Constitution Party of Pa. v. Cortes

• Decision Date: 02 June 2016
• Docket Number: No. 15-3046,15-3046
• Citation: 824 F.3d 386
• Parties: The Constitution Party of Pennsylvania; The Green Party of Pennsylvania; The Libertarian Party of Pennsylvania; Joe Murphy; James N. Clymer; Carl J. Romanelli; Thomas R. Stevens ; Ken Krawchuk v. *Pedro A. Cortes; Jonathan M. Marks, Appellants. *(Pursuant to Rule 43(c), Fed. R. App. P.)
• Court: U.S. Court of Appeals — Third Circuit

824 F.3d 386

The Constitution Party of Pennsylvania; The Green Party of Pennsylvania; The Libertarian Party of Pennsylvania; Joe Murphy; James N. Clymer; Carl J. Romanelli; Thomas R. Stevens ; Ken Krawchuk

v. *Pedro A. Cortes; Jonathan M. Marks, Appellants.*(Pursuant to Rule 43(c), Fed. R. App. P.)

No. 15-3046

United States Court of Appeals, Third Circuit.

Argued April 13, 2016

Filed: June 2, 2016

James N. Clymer, Clymer Musser Brown & Conrad, 408 West Chestnut Street, Lancaster, PA 17603, Oliver B. Hall (Argued), Center for Competitive Democracy, 1835 16th Street N.W., Washington, DC 20009, Counsel for Appellees

Kevin R. Bradford, Claudia M. Tesoro (Argued), Office of Attorney General of Pennsylvania, 21 South 12th Street, Philadelphia, PA 19107, Sean A. Kirkpatrick, Office of Attorney General of Pennsylvania, Strawberry Square, 16th Floor, Harrisburg, PA 17120, Gregory R. Neuhauser, Office of Attorney General of Pennsylvania, Strawberry Square, 15th Floor, Harrisburg, PA 17120, Sarah C. Yerger, Post & Schell, 17 North 2nd Street, 12th Floor, Harrisburg, PA 17101, Counsel for Appellants

Before: AMBRO, SMITH, and KRAUSE, Circuit Judges

OPINION

SMITH, Circuit Judge.

While the outcome of this case may yield major consequences, we are, as the Commonwealth concedes, confronted with two “relatively narrow” and “more technical issues” on appeal. Appellants' Br. 3. This lawsuit challenges the constitutionality of two provisions of Pennsylvania's election code: 25 Pa. Stat. Ann. §§ 2911(b) and 2937. These provisions, respectively, (1) regulate the number of signatures required to attain a position on the general election ballot and (2) govern the process by which private individuals can sue in the Pennsylvania Commonwealth Court to challenge the validity of a candidate's nomination paper or petition. At the summary judgment stage, the District Court held that, acting in combination, the two statutory provisions as applied to the Appellees violated their First and Fourteenth Amendment rights. Yet on appeal the Commonwealth challenges only two technical issues on which it believes it can prevail, even “assuming some constitutional injury.” Appellants' Br. 3. First, the Commonwealth argues that neither state official sued here has a sufficient connection to the challenged code provisions to be a proper defendant. Second, it argues that the District Court's order was “incoherent on its face,” id. at 36, and thus provided no practical benefit to the Appellees. For the reasons discussed below, we reject both arguments and will affirm the District Court's order.

I.

The Appellees in this case are the Constitution Party of Pennsylvania, the Green Party of Pennsylvania, and the Libertarian Party of Pennsylvania; their respective chairmen—Joe Murphy, Carl Romanelli, and Thomas Robert Stevens; James Clymer, a member of the Constitution Party; and Ken Krawchuk, a former Libertarian Party candidate for the U.S. Senate. For ease of reference and consistency with our earlier opinion in this case, we will refer to the Appellees collectively as the “Aspiring Parties.”¹ They filed suit against the Secretary of the Commonwealth of Pennsylvania, Pedro Cortes, and the Commissioner of the Pennsylvania Bureau of Commissions, Elections, and Legislation, Jonathan M. Marks (collectively, the “Commonwealth” or the “officials”) in their official capacities.

A.²

In order to fully understand this appeal, it is necessary to provide some background regarding Pennsylvania's election code. To begin, the code distinguishes between “political parties” and “political bodies.” 25 Pa. Stat. Ann. § 2831. An organization qualifies as a “political party” if, during the most recent general election, one of its candidates polled at least two percent “of the largest entire vote cast” in each of at least ten counties and “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.” Id. § 2831(a). Political parties may then be categorized as either major or minor parties. Id. § 2872.2(a); Rogers v. Corbett , 468 F.3d 188, 190–91 (3d Cir. 2006). Minor parties are defined as parties receiving less than fifteen percent of the total statewide registration for all political parties, 25 Pa. Stat. Ann. § 2872.2(a), while parties with more support, at present only the Democratic and Republican Parties, are deemed major parties, Rogers , 468 F.3d at 191. “Political bodies” are organizations that did not have a candidate who crossed the two-percent threshold in the last election, and so they do not qualify for the benefits of being either a minor or a major party. 25 Pa. Stat. Ann. § 2831.

Major parties have the benefit of a publicly funded primary process through which the field of candidates is winnowed down and a party representative is chosen for the general election. See id. § 2862; Rogers , 468 F.3d at 191. To be placed on the primary ballot, a major party candidate needs only to gather, at most, 2,000 signatures. 25 Pa. Stat. Ann. § 2872.1. Minor parties and political bodies (together, “non-major parties”), however, have to put on a much larger signature-gathering campaign to have their nominees appear on the general election ballot. For statewide office in 2016, for example, a non-major party candidate would need to gather 21,775 signatures.³ Appellees' March 1, 2016 Rule 28(j) letter at 2. After collecting these signatures, non-major party candidates are also required to file a nomination paper with the Secretary of the Commonwealth. See id. §§ 2872.2 (“Nominations by minor political parties”), 2911 (“Nominations by political bodies”); Rogers , 468 F.3d at 191. The nomination paper is then examined by the Secretary of the Commonwealth, who must reject the filing of any submission containing “material errors or defects apparent on [its] face ... or on the face of the appended or accompanying affidavits; or ... contain[ing] material alterations made after signing without the consent of the signers; or ... not contain[ing] a sufficient number of signatures.” 25 Pa. Stat. Ann. § 2936.

Even after being received and filed by the Secretary, however, the nomination paper can be subjected to further examination if an individual lodges an objection within seven days of its acceptance and seeks to set aside the nomination paper.⁴ Id. § 2937. If any objections are filed pursuant to § 2937, the Commonwealth Court reviews and holds a hearing on the objections and determines whether the candidate's name will be placed on the ballot. Id. If an objection is successful and a nomination petition or paper is dismissed, “the court shall make such order as to the payment of the costs of the proceedings, including witness fees, as it shall deem just.” Id.

The Pennsylvania Supreme Court has held that, under § 2937, “an award of costs ... is not warranted solely on the basis that the party prevailed”; there must be some further reason, and it is an abuse of discretion for a lower court to award such costs “without identifying any reason specific to [the] case or ... why justice would demand shifting costs to them.” In re Farnese , 609 Pa. 543, 17 A.3d 357, 369–70 (2011). At the same time, however, the court held that, while “fraud, bad faith, or gross misconduct ... may require an award of costs,” “a party's conduct need not proceed to such an extreme before” costs can be shifted. Id. at 372. Thus, under § 2937, costs may be awarded to the person opposing nomination papers if there is some showing that it would be “just” to do so, despite the absence of “fraud, bad faith, or gross misconduct” on the part of the candidate whose nomination paper was challenged. Id.

In 2004, independent presidential candidate Ralph Nader and his running mate were ordered to pay $81,102.19 in costs under § 2937, following a court determination that their Pennsylvania “signature-gathering campaign involved fraud and deception of massive proportions.” In re Nader , 588 Pa. 450, 905 A.2d 450, 455, 460 (2006). That ruling appears to mark the first time costs were ever imposed pursuant to § 2937, and the reverberations from that decision have been significant.

According to the Aspiring Parties, the Nader decision transformed how § 2937 was understood and applied across the Commonwealth. They claim that the threat of extraordinary costs “caused several minor party candidates either to withhold or withdraw their nomination petitions” during the 2006 election cycle. Appellees' Br. at 8. For example, Appellant Krawchuk previously stated that, although the Libertarian Party nominated him as its candidate for United States Senate in 2006, he declined to run “due to the fact that ... Ralph Nader and his running mate ... had recently been ordered to pay $81,102.19.” Constitution Party of Pa. v. Aichele , 757 F.3d 347, 353 (3d Cir. 2014). Thus, according to the Aspiring Parties, in 2006 “only one minor party candidate [ran] for statewide office”: Appellant Romanelli, the Green Party's nominee for United States Senate. Id.

As required by § 2911, Romanelli had to obtain 67,070 valid signatures to get on the ballot in 2006. He submitted 93,829 signatures but was removed from the ballot after private parties affiliated with the Democratic Party filed a successful objection pursuant to § 2937. Romanelli was then ordered to pay costs totaling $80,407.56. In re Nomination Paper of Rogers , 942 A.2d 915, 930 (Pa. Commw. Ct. 2008). The Commonwealth Court found that costs were warranted due to the failure of both Romanelli's campaign and the Green Party to comply with certain court orders, including an order to provide nine people to assist in the review of the nominating signatures and an order to timely provide the court with the “specifics of what stipulated invalid signatures [Romanelli] believed could be rehabilitated.” Id. at 929.⁵

B.

Over the course of the next several election cycles, the effect of the Nader decision continued to deter Aspiring Party candidates...