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April 19, 2002


The opinion of the court was delivered by: 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.*fn1

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. Commw. 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.*fn2 The Commonwealth must also pay Plaintiffs' fees and costs associated with this litigation to vindicate their constitutional rights.


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.

Because the Green Party is considered a minor political party in Pennsylvania under 25 P.S. §§ 2831 and 2872.2,*fn3 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.


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,*fn4 Price and Shotko claim to reside outside the geographic boundaries of the congressional districts where they respectively seek office.*fn5 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.*fn6

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.*fn7 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 April 10, 2002. Defendants filed their response on April 8, 2002 and we heard oral argument from Plaintiffs and the Attorney General's representatives on April 10, 2002. On that date, we also granted Mark B. Cohen, Esquire's motion to file an amicus brief. We received the amicus brief on April 18, 2002.


Plaintiffs raise constitutional questions as to the validity of a Pennsylvania statute. Generally, constitutional questions fall within our original jurisdiction under 28 U.S.C. § 1331. Under 28 U.S.C. § 2281, a preliminary or permanent injunction restraining the enforcement, operation or execution of a State statute on grounds of unconstitutionality could not be granted unless the application had been heard and determined by a three-judge court. See decisions applying § 2281, e.g., Hicks v. Pleasure House, Inc., 404 U.S. 1, 92 S.Ct. 5, 30 L.Ed.2d 1 (1971); Idlewild Bon Voyage Liquor Corporation v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Stratton v. St. Louis Southwestern Ry. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135 (1930). Section 2281 was repealed by Congress in 1976 in P.L. 94-381 (S 537), legislation designed to "improve judicial machinery by amending the requirement for a three-judge court in certain cases" such that fewer cases required such panels. P.L. 94-381 Notes. Congress considered "unwieldy" the requirement of a three-judge court in all cases concerning the constitutionality of state statutes. Merrill v. Town of Addison, 763 F.2d 80, 82 (2nd Cir. 1985), citing S.Rep. No. 204, 94th Cong.2d Sess. 13, reprinted in, 1976 U.S. Code Cong. & Ad. News, 1988, 2001. Congress' action negated portions of Hicks, Idlewild, Stratton and other decisions invoking § 2281.

Under P.L. 94-381, 28 U.S.C. § 2284 was amended such that today, a three-judge court is only required upon hearing a constitutional challenge to "the apportionment of congressional districts or the apportionment of any statewide legislative body" or where otherwise required by an Act of Congress. Single district judges again have jurisdiction over suits to enjoin state statutes on constitutional grounds. LaRouche v. Fowler, 152 F.3d 974, 981 FN3 (D.C. Cir. 1998). Thus, we consider a constitutional challenge to § 2911(d) without a three-judge panel, applying P.L. 94-381.*fn8


Under Article III of the Constitution, a federal court may exercise jurisdiction only where there is an actual case or controversy to be decided. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). We must assess whether the situation before us is one "of sufficient immediacy and reality" to warrant the issuance of declaratory judgment and an injunction. Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).

At the hearing on April 10, 2002, the Commonwealth repeatedly asserted that Plaintiffs' claims remain unripe for our consideration, inasmuch as the Pennsylvania Secretary of State has not yet excluded any candidates from the 2002 ballot for failure to obtain adequately-affirmed signatures. See, e.g., Hearing Transcript, p. 35. The Commonwealth argued: "These individuals could go about their business and . . . collect the required number of signatures from anybody in the United States or the world. . . . The Secretary of State may miss it. I'm not saying he should or he shouldn't. Someone may come in and object [to signatures] like they did in" cases from other Circuits, and the State could invalidate petition signatures based on such objections. Hearing Transcript, pp. 16, 22. At this point, the case would presumably ripen, in the Commonwealth's view. Id. The Commonwealth concluded that thus far there is no "injury to [the candidates'] ability to run for office." Id. at 35.

The Commonwealth seems to invoke the principle that plaintiffs challenging the validity of a state statute may bring suit against the officials charged with the statute's enforcement "only if the official[s] ha[ve] either enforced, or threatened to enforce, the statute against the plaintiffs." Rode v. Dellarciprete, 845 F.2d 1195, 1209 FN 9 (3d Cir. 1988).

Plaintiffs' counsel responded at the April 10, 2002 hearing as follows:

[The Commonwealth is] suggesting . . . that we should . . . instruct our circulators to violate the oath they take and maybe they'll get away with it. There is a line at the bottom of those petitions that requires circulators to state. . . . that they are qualified electors for the district or state — whatever it may be — for the candidate named there and we cannot in good conscience ask people, who do not reside in a district to circulate outside and hope that someone won't challenge them or prosecute them. . . . [I]t's possible they might get away with it, but we're here to find out what they can do legally.
And as the affidavits make clear, people have declined to be circulators now that it is clear . . . that they cannot engage in it consistent with what the law requires. Hearing Transcript, pp. 35-36.

The Plaintiffs' argument recalls the rule of Turner v. Fouche, 396 U.S. 346, 362 FN 23, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), that a State "can hardly urge that her county officials may be depended on to ignore a provision of state law." Plaintiffs need not "wait for the axe to fall" on them. Berger v. Heckler, 771 F.2d 1556, 1563 (2nd Cir. 1985). Moreover, they allege they are already altering their activity — refraining from particular political speech and organization — to conform to the allegedly unconstitutional statutory scheme. See Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Zielasko v. State of Ohio, 873 F.2d 957, 958 (6th Cir. 1989).

Thus, weighing the parties' arguments, we must determine if there exists an imminent likelihood of constitutional violation based on the Commonwealth's enforcement of § 2911(d) and/or a shift in Plaintiffs' activity in anticipation of such violation, or if the alleged danger is as the Commonwealth describes it: merely speculative.

The Commonwealth is uncertain whether or not it would enforce the requirement in § 2911(d) that nominating petition affiants be "qualified electors" such that the term would exclude residents not registered to vote. Hearing Transcript, pp. 14-15. If construing "qualified electors" to include registered voters were the only basis for the Plaintiffs' suit, then we might find that the Plaintiffs' suit was unripe, because there remains a serious possibility that the Commonwealth would not attempt to impose such a construction upon § 2911(d). In other words, a case or controversy might never arise solely based on candidates' petitions affirmed by unregistered individuals within particular electoral districts.

On the other hand, the Commonwealth acknowledges that under § 2911(d), it would seek to exclude petition signatures affirmed by individuals residing outside the electoral districts to which such signatures pertain. See, e.g., Hearing Transcript, pp. 32-33. The Commonwealth raises the possibility that the Secretary of State might overlook enforcement of § 2911(d) in a particular case if a challenge to the signatures were never raised by an opposing candidate. Id. at 16-17. However, the Commonwealth does not dispute the fact that it would consider such signatures legally invalid and would reject them upon receiving a challenge. Id. at 19-20.

Plaintiffs adequately establish in their declarations, which are factually undisputed by the Commonwealth, that Plaintiffs are now straying from their preferred course of conduct to conform with § 2911(d). Naturally, the Green Party does not wish to risk having its candidates disqualified at a later stage in the electoral process because of inadequate signature collection in the early phases of the campaign. In compliance with § 2911(d), Plaintiffs testify that they are currently: refraining from their plans to travel the State obtaining signatures on Green Party candidates' petitions; refraining from plans to circulate authorized slate petitions, in which individuals sign supporting the candidacy of the gubernatorial candidate, Morrill, along with local Green Party candidates; devoting an undue amount of campaign time to signature gathering while turning down offers of assistance in signature gathering from family members and close supporters living outside particular electoral districts; and working to collect an excessive number of signatures, because of their palpable fear of having many signatures invalidated. See Pl. Motion, Ex. A-E.

We believe these facts suggest a conclusion like the Supreme Court's in Society of the Sisters, in which the Court restrained Oregon's Compulsory Education Act, which would have required all Oregon children between certain ages to attend public schools. Society of the Sisters, 268 U.S. at 529-532. Though the effective date of the statute had not yet arrived, the Court granted the injunction requested by the organization administering a private school because the Act had "already caused the withdrawal from its schools of children who would otherwise continue, and [the private school's] income has steadily declined. The appellants, public officers, [had] proclaimed their purpose strictly to enforce the statute." Id. at 532. The Court concluded, "Prevention of impending injury by unlawful action is a well-recognized function of courts of equity." Id. at 536.*fn9

Likewise, in the case at bar, as we have noted, the Plaintiffs are already losing valuable campaign time and declining offers from would-be volunteers because of § 2911(d), and the Commonwealth maintains that it would strike signatures affirmed by individuals residing outside particular electoral districts where such signatures are challenged.

Price and Shotko have been particularly burdened, because they have not been able to collect signatures for their own petitions, since their residences are outside the recently-redrawn congressional districts in which they are running for office. Pl. Motion, Ex. B, C. Though the redistricting plan was recently invalidated (see Vieth, 2002 WL 530870) and it is possible that these particular concerns of Price and Shotko may be mooted, the scenario is "capable of repetition, yet evading review" — a recognized exception to the mootness doctrine. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310. That is, we can easily envision future scenarios — possibly even in this election — in which these individuals could not affirm signatures on their own nominating petitions because of § 2911(d)'s in-district residency requirement for "qualified electors."*fn10 The need for resolution of § 2911(d)'s constitutionality reflects a continuing controversy in the extent of individual liberties.

Furthermore, the Commonwealth does not dispute Plaintiffs' contention that many have had their candidacies nullified in past elections for failure to obtain an adequate number of "valid" signatures, including Plaintiff Shotko in multiple previous attempts to be listed on the ballot. With respect to such past, failed candidacies, though the individuals cannot lay claims to offices for which they were never able to run, the Commonwealth's alleged unconstitutional enforcement of § 2911(d) again meets the "capable of repetition, yet evading review" standard. See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), citing Southern Pacific Terminal Co., 219 U.S. at 515 ("[W]hile the 1968 election is over, . . . as long as Illinois maintains her present system as she has done since 1935 . . . [t]he problem is . . . `capable of repetition, yet evading review.'"). Our abiding interest in the constitutionality of the elections process (Meyer v. Grant, 486 U.S. 414, 425, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988)) cannot be negated by adjudging every case unripe before the election or moot after the election.

Moreover, the Commonwealth's Nomination Paper (a document marked, "DSBE 210MPP Department of State (Rev. 1/02)") unambiguously requires that the affiant swear or affirm in the presence of a notary or person empowered to take legally-binding acknowledgments that the affiant to the petition signatures is a "qualified elector of the electoral districts referred to in this nomination paper," (emphasis supplied) stating an appropriate address. If Plaintiffs take oaths to being "qualified electors" outside particular electoral districts in which they reside, they will subject themselves to the possibility of prosecution for perjury. 25 P.S. § 3502.*fn11 Indeed, if they were convicted of perjury, a type of crimen falsi, they would be unfit to hold public office in Pennsylvania under the laws of the Commonwealth and could be subject to fines and imprisonment. See, e.g., id.; Commonwealth ex rel. Baldwin v. Richard, 561 Pa. 489, 751 A.2d 647, 652-653 (2000); Bolus v. Fisher, 785 A.2d 174, 178 (Pa.Cmwlth. 2001); In re Cicchetti, 697 A.2d 297, 316 (Pa.Ct.Jud.Disc. 1997).

In a similar situation, the Sixth Circuit in Zielasko found the plaintiffs asserted a justiciable case or controversy regarding a provision of an Ohio statute requiring that candidates for office be younger than 70 — though the candidate, Zielasko, had not yet even formally ...

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