Morrill v. Weaver, CIV.A. 02-CV-1497.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Citation: 224 F.Supp.2d 882
• Docket Number: No. CIV.A. 02-CV-1497.,CIV.A. 02-CV-1497.
• Parties: Michael MORRILL, Ben Price, Kurt Shotko, Guy Anthony and Eric Prindle, Plaintiffs, v. C. Michael WEAVER, in his official capacity as Secretary of State of Pennsylvania, and Richard Filling, in his official capacity as the Commissioner overseeing Pennsylvania's Bureau of Commission, Elections and Legislation, Defendants.
• Decision Date: 19 April 2002

224 F.Supp.2d 882 Michael MORRILL, Ben Price, Kurt Shotko, Guy Anthony and Eric Prindle, Plaintiffs,
v.
C. Michael WEAVER, in his official capacity as Secretary of State of Pennsylvania, and Richard Filling, in his official capacity as the Commissioner overseeing Pennsylvania's Bureau of Commission, Elections and Legislation, Defendants. No. CIV.A. 02-CV-1497. United States District Court, E.D. Pennsylvania. April 19, 2002.

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Jeffrey Istvan, Fine, Kaplan and Black, Philadelphia, PA, Nancy Northup, Glenn J. Moramarco, NYU School of Law, New York City, Elizabeth Daniel, New York City for Plaintiff.

John O.J. Shellenberger, III Official Capacity as Secretary of State of Pennsylvania, Randall J. Henzes, Office of Attorney General, Philadelphia, PA, for Defendant.

Mark B. Cohen, PA House of Representatives, Harrisburg, PA, for Mark B. Cohen.

OPINION AND ORDER

Van Antwerpen, District Judge.

This case concerns a constitutional challenge brought on March 25, 2002 by five Green Party candidates and activists ("Plaintiffs"), requesting a preliminary injunction restraining enforcement of a Commonwealth of Pennsylvania statute, 25 P.S. § 2911(d) (" § 2911(d)" or "the statute"), regarding nominations of candidates for political office. The statute requires that election petition "affiants" for a particular candidate be "qualified electors" of the district in which that candidate is running. Plaintiffs allege that if "qualified electors" must be registered voters living in particular electoral districts, then § 2911(d) violates their rights to free expression and association under the First and Fourteenth Amendments to the United States Constitution.¹

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The parties agreed in a telephonic conference on March 27, 2002 that they would rest on their pleadings so that the trial on the merits could be consolidated with the preliminary injunction hearing, inasmuch as there were no factual issues in dispute —only legal questions. Accordingly, the parties were notified by our March 28, 2002 order that under Fed.R.Civ.P. 65(a)(2), the trial on the merits would be advanced and joined with the hearing before us on April 10, 2002. Thus, the initial request for a preliminary injunction became a hearing on the merits of a permanent injunction. On April 18, 2002, we received an amicus curiae brief from Mark B. Cohen, Esq., a longtime Pennsylvania legislator and Chairman of the Democratic Caucus.

In consideration of all the evidence and arguments before us, we will now grant a permanent injunction against enforcement of certain provisions of 25 P.S. § 2911(d), which we find unconstitutionally restrain the freedom of political expression and association of the plaintiff candidates and activists, among others.

If the Commonwealth defines "qualified electors" who are permitted to verify election petition signatures such that the phrase includes only registered voters, then the statute is clearly unconstitutional under Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). Although lower state courts have construed the phrase "qualified electors" in other contexts, see, e.g., In re: Nomination Paper of Cooper, 102 Pa.Cmwlth. 133, 516 A.2d 1285 (1984) ("qualified electors" signing a petition must be registered voters), the Pennsylvania Supreme Court has not specifically limited the phrase to apply to registered voters. We believe the Pennsylvania Supreme Court would attempt to give 25 P.S. § 2911(d) a constitutional construction, and hold that the term "qualified electors" applies to all residents of a particular electoral district.

Nonetheless, even if we define the phrase "qualified electors" to include all residents of an electoral district, we believe that 25 P.S. § 2911(d) unduly infringes upon the Plaintiffs' and others' First Amendment free speech and free association rights, which strongly protect political activity. We find that the Commonwealth has articulated no compelling or sufficient reason for requiring election petition "affiants" to be residents of a specific district, as opposed to residents of the Commonwealth at-large.

Our decision to restrain enforcement of provisions of 25 P.S. § 2911(d) dictates that "affiants" to elections petitions need not be registered voters and may reside anywhere in the Commonwealth.² The Commonwealth must also pay Plaintiffs' fees and costs associated with this litigation to vindicate their constitutional rights.

I. BACKGROUND

The Plaintiffs are Green Party candidates and activists. Michael Morrill is the Green Party's 2002 gubernatorial candidate. Ben Price is the Green Party's 2002 candidate for the U.S. House of Representatives in the 19th congressional district. Kurt Shotko aspires to be the Green Party's U.S. congressional candidate in the 10th district. Guy Anthony is the Green Party's candidate for state representative in the 144th district. Eric Prindle is a Green Party activist and the Field Director for Morrill for Governor.

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Because the Green Party is considered a minor political party in Pennsylvania under 25 P.S. §§ 2831 and 2872.2,³ it does not hold primary elections. Instead, its candidates are only nominated by obtaining signatures on "nomination papers." 25 P.S. §§ 2872.2(a), 2911. The Commonwealth explains, "For statewide offices, the candidate must obtain [a number of signatures equal to] at least two percent of the largest number of votes cast for any elected candidate in the state at large at the last preceding [statewide] election." 25 P.S. § 2911(b), cited in Def. Memo., pp. 2-3. "For non-statewide offices, the candidate must obtain at least two percent of the largest number of votes cast for any officer (except a judge) elected in the election district where the nomination is sought in the last preceding election." Id. The parties agree that before August 1, 2002, Morrill needs to obtain more than 21,000 signatures to become a candidate for governor, while Price and Shotko need approximately 3,000 signatures and Anthony needs approximately 300 signatures. Def. Memo., p. 3; Pl. Prelim. Statement, pp. 2-4.

The challenged statute, 25 P.S. § 2911(d), a provision of the Pennsylvania Election Code concerning the nomination of candidates, reads as follows:

Nomination papers may be on one or more sheets and different sheets must be used for signers resident in different counties....Each sheet shall have appended thereto the affidavit of some person, not necessarily a signer, and not necessarily the same person on each sheet, setting forth — (1) that the affiant is a qualified elector of the State, or of the electoral district, as the case may be, referred to in the nomination paper; (2) his residence, giving city, borough or township with street and number, if any; (3) that the signers signed with full knowledge of the contents of the nomination paper; (4) that their respective residences are correctly stated therein; (5) that they all reside in the county named in the affidavit; (6) that each signed on the date set opposite his name; and (7) that, to the best of affiant's knowledge and belief, the signers are qualified electors of the State, or of the electoral district, as the case may be. (Emphasis supplied.)

The parties agreed at the hearing that under § 2911(d), Plaintiffs cannot affirm petition signatures for any candidates running in non-statewide elections outside the electoral districts where Plaintiffs respectively reside. Hearing Transcript, pp. 29-33. Though the Commonwealth emphasizes that technically, anyone may circulate petitions, Defendants acknowledge that under the statute as written, a "qualified elector" residing in the particular electoral district must be present to serve as an "affiant," verifying each signature collected by out-of-district circulators. Id.

Thus, under the statute, Morrill cannot affirm petition signatures for Green Party candidates for U.S. Congress, the state legislature or other down-ballot regional or local positions outside his own electoral district. After redistricting,⁴ Price and

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Shotko claim to reside outside the geographic boundaries of the congressional districts where they respectively seek office.⁵ If they reside outside their districts, then the parties agree that Price and Shotko could not affirm signatures on their own nominating petitions. Likewise, Anthony cannot use volunteers from outside his legislative district to collect signatures for his petition, unless such volunteers are accompanied by "qualified electors" from within the district, who may affirm the validity of any signatures collected. Prindle, the Green Party activist, may not create a team of Green Party members to traverse the state collecting nominating petition signatures for a slate of candidates, unless the team is accompanied in each district by a local "affiant" overseeing and certifying the veracity of each signature.⁶

On March 25, 2002, the Plaintiffs filed a Motion for a Preliminary Injunction asking that we declare portions of 25 P.S. § 2911(d) unconstitutional and that we enjoin enforcement of such provisions, granting appropriate relief and awarding Plaintiffs costs and fees.⁷ Plaintiffs stated without dispute in a telephonic conference on March 27, 2002 that this case was inappropriate for a three-judge panel, and that our court had jurisdiction to decide on the application for injunction. Telephone Conference Transcript, pp. 6-7. The parties also agreed that they would rest on their pleadings so that the trial on the merits could be consolidated with the preliminary injunction hearing, inasmuch as there were no factual issues in dispute — only legal questions. Id. at 15-17; Hearing Transcript, pp. 2-3. Accordingly, the parties were notified by our March 28, 2002 order that under Fed.R.Civ.P. 65(a)(2), the trial on the merits would be advanced and consolidated with the hearing before us on...