Constitution Party of Pa. v. Aichele

Decision Date09 July 2014
Docket NumberNo. 13–1952.,13–1952.
Citation757 F.3d 347
PartiesThe CONSTITUTION PARTY OF PENNSYLVANIA; The Green Party of Pennsylvania; The Libertarian Party of Pennsylvania; Joe Murphy; James N. Clymer; Carl J. Romanelli; Thomas Robert Stevens; Ken Krawchuk, Appellants v. Carol AICHELE; Jonathan M. Marks; Attorney General Pennsylvania. Carol Sides; Richard J. Tems; Louis Nudi; Damon Kegerise; Anne Layng; Judith Guise, (Intervenor–Defendants).
CourtU.S. Court of Appeals — Third Circuit


Oliver B. Hall, [Argued], Center for Competitive Democracy, Washington, DC, for Appellants.

Sean A. Kirkpatrick, Sarah C. Yerger, Office of Attorney General of Pennsylvania, Harrisburg, PA, Claudia M. Tesoro, [Argued], Office of Attorney General of Pennsylvania, Philadelphia, PA, for Appellees, Carol Aichele, Jonathan M. Marks, Attorney General Pennsylvania.

Before: AMBRO, JORDAN and ROTH, Circuit Judges.


JORDAN, Circuit Judge.

The Appellants, political groups in Pennsylvania and several of their supporters, have invoked 42 U.S.C. § 1983 to challenge the constitutionality of two provisions of Pennsylvania's election code that regulate ballot access, namely title 25, sections 2911(b) and 2937 of Pennsylvania's Consolidated Statutes. Section 2911(b) and a similar section, § 2872.2(a), require that candidates seeking to be included on the general election ballot—other than Republicans and Democrats—must submit nomination papers with a specified number of signatures. Section 2937 allows private actors to object to such nomination papers and have them nullified, and it further permits a Pennsylvania court, as that court deems “just,” to impose administrative and litigation costs on a candidate if that candidate's papers are so rejected. The Appellants contest an order of the United States District Court for the Eastern District of Pennsylvania dismissing their Complaint for lack of standing. We conclude that they do have standing to pursue their constitutional claims, and we will therefore reverse.

I. Factual Background and Procedural History 1

The Appellants are the Constitution Party of Pennsylvania (Constitution Party), the Green Party of Pennsylvania (Green Party), and the Libertarian Party of Pennsylvania (Libertarian Party) (collectively, the “C.G.L. Parties); their respective chairmen—Joe Murphy, Carl Romanelli, and Thomas Robert Stevens; James Clymer, a member of the Constitution Party; and Ken Krawchuk, a former candidate of the Libertarian Party. For ease of reference we will refer to the Appellants collectively as the “Aspiring Parties.” 2 They filed the instant suit against the Secretary of the Commonwealth of Pennsylvania, Carol Aichele; the Commissioner of the Pennsylvania Bureau of Commissions, Elections, and Legislation, Jonathan M. Marks; and the Pennsylvania Attorney General (collectively, the Commonwealth) in their official capacities only.3

To understand the parties' dispute, a brief sketch of the statutory background is necessary.

A. Pennsylvania's Electoral Scheme

Pennsylvania's election code distinguishes between “political parties and “political bodies.” 25 Pa. Stat.Ann. § 2831. An organization qualifies as a “political party if 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 in turn be categorized as either major or minor parties, depending on their statewide voter registration. Id. § 2872.2(a); Rogers v. Corbett, 468 F.3d 188, 190–91 (3d Cir.2006). Major parties are defined by exclusion as those that are not minor political parties under the election code, and minor parties are defined as those whose statewide registration is less than fifteen percent of the total statewide registration for all political parties. 25 Pa. Stat.Ann. § 2872.2(a). 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. “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 a minor party, let alone a major one. Id. § 2831(a).

One of the most basic goals of a political organization, and the one for which the Aspiring Parties are contending in this case, is to have its candidates listed on the general election ballot. Major parties get to place their candidates on the general election ballot through a publicly-funded primary process.4See id. § 2862. Minor parties and political bodies (which we will sometimes refer to together as “non-major parties) have to go through a signature-gathering campaign to have their nominees appear on the general election ballot, but minor parties are at least able to access benefits under the election code “with respect to special elections, voter registration forms, [and] substituted nominations,” id. § 2872.2. 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. It is the rules governing that process that are the focus of the Aspiring Parties' Complaint.

To appear on the general election ballot, minor parties and political bodies are required to file nomination papers with the Secretary of the Commonwealth. 5See id.§§ 2872.2 (“Nominations by minor political parties), 2911 (“Nominations by political bodies”); Rogers, 468 F.3d at 191. Successful nomination papers for a statewide office must include valid signatures equal to two percent of the vote total of the candidate with the highest number of votes for any state-wide office in the previous election. 25 Pa. Stat.Ann. § 2911(b).6 Afterbeing filed, the nomination papers are examined by the Secretary of the Commonwealth, who must reject the filing of any submission that “contains material errors or defects apparent on [its] face ... or on the face of the appended or accompanying affidavits; or ... contains material alterations made after signing without the consent of the signers; or ... does not contain a sufficient number of signatures as required by law.” Id. § 2936.

Even after being accepted by the Secretary, however, the papers can be subjected to further examination if a private party files an objection. 7 In particular, the election code provides in § 2937 that

[a]ll nomination petitions and papers received and filed ... shall be deemed to be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court specifically setting forth the objections thereto, and praying that the said petition or paper be set aside.

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.8Id. Of special importance to the present dispute is that, when 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 there being no “fraud, bad faith, or gross misconduct” on the part of the candidate whose papers were challenged.9Id.

Finally, a political organization may also lose its status as a political party. If it does not meet the two percent threshold, it descends again to the status of political body. See25 Pa. Stat.Ann. § 2831(a). Therefore, if a political party fielded no candidate in a general election or if its candidates received support from less than two percent of the highest vote-getter, it would qualify only as a political body in the following election. Id.

Sections 2911 and 2937 became law in 1937. Section 2911 was amended in 1971 to increase the percentage of signatures required, see People's Party v. Tucker, 347 F.Supp. 1, 2 & n. 2 (M.D.Pa.1972), and § 2937 was, in 2011, the subject of an important interpretive opinion by the Pennsylvania Supreme Court, In re Farnese, 17 A.3d at 359. The Aspiring Parties have extensive experience with these statutes, having collected signatures, defended nomination papers, and been placed on and struck from election ballots at various times in the past decade.

B. Recent Elections

In the 2002, 2004, and 2006 elections, the C.G.L. Parties were each “qualified minor parties ... because each party had a candidate on the preceding general election ballot who polled the requisite number of votes.” (Appellants' Opening Br. at 9.) In 2004, however, 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...

To continue reading

Request your trial
946 cases
  • Asah v. N.J. Dep't of Educ.
    • United States
    • U.S. District Court — District of New Jersey
    • 27 Julio 2018
    ...attack on the claim at issue, because that distinction determines how the pleading must be reviewed." Constitution Party of Pennsylvania v. Aichele , 757 F.3d 347, 357 (3d Cir. 2014) (quoting In re Schering Plough Corp. Intron/Temodar Consumer Class Action , 678 F.3d 235, 243 (3d Cir. 2012)......
  • Mazo v. Way
    • United States
    • U.S. District Court — District of New Jersey
    • 30 Julio 2021
    ...12(b)(1) motion can raise a facial attack or a factual attack, which determines the standard of review. Const. Party of Pennsylvania v. Aichele , 757 F.3d 347, 357 (3d Cir. 2014) (citations omitted); In re Horizon Healthcare Servs. Inc. Data Breach Litig. , 846 F.3d 625, 632 (3d Cir. 2017).......
  • Stathis v. Marty Indian Sch. Bd. Inc.
    • United States
    • U.S. District Court — District of South Dakota
    • 17 Septiembre 2021
    ...alleged and submitting an affidavit and exhibits to support its argument that it is immune from suit. See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) ("A factual attack ... is an argument that there is no subject matter jurisdiction because the facts of the case .......
  • Perry v. OCNAC #1 Fed. C.U., Civil No. 19-167 (NLH/KMW)
    • United States
    • U.S. District Court — District of New Jersey
    • 28 Octubre 2019
    ...12(b)(1) motions: one which presents a "facial challenge" and one which presents a "factual challenge." See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (citing In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012) ); Petruska v. Gannon Univ., 462 F.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT