Republican Party of Pa. v. Cortés

• Decision Date: 03 November 2016
• Docket Number: CIVIL ACTION NO. 16–05524
• Citation: 218 F.Supp.3d 396
• Parties: REPUBLICAN PARTY OF PENNSYLVANIA, et al., Plaintiffs, v. Pedro A. CORTÉS, in his capacity as Secretary of the Commonwealth of Pennsylvania, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

218 F.Supp.3d 396

REPUBLICAN PARTY OF PENNSYLVANIA, et al., Plaintiffs,

v.Pedro A. CORTÉS, in his capacity as Secretary of the Commonwealth of Pennsylvania, Defendant.

CIVIL ACTION NO. 16–05524

United States District Court, E.D. Pennsylvania.

Signed November 3, 2016

Scot Russel Withers, Lamb McErlane, PC, West Chester, PA, for Plaintiffs.

Kenneth L. Joel, Office of the Attorney General, Linda C. Barrett, Harrisburg, PA, Sue Ann Unger, Office of Attorney General, Philadelphia, PA, for Defendant.

MEMORANDUM

PAPPERT, District Judge

States have the power to regulate elections. The Pennsylvania Election Code, enacted in 1937, regulates the electoral process in the Commonwealth in numerous ways. This case focuses on one specific Election Code provision, Section 2687(b), which requires poll watchers to be qualified electors of the county in which they serve. In other words, voters appointed to serve as poll watchers can perform that function only within the county where they are registered to vote. The Republican Party of Pennsylvania and eight duly qualified registered electors residing in various counties within the Commonwealth (collectively "Plaintiffs") sued Secretary of the Commonwealth Pedro Cortés seeking to enjoin the enforcement of that geographic restriction.

Prior to 2004, Section 2687(b) required poll watchers to serve within a much narrower area—their election districts, or precincts. That year the Pennsylvania General Assembly amended the statute to allow poll watchers to work anywhere within their county, the current geographic boundary. Plaintiffs now want the Court to effectively amend the Election Code again and allow poll watchers to cross county lines and monitor voting anywhere in the Commonwealth. Indeed, there is a bill pending in the State House of Representatives which would do just that, though the bill has languished in that body since January of 2015 without making it to the House floor for a vote. Plaintiffs seek an immediate preliminary and then permanent injunction which would "last until such time as the Legislature enacts remedial legislation" that cures Section 2687(b)'s alleged constitutional defects. Specifically, Plaintiffs contend that the provision violates their Fourteenth Amendment due process and equal protection rights and their rights to free speech and association under the First Amendment.

Plaintiffs seek an extraordinary remedy. Because they have unreasonably delayed in doing so, and because they cannot satisfy any of the requirements necessary for the grant of injunctive relief, the Court denies the motion.

I.

The United States Constitution reserves to the states the power to regulate elections. It instructs that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." U.S. Const. art. I, § 4. The states have long exercised this authority, "enact[ing] comprehensive and sometimes complex election codes." Anderson v. Celebrezze , 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).

In 1937, the Pennsylvania General Assembly crafted just such a comprehensive statutory scheme: the Pennsylvania Election Code. Under Section 2687 of the Code, candidates may appoint two poll watchers to each election district in which they appear on the ballot. 25 P.S. § 2687(a). Political parties and political bodies¹ may also appoint up to three poll watchers per election district in which they have a candidate on the ballot. Id. Poll watchers are permitted inside polling places "from the time that the election officers meet prior to the opening of the polls...until the time that the counting of votes is complete and the district register and voting check list is locked and sealed." Id. § 2687(b). During voting, poll watchers may carry a list of voters, and can "challenge any person making application to vote and to require proof of his qualifications." Id. After voting is complete, poll watchers may remain in the polling place but outside the enclosed space where ballots are counted and voting machines are canvassed. Id.

Poll watchers are permitted to participate in these activities partly in order to help "guard the integrity of the vote." Tiryak v. Jordan , 472 F.Supp. 822, 824 (E.D. Pa. 1979) ; see also (Tr. of Prelim.

Inj. Hr'g. ("Hr'g Tr."), at 39:9–13). They also serve a decidedly partisan interest—assisting their party or candidate to keep track of who has voted to aid in "get out the vote" efforts.² Perhaps recognizing that the authority granted to poll watchers enables them to serve this more partisan function, the Election Code provides for their compensation by the candidates or political parties. See 25 P.S. § 2687(c).

The creation and role of poll watchers is of course only one small part of the Election Code's regulatory framework. The Code also governs county boards of elections, district election officers, election districts, polling places, elector qualifications, party organization, the nomination process, ballot formats and quantities, the use of voting machines and other electronic voting systems, the general conduct of primaries and elections, absentee voting, and the tabulation of election returns. See generally 25 P.S. Ch.14.

Election procedures and processes are managed by each of the Commonwealth's sixty-seven counties. Each county has a board of elections, which oversees the conduct of all elections within the county. 25 P.S. § 2641(a). The county board of elections selects, fixes and at times alters the polling locations of new election districts. Id. § 2726. Individual counties are also tasked with the preservation of all ballots cast in that county, id. § 2649, and have the authority to investigate fraud and report irregularities or any other issues to the district attorney, id. § 2642. Counties are also free to utilize different voting systems, and presently ten different systems are in place across the Commonwealth. (Def.'s Ex. 2, ECF No. 19); see also (Hr'g Tr., at 73:21–22). Any political party or political body entitled to have watchers at any registration, primary or general election can also appoint watchers to represent the party at any public session of the county board of elections. Id. § 2650(a). Like poll watchers, those watchers must be qualified electors of the relevant county. Id. Decentralized control is also seen at the election district, or precinct, level. Each district has an election board which is composed of a judge of election and majority and minority inspectors of elections, id. § 2671, and each member of that board must be a qualified elector of the election district in which they serve, id. § 2672.

The Election Code contains numerous provisions designed to maintain and uphold the integrity of the vote. The Code provides for the appointment of "overseers of election" who carry greater authority than poll watchers. Id. § 2685. Section 2685 directs the Pennsylvania Courts of Common Pleas to appoint two election overseers from different political parties upon the petition of five or more "duly registered electors of any election district." Id. Election overseers have the right to be present with the officers of an election "within the enclosed space during the entire time the primary or election is held." Id. Poll watchers have no such right—Section 2687(b) requires that poll watchers remain "outside the enclosed space" where ballots are counted or voting machines canvassed. Id. § 2687(b). Election overseers also have the authority "to challenge any person offering to vote and interrogate him and his witnesses under oath in regard to his right of suffrage." Id. § 2685. Poll watchers have no such authority—Section 2687(b) permits poll watchers to "challenge any person making application to vote and to require proof of his qualifications" but not to question a voter under oath. Seeid. § 2687. The Election Code also addresses situations in which overseers are impeded from discharging their duties: some or all of the votes polled in that election district may be rejected by a proper tribunal. Id. § 2686. So while poll watchers may help guard the integrity of the vote, they are not the Election Code's only, or even best, means of doing so.

II.

Federal Rule of Civil Procedure 65 authorizes courts to issue preliminary injunctions. Fed. R. Civ. P. 65. Injunctive relief is "an extraordinary remedy," which the Court may grant only "upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. C ouncil , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) ). Those seeking a preliminary injunction must establish that they are: (1) likely to succeed on the merits; (2) likely to suffer irreparable harm in the absence of the preliminary injunction; (3) "that the balance of equities tips in [their] favor"; and (4) that an injunction is in the public interest. Winter , 555 U.S. at 20, 129 S.Ct. 365 ; see also Ferring Pharms., Inc. v. Watson Pharms., Inc. , 765 F.3d 205, 210 (3d Cir. 2014). The movant bears the burden of proving these elements, Ferring Pharms. , 765 F.3d at 210 (citing Opticians Ass'n of Am. v. Indep. Opticians of Am. , 920 F.2d 187, 192 (3d Cir. 1990) ), and the "failure to establish any element renders a preliminary injunction inappropriate." Id. (quoting NutraSweet Co. v. Vit–Mar Enters., Inc. , 176 F.3d 151, 153 (3d Cir. 1999) ).

Although Plaintiffs need not prove their case with "airtight certainty," the moving party nevertheless "bears a heavy burden on a motion for a preliminary injunction." Punnett v. Carter , 621 F.2d 578, 588 (3d Cir. 1980). Moreover, since the "primary purpose of a preliminary injunction is maintenance of the status quo," Acierno v. New Castle Cty. , 40 F.3d 645, 647 (3d Cir. 1994), "when the...