Constitution Party of Pa. v. Cortes

• Decision Date: 23 July 2015
• Docket Number: Civil Action No. 12–CV–2726.
• Citation: 116 F.Supp.3d 486
• Parties: THE CONSTITUTION PARTY OF PENNSYLVANIA, et. al., Plaintiffs, v. Pedro CORTES, et. al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

116 F.Supp.3d 486

THE CONSTITUTION PARTY OF PENNSYLVANIA, et. al., Plaintiffs,
v.
Pedro CORTES, et. al., Defendants.

Civil Action No. 12–CV–2726.

United States District Court, E.D. Pennsylvania.

Signed July 23, 2015.

116 F.Supp.3d 488

Oliver B. Hall, Washington, DC, James N. Clymer, Clymer & Musser PC, Lancaster, PA, for Plaintiffs.

Gregory R. Neuhauser, Sean A. Kirkpatrick, Office of the Attorney General, Harrisburg, PA, Kevin R. Bradford, Office of the Attorney General, Philadelphia, PA, for Defendants.

MEMORANDUM

STENGEL, District Judge.

This is an action brought by three political parties to challenge a portion of Pennsylvania's Election Code. The Constitution Party of Pennsylvania (CPPA), the Libertarian Party of Pennsylvania (LPPA), the Green Party of Pennsylvania (GPPA), and several party leaders¹ contend that the Commonwealth's ballot access rules violate the First and Fourteenth Amendments to the United States Constitution. Specifically, plaintiffs attack 25 P.S. § 2911(b)² and

116 F.Supp.3d 489

25 P.S. § 2937³ which, in combination, force a minority party to assume the risk of incurring substantial financial burdens to defend nomination papers they are required by law to submit. Plaintiffs assert both as-applied and facial challenges against the Election Code. The defendants are Pedro Cortes, the Secretary of the Commonwealth, and Jonathan Marks, the Commissioner of the Bureau of Commissions, Elections, and Legislation.⁴ The plaintiffs and the defendants have filed cross motions for summary judgment. For the reasons that follow, I find that the statutes are unconstitutional as applied to the plaintiffs but they are facially valid.

I Background

To place the plaintiffs' allegations in context, I will first discuss the relevant provisions of the Pennsylvania Election Code.

a) The Pennsylvania Election Code

The Pennsylvania Election Code distinguishes political parties from political bodies. 25 P.S. § 2831(a). A political party is one whose candidates "polled a total vote in the State equal to at least two per centum of the largest entire vote cast in the State for any elected candidate" in the preceding general election.⁵ Id. Political bodies are those groups which do not cross the 2% threshold. § 2381(c). The Election Code further classifies political parties as either major or minor parties. Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 350–51 (3d Cir.2014) (citing § 2872.2(a)). A minor party is "a political party whose state-wide registration is less than fifteen per centum of the combined state-wide registration for all state-wide political parties ...." § 2872.2(a). The major parties⁶ are those whose membership exceeds 15% of all registered voters.

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Aichele, 757 F.3d at 350–51. "At present, there are only two major parties in Pennsylvania, the Democratic Party and the Republican Party, as has been the case since the election code was enacted more than three-quarters of a century ago." Id. at 351.

Neither the CPPA, LPPA nor GPPA fielded candidates in the 2014 general election and are currently classified as political bodies. Pls.' Statement of Undisputed facts, doc. no. 60–2, ¶ 40. In earlier years, plaintiffs have qualified as minor political parties. Pls.' Statement of Undisputed Facts ¶¶ 1–3.⁷ "Ultimately, the distinction between minor parties and political bodies is of less consequence in this case than is the distinction between major parties and non-major parties, since all non-major parties face essentially the same fight to get their candidates on the ballot through the submission of nominating papers." Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 351 (3d Cir.2014). Despite the plaintiffs' current classification, I will, at times, refer to the plaintiffs as the minor parties.

The major political parties place their candidates on the general election ballot by way of publicly funded primary elections. § 2862. To access the primary election ballot, This dispute is immaterial. It is enough that the both sides agree that plaintiffs at one time or another qualified as minor parties. major party candidates for President, United States Senator and Governor⁸ must submit nomination petitions containing at least 2,000 valid signatures of registered members of their party. § 2872.1. Major party candidates for Pennsylvania Treasurer, Auditor General and Attorney General must obtain 1,000 valid signatures.⁹ Id. Major party candidates for statewide office circulate nomination petitions for three weeks ending on the tenth Tuesday prior to the primary election when they must file the petitions with the Secretary of the Commonwealth. §§ 2868, 2873(c). "The winner of the plurality of votes in the primary is placed on the general election ballot as the candidate of his or her respective party." Rogers v. Corbett, 468 F.3d 188, 191 (3d Cir.2006).

Minor party, political body and independent candidates do not run in primary elections. § 2872.2; § 2911. Instead, they must circulate nomination papers in order to place their names on the general election ballot. § 2911(b). For statewide candidates,¹⁰ the number of valid signatures required must exceed 2% of the "largest entire vote cast for any elected candidate in the State at large at the last preceding election at which Statewide candidates were voted for." § 2911(b). In recent years, the minimum signature requirement has been 25,697 in 2004; 67,070 in 2006; 24,666 in 2008; 19,056 in 2010; 20,601 in 2012; and 16,639 in 2014. Pls.' Statement of Undisputed Facts ¶ 10. Candidates have approximately five months to circulate

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nomination papers which must be filed on or before August 1. § 2913(b); Rogers, 468 F.3d at 191 ; Dfs.' Statement of Undisputed Facts, doc. no. 59–2, ¶ 14.¹¹ The 2% signature requirement was enacted in 1971,¹² Aichele, 757 F.3d at 353 (internal citations omitted), and does not violate plaintiffs' associational rights or their rights to equal protection of the law. Rogers, 468 F.3d at 197–98.

The Secretary must examine both the nomination petitions filed by major party candidates and the nomination papers¹³ filed by non-major party candidates and reject those petitions and papers which contain material errors, material alterations, or an insufficient number of signatures. § 2936. Although permitted to do so, id., the Secretary and his staff do not review the validity of signatures appearing on the nomination petitions and papers. Defs.' Statement of Undisputed Facts ¶ 18. The verification of signatures is left to private parties who, within seven days of the filing deadline, may object to the validity of a candidate's signatures and petition¹⁴ the Commonwealth Court to set aside the nomination petition or paper. § 2937 ; In re Nader, 588 Pa. 450, 905 A.2d 450, 459 (2006) ( "Commonwealth Court has original exclusive jurisdiction of matters relating to statewide office."). The Commonwealth Court must set aside the nomination petition or paper if it finds:

that said nomination petition or paper is defective under the provisions of [§ 2936 ] or does not contain a sufficient number of genuine signatures of electors entitled to sign the same under the provisions of this act, or was not filed by persons entitled to file the same....

§ 2937. "[A] member of an opposing party [or an unaffiliated elector] does not have standing to challenge the nomination petition of a candidate in another party's primary election." In re Williams, 155 Pa.Cmwlth. 494, 625 A.2d 1279, 1281 (1993). On the other hand, any registered voter in the Commonwealth, regardless of party affiliation, may challenge the nomination paper of a non-major party candidate seeking a place on the general election ballot. Cf. In re Barlip, 59 Pa.Cmwlth. 178, 428 A.2d 1058, 1060 (1981) ( "[I]t is clear that any person who is registered to vote in a particular election has a substantial interest in obtaining compliance with the election laws by any candidate for whom that elector may vote in that election, and such electors therefore have standing to challenge the nominating petitions of those candidates.")

Pennsylvania is the only state which venues petition verification in the judiciary.

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Pls.' Statement of Undisputed Facts ¶ 13. Other states shoulder the costs of petition verification, and the task is conducted by the employees of an executive branch agency. Id. The process is quite different in Pennsylvania. At the beginning of each challenge proceeding, the Commonwealth Court issues its standing order instructing both the candidate and objector to provide workers to review the signatures on the challenged nomination paper. Pls.' Statement of Undisputed facts ¶ 13. The workers compare the information on the nomination paper with the information recorded in the Statewide Uniform Registry of Electors ("SURE") system.¹⁵ Defs.' Statement of Undisputed Facts ¶ 22. Based on this review, the candidates and objectors stipulate to the validity or invalidity of as many signatures possible. Order at ¶ 5, In Re: Nomination Paper of...