 66). Accordingly, Defendants filed a supplemental brief in support of their motion for summary judgment on September 28, 2018 (Doc. No. 67), to which Plaintiffs filed a brief in response on October 12, 2018 (Doc. No. 68). Defendants filed a reply brief on October 26, 2018. (Doc. No. 71.) On December 20, 2019, the Court ordered Plaintiffs to show cause why their challenges to the Notarization Requirement should not be deemed moot in light of recent amendments to the pertinent portion of the Election Code (Doc. No. 72), to which Plaintiffs filed a response on January 6, 2020 (Doc. No. 73). Having been fully briefed, the parties' motions for summary judgment (Doc. Nos. 41, 44) are ripe for disposition.

B. Factual Background³

In the context of Pennsylvania's primary elections, Section 2868 of the Election Code, 25 P.S. § 2868, provides that qualified electors are prohibited from signing more than one nomination petition for a given office.⁴ Section 2868 reads, in pertinent part, as follows: "Each signer of a nomination petition shall sign but one petition for each office to be filled, and shall declare therein that he is a registered and enrolled member of the party designated in such petition." See 25 P.S. § 2868. In addition, Section 2869 of the Election Code articulates two requirements relevant to the instant action. First, Section 2869 sets forth the In-State Witness Requirement, stating, in pertinent part, that each sheet of a nomination petition "shall have appended thereto the statement of the circulator of each sheet" setting forth that he or she is a qualified elector of the Commonwealth. See 25 P.S. § 2869. Section 2869 also previously set forth the Notarization Requirement, which required that the affidavit accompanying each nomination petition be notarized. See id. Section 2869, however, was amended subsequent to the commencement of this case so as to remove the Notarization Requirement.⁵

Benezet is a Texas limited liability company, of which Pool is the only member, that was formed in 2014 and is involved in the business of gathering signatures for political campaigns. (Doc. No. 46 ¶¶ 1-3.) Benezet's business specifically deals with "political consulting, ballot access[,] and signature gathering" (id. ¶ 4), and Benezet became involved in gathering signatures in 2006 (id. ¶ 6). Pool is a registered Republican in the state of Texas (id. ¶ 99), while Love is a registered Republican who resides in Pennsylvania (id. ¶ 83).

Benezet took part in signature-gathering efforts in Pennsylvania as part of the 2016 presidential election. (Id. ¶¶ 5, 7.) In doing so, Benezet hired signature gatherers as independent contractors, consistent with its past practice. (Id. ¶ 7.) As part of their efforts to gather signatures, "Benezet's circulators ... move[ ] around the country as needed to meet individual state deadlines" (id. ¶ 9), and its "contractors are paid on a per signature basis" (id. ¶ 10).

1. Facts as Stated in Support of Plaintiffs' Motion for Summary Judgment

a. Benezet Consulting and Signature-Gathering

In 2016, Benezet entered into a contract to gather signatures for Ted Cruz in his candidacy for the Republican nomination, Rocky De La Fuente in his candidacy for both the Democratic nomination and as an independent candidate, and Donald Trump as a Republican candidate. (Id. ¶ 5.) Under such contracts, "Benezet's circulators [are] moved around the country as needed to meet individual state deadlines" while its contractors are paid weekly "based on work/signatures actually produced." (Id. ¶¶ 9-10.) Further, "Benezet always hired signature [gatherers] as independent contractors."⁶ (Id. ¶ 7.) During the 2016 presidential election season, Benezet was "paid by Cruz in Pennsylvania on a per signature basis" and "by De La Fuente ... [on] a per signature basis," and under this arrangement, "[t]he more signatures that Benezet collect[ed], the more money that Benezet earn[ed]."⁷ (Id. ¶ 12.)

b. Benezet's Signature-Gathering and the Challenged Election Code Provisions: In-State Witness Requirement

According to Benezet, the In-State Witness Requirement requires it "to charge higher rates per signature than in other states," as Pool "had to pay witnesses to work with his professional circulators in Pennsylvania." (Doc. No. 46 at ¶¶ 15-16.)⁸ The requirement posed additional problems for its signature-gathering efforts during the election because of issues relating to the work performance of certain witnesses, as well as their availability. Specifically, the alleged behavior of one witness in Bucks County, Pennsylvania deterred certain voters from signing a petition for Ted Cruz.⁹ (Id. ¶ 26.) Further, Benezet experienced difficulty in "find[ing] enough witnesses to circulate nomination petitions" in three out of five congressional districts (id. ¶ 27), and "[t]he lack of Pennsylvania in-state witnesses caused Cruz delegates [not to] make it onto the 2016 primary election ballot" (id. ¶ 26). Additionally, Benezet experienced issues with a particular Pennsylvania in-state witness who "extorted additional money from Pool after the signatures had been gathered" and "threaten[ed] not to execute the affidavit unless he was paid more money," an occurrence...