The Constitution Party Of v. Cortes, Civil Case No. 5:09-cv-01691.

• Decision Date: 16 July 2010
• Docket Number: Civil Case No. 5:09-cv-01691.
• Citation: 712 F.Supp.2d 387
• Parties: The CONSTITUTION PARTY OF, PENNSYLVANIA, et al., Plaintiffsv.Pedro A. CORTES, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

712 F.Supp.2d 387

The CONSTITUTION PARTY OF, PENNSYLVANIA, et al., Plaintiffsv.Pedro A. CORTES, et al., Defendants.

Civil Case No. 5:09-cv-01691.

United States District Court E.D. Pennsylvania.

March 31, 2010.

Opinion Denying Reconsideration July 16, 2010.

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Oliver B. Hall, Washington, DC, for Plaintiffs.

Howard G. Hopkirk, Office of Attorney General, Harrisburg, PA, A. Taylor Williams, Michael Daley, Administrative Office of PA Courts, Philadelphia, PA, for Defendants.

MEMORANDUM

STENGEL, District Judge.

This involves six plaintiffs in search of a case. The Constitution Party of Pennsylvania, The Green Party of Pennsylvania, and the Libertarian Party of Pennsylvania, and the chairs of the three parties, challenge the constitutionality of certain sections of the Pennsylvania Election Code. They believe the sections place unreasonable burdens on non-major party candidates. ¹ The defendants ² filed motions to dismiss the amended complaint.³

Because the plaintiffs present no case or controversy as required by Article III of the Constitution, I will dismiss their amended complaint.

I. Background

Plaintiffs allege the Pennsylvania Election Code imposes unavoidable and severe burdens on candidates for public office unless they are members of the Republican or Democratic party. According to the plaintiffs, this “freezes” the political status quo.

The Election Code allows major party candidates to access the general election ballot through publicly funded primary elections. 25 P.S. § 2862.⁴ Non-major party candidates,⁵ however, must submit nomination papers. 25 P.S. § 2872.2.⁶ Private parties are allowed to challenge the validity of these nomination papers. 25 P.S. § 2937.⁷ A court is authorized to tax litigation costs and attorney fees “it shall deem just” against the candidate defending the challenged nomination paper. ⁸See 25 P.S. § 2937; In re: Nomination Paper of Ralph Nader, 588 Pa. 450, 905 A.2d 450, 458 (2006) (the Supreme Court of Pennsylvania found a court could impose costs and attorney fees against a candidate).

At the crux of the plaintiffs' concern is a 2004 Pennsylvania Commonwealth Court case in which litigation costs of more than $80,000 were taxed against two independent candidates, Ralph Nader for President and Peter Miguel for Vice President of the United States. See Nader, 905 A.2d at 455, 459. Apparently, this was the first time the court authorized the taxation of costs against the defending candidates, rather than against individuals challenging the nomination papers. Then, in 2006, the Commonwealth Court taxed more than $80,000 in litigation costs and attorneys fees against a non-major party candidate for United States Senate, Carl Romanelli. In re Nomination Paper of Rogers, 942 A.2d 915, 933 (Pa.Commw.Ct.2008). The Supreme Court of Pennsylvania affirmed both taxations. See Nader, 905 A.2d at 459; In re Rogers, 594 Pa. 20, 934 A.2d 696, 696 (2007).⁹

Plaintiffs allege other non-major party candidates, specifically Hagan Smith, Marakay Rogers, and Ken V. Krawchuk, either refused to submit or withdrew their nomination papers because of the threat they would be taxed with costs and fees. They ran as write-in candidates. Plaintiffs contend the candidates' chances for success were impaired when, in 2006, officials in nine Pennsylvania counties did not compute and certify the write-in votes and, in 2008, officials in seven counties did not compute and certify write-in votes.

In affirming the assessment of costs in Nader, the Pennsylvania Supreme Court found the provision allowing the assessment of costs did “not impinge upon any constitutional rights in a way that would warrant constitutional scrutiny.” ¹⁰Nader, 905 A.2d at 459. The Nader court stated, “[e]ven if the statute did burden ballot access, which it did not, the burden would be reasonable and rationally related to the interest of the Commonwealth in ensuring honest and fair elections.” Id. Both the Nader and Rogers courts noted “limiting the choice of candidates to those who have complied with state election law requirements is the prototypical example of a regulation that, while it affects the right to vote, is eminently reasonable.” Rogers, 942 A.2d at 929 (quoting Nader, 905 A.2d at 460); Nader, 905 A.2d at 459 (quoting Burdick v. Takushi, 504 U.S. 428, 440 n. 10, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)).¹¹

Plaintiffs' claim the Nader and Rogers decisions “chilled” the rights of future candidates who might attempt to gain access to the ballot. To them, the assessed costs are unconstitutional because they impose a monetary barrier to ballot access and because the statute does not provide notice of when costs will be assessed. This, they contend, is in violation of the Due Process clause.¹²

The three counts of the complaint attempt to state bases for constitutional challenges and to prescribe methods of relief. Count I of Plaintiffs' amended complaint alleges § 2872.2 “independently and in conjunction with other provisions of the Pennsylvania Election Code, [is] unconstitutional as applied to Plaintiffs, because it impermissibly burdens and chills Plaintiffs exercise of freedoms guaranteed to them by the First Amendment, Fourteenth Amendment, Qualifications Clauses and elsewhere in the United States Constitution, and because it subjects them to such burdens without notice or limitation, in violation of their right to due process of law guaranteed by the Fourteenth Amendment.” Count II alleges § 2937 “independently and in conjunction with other provisions of the Pennsylvania Election Code, [is] unconstitutional as applied to Plaintiffs, because it impermissibly burdens and chills Plaintiffs exercise of freedoms guaranteed to them by the First Amendment, Fourteenth Amendment, Qualifications Clauses and elsewhere in the United States Constitution, and because it subjects them to such burdens without notice or limitation, in violation of their right to due process of law guaranteed by the Fourteenth Amendment.” Amended Complaint at ¶ 50. Count III of Plaintiffs' amended complaint requests an injunction providing the Executive Defendants “take any and all measures necessary to ensure that votes validly cast pursuant to Section 2936(a) are accurately and completely computed and certified for each candidate, as required by Section 3155.” Amended Complaint at ¶ 64.

II. Motion to Dismiss Standard

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To determine whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir.1984).

III. Article III Limits the Power of the Federal Courts to Adjudicate Only in Cases or Controversies

“Article III of the Constitution limits the federal judicial power to ‘Cases' or ‘Controversies.’ ” Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 193 (3d Cir.2004) (quoting United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996)). “Courts enforce the case-or-controversy requirement through the several justiciability doctrines,” including “standing, ripeness, mootness, the political-question doctrine, and the prohibition on advisory opinions.” Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137 (3d Cir.2009) (citations omitted). The standing and ripeness doctrines are related, as “[e]ach is a component of the Constitution's limitation of the judicial power to real cases and controversies.” Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir.1994). Ripeness determines when a proper party may bring an action and standing determines who may bring the action. Id. (quoting Smith v. Wis. Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1141 (7th Cir.1994)); see also, Smith, 23 F.3d at 1141 (noting “[i]f no injury has occurred, the plaintiff can be told either that she cannot sue, or that she cannot sue yet”).

Standing ensures “plaintiffs have a ‘personal stake’ or ‘interest’ in the outcome of the proceedings, ‘sufficient to warrant ... [their] invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on ... [their] behalf.’ ” Khodara Envtl., Inc., 376 F.3d at 193 (quoting Joint Stock Soc'y v. UDV N. Am., Inc., 266 F.3d 164, 175 (3d Cir.2001)) (alterations in original). In contrast, “[t]he ripeness doctrine serves to ‘determine whether a party has brought an action prematurely and counsels abstention until such time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.’ ” Khodara Envtl., Inc., 376 F.3d at 196 (quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir.2003)).

A court is required to raise issues of standing and ripeness if not raised by the parties. Addiction Specialists Inc. v. Twp. of Hampton, 411 F.3d 399, 405 (3d Cir.2005) (quoting Steele v. Blackman, 236 F.3d 130, 134 n. 4 (3d Cir.2001) (court required to raise the issue of standing)); County Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 163-64 (3d Cir.2006) (quoting Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 (3d Cir.1988) (court required to raise the issue of ripeness)).¹³ In addition, the plaintiff must allege facts invoking the court's jurisdiction. Presbytery of New Jersey, 40 F.3d at 1462 (citing Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991)).

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