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In Re: the Nomination Petitions and Papers of Carl Stevenson As A

March 26, 2012


Appeal from Order of Commonwealth Court dated August 19, 2010 at No. 643 MD 2010

The opinion of the court was delivered by: Mr. Chief Justice Castille


SUBMITTED: September 8, 2010

Remanded by per curiam order, October 4, 2010; limited jurisdiction retained


This Opinion addresses an Application for Relief in an Election Code matter, over which this Court retained limited jurisdiction following a remand on October 4, 2010. The issue involves the effect of the District Court's decision in Morrill v. Weaver, 224 F.Supp.2d 882 (E.D. Pa. 2002). The Morrill court held that Section 2911(d) of the Election Code, 25 P.S. § 2600 et seq., which the federal court construed as imposing a district residency requirement for affiants circulating nomination papers violates the First Amendment. The district court permanently enjoined the Commonwealth from enforcing the statutory provision, and the Commonwealth did not appeal that decision. The importance of the issue, particularly as it affects the Secretary of the Commonwealth ("Secretary") in policing elections in accordance with the federal district court's decision, is explained below. For the reasons that follow, we hold that the Commonwealth and the Secretary are bound by the district court decision in Morrill, and may not enforce Section 2911(d) as written.

This question of the constitutionality of Section 2911(d) and the effect of Morrill arise in connection with a challenge to the nomination paper*fn1 submitted by Carl Stevenson ("Stevenson") as an independent candidate for the office of State Representative in Pennsylvania's 134th Legislative District*fn2 in the 2010 general election. Michael W. Gibson and Robert W. Mader ("Objectors") filed a petition to set aside in the Commonwealth Court, raising both signature challenges and a global challenge to Stevenson's nomination paper. Objectors' global challenge alleged that signatures on three pages of the nomination paper were invalid because the circulator of those pages resided outside the 134th Legislative District, in supposed violation of Section 2911(d).*fn3 Stevenson countered, inter alia, that Objectors' global challenge failed because Section 2911(d) was unconstitutional under the First Amendment of the U.S. Constitution,*fn4 insofar as it imposed a district residency requirement upon circulators. In support of his First Amendment argument, Stevenson cited the federal district court's decision and permanent injunction in Morrill v. Weaver, 224 F.Supp.2d 882 (E.D. Pa. 2002).

On August 19, 2010, in a single judge memorandum opinion and order, the Commonwealth Court rejected Stevenson's First Amendment argument. The Commonwealth Court reasoned that "[t]he purpose of the residency requirement for affiants is to ensure that papers are circulated by persons with at least some interest and stake in their communities in order to express the true will of the people within that electoral district." In re Stevenson, 643 MD 2010, slip op. dated 8/19/2010, at 6. With respect to Morrill, the Commonwealth Court noted, correctly enough, that courts of our Commonwealth are not bound by decisions of federal courts inferior to the U.S. Supreme Court. The court thus stated that it was not bound by Morrill. The court further observed that its rejection of Morrill was consistent with previous decisions finding that Morrill is not binding. Id. at 7 (citing In re Payton, 945 A.2d 279 (Pa. CmwIth. Ct. 2008);*fn5 In re Nomination Paper of Rogers, 908 A.2d 942 (Pa. Cmwlth. Ct. 2006); In re Petition for Agenda Initiative, 821 A.2d 203 (Pa. Cmwlth. Ct. 2003)).

After finding that Section 2911(d)'s residency requirement was valid, the Commonwealth Court struck all signatures on the nomination paper circulated by the affiant, who was not a resident of the 134th district. The court set Stevenson's nomination paper aside, and ordered the Secretary to strike Stevenson's name from the general election ballot.*fn6

On direct review in this Court, Stevenson renewed the arguments he had made below, asserting, inter alia, that the application of a district residency requirement under Section 2911(d) unconstitutionally burdens his First Amendment right to associate for political purposes, the right to vote, and the right to express political preferences. He argued that, as the Morrill court had determined, Section 2911(d)'s residency requirement constitutes an unconstitutional restriction upon the rights of both candidates and petition circulators, and thus, the statute cannot be enforced.

Stevenson asserted that the district residency requirement burdens core political speech, and is thus subject to strict scrutiny. He claimed that the requirement imposes a severe burden on the First Amendment rights of candidates and their supporters as literally millions of Pennsylvania electors are deprived of their right to associate based upon residency. He acknowledged that there are thousands of potential circulators who are residents of the 134th Legislative District; but, he noted that the important determinative factor is not how many potential circulators there are, but rather how many people are precluded from being potential circulators.

Stevenson also noted that the Secretary did not attempt, in this case, to show that the residency requirement is narrowly tailored to meet a compelling governmental interest. Stevenson argued that even if the Commonwealth had tried to make such a showing, it would not have been able to meet its burden. In a bit of sideways reasoning, Stevenson posited that the Commonwealth's compliance with the injunction in Morrill, and the Commonwealth's decision not to appeal from that decision, effectively undermines any argument that the Commonwealth has a compelling interest in enforcing Section 2911(d). Stevenson claimed that years of compliance with the Morrill court's permanent injunction, without the election system grinding to a halt, establishes that there is no compelling interest in enforcing Section 2911(d). Stevenson also asserted that any interest the Commonwealth could posit in having local circulators is undercut, moreover, by the lack of a local residency requirement for circulators in statewide races. Thus, argues Stevenson, for dozens of statewide races, circulator affiants may be residents of any part of Pennsylvania, and they certainly cannot be presumed to know everyone in the Commonwealth.

Additionally, Stevenson asserts that even assuming that the government had articulated a compelling interest, the district residency requirement for circulators is still unconstitutional because it is not narrowly tailored. Stevenson observed that the Commonwealth in Morrill, and the Commonwealth Court below, posited that the district residency requirement ensures that a circulator has a personal stake in the district; the district residency requirement thus ensures that the election expresses the true will of the people. Stevenson asserts that this argument is hollow, as the true will of the people is adequately ensured by requiring that a nomination paper bear the signatures of hundreds of qualified, resident electors in order for the proposed candidate's name to be placed on the ballot. Stevenson notes that "[t]he residence of the witness to those signatures neither adds to nor subtracts from the support from the electorate, and therefore is not narrowly tailored to promote that interest." Stevenson's Brief at 14 n. 7.

In their brief to our Court, Objectors responded that we should avoid the constitutional issue and instead turn our decision on the individual line challenges to the nomination papers. They also argue that, to the extent we consider the merits of the First Amendment challenge, we are not bound by the Morrill decision as it issued by a federal court inferior to the U.S. Supreme Court.

The Secretary submitted an amicus curiae brief, informing us that he took no position in support of either Stevenson or Objectors on the merits. The brief explained that upon the advice of the Attorney General, no appeal was taken from the Morrill judgment. The brief further stated that the Commonwealth has been complying with the final judgment and permanent injunction entered in Morrill. The Secretary pointed out that, consistently with that injunction, the form nomination papers and instructions provided to prospective candidates do not require circulator affiants to state that they are qualified electors of the electoral district of the candidate.

The Secretary voiced concern that the Commonwealth Court's order directing the Secretary to strike Stevenson's name from the ballot put the Secretary in a position that was inconsistent with the Commonwealth's obligation to abide by the final judgment entered in Morrill. The Secretary asked for guidance from this Court in the administration of future elections.

On October 4, 2010, we issued our per curiam order vacating the order of the Commonwealth Court. We did not resolve the First Amendment issue. Rather, we remanded to the Commonwealth Court for the limited purpose of the lower court considering Objectors' non-constitutional challenges to individual signatures on the nomination papers. We also specifically "reserve[d] limited jurisdiction to issue a supplemental decision, or direct further briefing, if such proves advisable" regarding the First Amendment challenge. In re Stevenson, 12 A.3d 273, 276 (Pa. 2010).

On remand, the Commonwealth Court considered and sustained the individual signature challenges.*fn7 Accordingly, on October 8, 2010, the court ordered that the Secretary strike Stevenson's name from the ballot on that distinct basis. Stevenson did not appeal.

Rather, Stevenson filed an Application for Relief with this Court. The Application asks that we determine whether the district residency requirement in Section 2911(d) violates the First Amendment. Stevenson asserts that this case provides an opportunity to clear away the confusion that surrounds a significant provision in the Election Code. He urges that a definitive ruling would provide certainty to candidates and to the Secretary as to the requirements that Section 2911(d) imposes upon nomination paper circulators and affiants.

Preliminarily, Stevenson acknowledges that his First Amendment complaint has become moot in the context of this litigation. According to Stevenson, the issue was rendered moot when Objectors withdrew their global challenge to his Nomination Paper during the remand hearing. Notwithstanding that his First Amendment complaint is moot, Stevenson contends that we should entertain and decide the issue because it is subject to the mootness exception governing issues of great public importance, which are capable of repetition and likely to evade review. Stevenson asserts that he presents a crucially important question, lying at the intersection of constitutional rights and the orderly administration of Pennsylvania elections. He further contends that the issue clearly has the potential to recur. In addition, he notes that this Court has recognized that election-related issues are likely to evade review because of the abbreviated time-frame in which elections occur. Application for Relief at 8-9 (citing, inter alia, Nutter v. Dougherty, 938 A.2d 401, 405 n.8 (Pa. 2007); Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 515 A.2d 1331, 1333 (Pa. 1986)).

Neither the Secretary nor the Objectors has filed a response to Stevenson's Application for Relief.

As Stevenson recognizes, the threshold question is mootness. We agree that Stevenson's First Amendment issue is moot, but not for the reason he offers. The remand this Court ordered was limited to consideration of the Objectors' individual line challenges, while jurisdiction was reserved in this Court over the First Amendment issue. Because Objectors' global challenge was not before the Commonwealth Court on remand and the First Amendment issue remained in the jurisdiction of this Court, Objectors' purported withdrawal of their global challenge did not remove the First Amendment issue from this Court. Instead, the issue became moot because the Commonwealth Court's final judgment of October ...

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