The opinion of the court was delivered by: Stengel, J.
For the second time in recent years, the plaintiffs brought an action alleging Pennsylvania's ballot access scheme violates rights guaranteed by the United States Constitution by forcing them to assume the risk of incurring substantial financial burdens if they defend nomination petitions they are required by law to submit.*fn3
The plaintiffs specifically allege that 25 P.S. § 2911(b), the provision requiring the submission of nomination petitions, and 25 P.S. § 2937, the provision authorizing the imposition of costs against candidates who defend such petitions, are unconstitutional as applied to them. The plaintiffs further allege that Section 2937 is unconstitutional on its face. They seek prospective declaratory relief and prospective injunctive relief only. The defendants filed a motion to dismiss the complaint under Rule 12(b) of the Federal Rules of Civil Procedure. The intervenor-defendants filed a separate motion to dismiss and, in addition to their own arguments, incorporated the arguments set forth in the defendants' motion. After the plaintiffs responded, I held a hearing on the motions. For the following reasons, I will grant the motions to dismiss.
Under Pennsylvania law, a political body is qualified as a political party when one of its candidates obtains a two percent level of support in the preceding general election. Specifically, 25 P.S. § 2831(a) defines a political party as:
Any party or political body, one of whose candidates at the general election next preceding the primary polled in each of at least ten counties of the State not less than two percentum of the largest entire vote cast in each of said counties for any elected candidate, and polled a total vote in the State equal to at least two per centum of the largest entire vote cast in the State for any elected candidate, is hereby declared to be a political party within the State.
Pennsylvania has a two-track system for candidates of political parties to be placed on the general election ballot. The first track is for major political parties. Based on voter registrations, the Democratic Party and the Republican Party are the only major political parties in Pennsylvania at this time. The major political parties generally place their candidates on the November ballot through the publically-funded primary process. See 25 P.S. § 2862. Candidates who seek to appear on the Republican or Democratic primary election ballot must submit 2,000 valid signatures. See 25 P.S. § 2872.1. The winner of the primary election automatically appears on the general election ballot. See P.S. § 2882.
The second track for candidates to be placed on the November ballot is by filing nomination petitions with the Secretary of the Commonwealth. See 25 P.S. § 2872.2. All candidates who are not members of a major political party (e.g., minor political parties,*fn4 political bodies, and independents) must file nomination petitions to have their names placed on the general or municipal election ballot. Id. These candidates must obtain signatures on nomination papers equaling at least two percent of the largest entire vote cast for an elected candidate in the state at large at the last preceding election which included statewide candidates. See 25 P.S. § 2911(b).*fn5
By statute, the first day to circulate nomination papers is the tenth Wednesday prior to the primary. Nomination petitions must be filed with the Secretary on or before August 1st of each election year. See 25 P.S. § 2913(a). The Secretary must examine the petitions and reject them if they contain material errors apparent on their face, if they contain material alterations, or if they lack the number of signatures required. See 25 P.S. § 2936. Nomination petitions accepted by the Secretary of the Commonwealth are deemed valid unless a private party files a petition challenging them and asking that they be set aside. The private parties have seven days to file objections challenging the validity of the signatures collected. See 25 P.S. § 2937. The Commonwealth Court of Pennsylvania then reviews any objections and determines whether the name of the candidate should be placed on the ballot or stricken. Id. Any party aggrieved by the decision of Commonwealth Court may then file an appeal as of right to the Supreme Court of Pennsylvania. Title 25 of the Pennsylvania Statute, Section 2937 provides that "[i]n case any such petition is dismissed, the court shall make such Order to the payment of the costs of the proceedings, including witness fees, as it shall deem just." If the private parties lose, however, the candidate can receive costs from the challenger. See In re Farnese, 948 A.2d 215 (Pa. Commw. 2008) (assessing costs against private individuals who unsuccessfully challenge a candidate's petition).
From February to July 2012, the minor parties collected signatures on nomination papers to qualify their candidates for placement on the ballot for the November 6, 2012 General Election. To qualify for placement on that ballot, these minor parties were required under the Pennsylvania Election Code to submit nomination papers which contain at least 20,601 signatures. See 25 P.S. § 2911(b).
On August 1, 2012, the plaintiffs submitted the signatures that they had gathered seeking to nominate certain candidates. In reviewing these signatures, the intervening defendants allegedly discovered extensive irregularities and possible fraud. Accordingly, on August 8, 2012, they filed two separate challenges to the signatures with the Commonwealth Court, asking the court to set aside the nomination papers on the basis of pervasive fraud in the signature-collection process. One challenge involved the nomination papers of nominees of the Libertarian Party of PA, see In Re: Nomination Papers of Margaret K. Robertson, et al., 507 MD 2012 (Pa. Commw. 2012), and the second challenge involved the nomination papers of nominees of the Constitution Party of PA, see In Re: Nomination Papers of Virgil H. Goode, et al., 508 MD 2012 (Pa. Commw. 2012). No such challenge was brought against the nomination papers of nominees of the Green Party of PA. It is interesting to note that on October 10, 2012, the Commonwealth Court of Pennsylvania, finding that the Libertarian Party had presented 20,730 valid signatures, dismissed the petition to set aside the party's nomination papers, and ordered the Secretary of the Commonwealth to certify the candidacy of the candidates for that party. Robertson, et al., 507 MD 2012. After a stipulated petition to withdraw the nomination papers in the case challenging the nomination papers of the Constitution Party, the Commonwealth Court ordered the Secretary of the Commonwealth to strike the names of that party's nominees from the general election ballot. Virgil H. Goode, et al., 508 MD 2012. Thus, at this juncture, it is impossible that any of the plaintiffs will be assessed costs and fees, as the court "shall deem just," as a result of the recent challenges to their nominating papers.
The complaint alleges that the application of Section 2911(b) and Section 2937 has severely impacted the plaintiffs and continues to impose severe burdens on them. The plaintiffs and their nominees have allegedly been compelled under financial duress to withdraw nomination petitions submitted under Section 2911(b), despite their good faith belief the petitions included enough valid signatures, because they cannot afford to assume the risk of incurring costs pursuant to Section 2937. It further alleges that the challenged provisions have thus prevented the plaintiffs from participating freely in Pennsylvania's past elections.
For example, the complaint alleges that following the 2004 election, Ralph Nader and his running mate, two independent candidates, were ordered to pay $81,102.19 in costs to the parties who challenged their nomination petitions pursuant to Section 2937. See In re: Nomination Paper of Ralph Nader, 905 A.2d 450 (Pa. 2006). In the 2006 election, the threat of incurring costs pursuant to Section 2937 caused several minor party candidates either to withhold or withdraw the nomination petitions required by Section 2911(b). Only one minor party candidate for statewide office in 2006 was willing to submit and defend the nomination petitions, doing so based on his good faith belief that the 93,829 total signatures he submitted satisfied Section 2911(b)'s requirement of 67,070 valid signatures. After his nomination petitions were successfully challenged in Commonwealth Court pursuant to Section 2937, Green Party candidate for Senate Carl Romanelli and his legal counsel were assessed fees and costs of $80,407.56. Mr. Romanelli was removed from the ballot. In re: Rogers, 942 A.2d 915 (Pa. Commw. 2008); see also In re: Rogers, 914 A.2d 457, 463 (Pa. Commw. 2007) (finding that fees were warranted as Mr. Romanelli had been disingenuous with the court and failed to comply with the court's Order).
The complaint further alleges that Democratic candidates or their allies filed challenges against the Green Party of PA and its 2010 nominees, while Republican candidates or their allies filed challenges against the Libertarian Party of PA and its 2010 nominees. In some cases, the challengers allegedly made explicit threats to seek costs pursuant to Section 2937, unless the plaintiffs immediately withdrew their nomination petitions. For example, after challenging the Libertarian Party of PA's nomination petitions, an attorney representing three voters aided by and affiliated with the Pennsylvania Republican Party allegedly threatened to seek "$92,255 to $106,455" in fees and costs if the party and its nominees did not immediately withdraw their ...