The opinion of the court was delivered by: Chief Judge Kane
MEMORANDUM AND ORDER THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On August 29, 2008, Plaintiffs brought this action for declaratory and injunctive relief. (Doc. No. 1.) Plaintiffs are the Constitution Party of Pennsylvania; Chuck Baldwin, a candidate for President; Darrell R. Castle, a candidate for Vice President; and Wesley Thompson and James E. Panyard, members of the Constitution Party of Pennsylvania. Pedro Cortes is the Secretary of the Commonwealth ("Secretary"), charged by statute with the administration of the state election laws.
On September 9, 2008, Plaintiffs filed a motion for an expedited hearing on Plaintiffs' motion for a preliminary injunction. (Doc. No. 6.) A hearing was held on the merits of the motion on September 10, 2008, and thereafter Defendant was ordered to submit a supplemental affidavit. (Doc. No. 11.) At the hearing, the parties declined to offer testimony, relying instead on affidavits and representations to the Court that no material facts are in dispute that bear on Plaintiffs' legal claim for declaratory and injunctive relief.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Constitution Party of Pennsylvania is a minor political body within the meaning of the Pennsylvania Election Code. 25 P.S. § 2601 et seq. As such, the party and its candidates are subject to specialized procedures that govern whether and when they are permitted a place on the ballot. These procedures were previously challenged by Plaintiffs in separate litigation and the procedures were upheld as constitutional. See Rogers v. Corbett, 468 F.3d 188 (2006). The Pennsylvania Election Code provides that candidates from minor political parties or political bodies, such as Plaintiffs, earn their way on the ballot through the collection of signatures submitted to the Secretary in the form of "nomination papers." The Election Code provides that the last date for the submission of nomination papers is the "second Friday subsequent to the primary." 25 P.S. § 2913(c). The parties agree that in 2008, May 2 is the second Friday subsequent to the primary.
The parties agree that since 1984, the Secretary of the Commonwealth has deviated from the Election Code by extending the date for nomination papers for minor political parties and bodies to August 1. August 1 is the date dictated by consent decrees (Def.'s Exs. 2 & 3) in cases captioned Libertarian Party of Pennsylvania v. Davis, 84-0262 (M.D. Pa. 1984), and Hall v. Davis, 84-1057 (E.D. Pa. 1984). Both decrees provide that the Secretary of the Commonwealth will "accept the nomination papers of plaintiffs [the Libertarian Party of Pennsylvania et al.] filed on or before August 1 of this year and future election year, [sic] notwithstanding Section 2913(c) of the Election Code . . . terminat[ing] upon amendment of Section 2913(c) of the Election Code of the General Assembly." (Def.'s Ex. 2.)
The identity of all of the parties to the consent decree and details concerning the particulars of the cause of action are not part of the record here, but the parties to this litigation suggest that the litigation involved a constitutional challenge to the deadline contained in 25 P.S. § 2913(c). The parties agree that no legislative action has since occurred, and that, since 1984, the August 1 deadline has been the one enforced by the Secretary and included in the Department of State's calendar of election deadlines. (Def.'s Ex. 1.) The parties also agree that the August 1 deadline has been enforced not only with regard to the Libertarian Party, but as to all minor political parties and political bodies.
Consistent with the August 1 deadline, Plaintiffs Baldwin and Castle submitted their nomination papers containing 21,957 signatures to the Defendant on that date. The Defendant rejected the petitions (Pl.'s Ex. A), informing Plaintiffs that the number of signatures presented was inadequate to satisfy the 24,666 required.*fn1 Plaintiffs continued to circulate petitions.
On August 26, 2008, Plaintiffs Baldwin and Castle again submitted their nomination petitions, now with an additional 8000 signatures. Their applications were rejected as untimely. To date, the Secretary has not accepted Plaintiffs' nomination papers, and Plaintiffs' signatures have not been verified by the Defendant. Thus, Plaintiffs Baldwin's and Castle's names were not supplied by Secretary Cortes to the counties for inclusion on the November ballot.
Plaintiffs seek an injunction declaring the August 1 deadline invalid and an order directing the Secretary to certify Baldwin's and Castle's names for inclusion on the November ballot for President and Vice President of the United States. For the reasons that follow, Plaintiffs' request for injunctive relief must be denied.
It is well established that a grant of injunctive relief under Federal Rule of Civil Procedure 65(a) "is an extraordinary remedy, which should be granted only in limited circumstances." Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989) (citations omitted). The moving party bears the burden of establishing that the requested injunctive relief is warranted. Id. In determining whether to grant emergency injunctive relief, the Court must consider the following four factors: (1) the likelihood that the applicant will prevail on the merits of the substantive claim; (2) the extent to which the moving party will be irreparably harmed in the absence of injunctive relief; (3) the extent to which the non-moving party will suffer irreparable harm if the Court grants the requested injunctive relief; and (4) the public interest. AT&T v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994) (citations omitted). "A failure to show a likelihood of success or a failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary injunction." In re Arthur Treacher's Franchisee Litig., 689 F.2d 1137 (3d Cir. 1982).
Plaintiffs' challenge to the deadline for nomination petitions is framed as an Equal Protection and First Amendment challenge, and as a violation of Article II, Section 1 of the Constitution. Plaintiffs conceded at the hearing that "the only issue of real substance" is Plaintiffs' Article II, Section 1 challenge to the August 1 deadline. (Tr. at 3.) In Federal elections, Article II provides that:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of ...