United States District Court, E.D. Pennsylvania
For GREEN PARTY OF PENNSYLVANIA, LIBERTARIAN PARTY OF PENNSYLVANIA, WILLIAM REDPATH, KENNETH V. KRAWCHUK, PAUL GLOVER, THOMAS LEE PRIGG, JOHN J. SWEENEY, STEVE SCHEETZ, Plaintiffs: PAUL A. ROSSI, LEAD ATTORNEY, MOUNTVILLE, PA.
For CAROL AICHELE, SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, JONATHAN MARKS, COMMISSIONER, BUREAU OF ELECTIONS OF THE COMMONWEALTH OF PENNSYLVANIA, Defendants: KEVIN R. BRADFORD, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, PHILADELPHIA, PA.
Stewart Dalzell, J.
The question before us is whether the Commonwealth's requirement that circulators of nomination papers for a candidate who seeks to appear on the general election ballot in Pennsylvania use different nomination papers for each county unconstitutionally burdens plaintiffs' First Amendment speech rights. For the reasons detailed below, we conclude this challenged statutory provision -- the sole issue remaining among plaintiffs' twenty-nine constitutional and statutory challenges to the Pennsylvania Election Code -- is a reasonable, nondiscriminatory election-related regulation that permissibly burdens plaintiffs' speech and does not, therefore, unduly infringe upon their constitutional rights. Accordingly, we will deny plaintiffs' motion for summary judgment as to the requirement of using separate nomination papers per county and enter judgment in favor the defendants as to this final count.
Also, we had ordered the parties to address whether the five claims for relief we denied as moot on March 2, 2015 continue to present a case or controversy in light of the Commonwealth's representations that its revised nomination forms addressed plaintiffs' expressed concerns. Because the Commonwealth has altered the nomination paper format and the plaintiffs have failed to articulate any reasons those revised nomination forms continue to impinge on their constitutional rights, we will affirm our March 2, 2015 decision as to its mootness holding.
1. Factual and Procedural Background
On June 9, 2014 the Green Party of Pennsylvania, the Libertarian Party of Pennsylvania, and six individuals affiliated with those political entities (collectively, the " Green Party plaintiffs" ) filed suit to challenge the Commonwealth's enforcement of three provisions of the Pennsylvania Election Code. On June 24, 2014 the case was reassigned to us from the docket of Judge Thomas N. O'Neill, Jr. On July 14, 2014, the Green Party plaintiffs filed a 182-page amended complaint listing twenty-nine counts for relief alleging that the statutory provisions of the Election Code at issue was facially unconstitutional, unconstitutional as-applied, and violated the National Voter Registration Act, the Elections and Supremacy Clauses of the U.S. Constitution, and certain Pennsylvania election laws.
The plaintiffs, aspiring political parties and their supporters, sought declaratory, injunctive and mandamus relief from the Commonwealth's requirements governing nomination papers that must be submitted under its rules for members of minor parties (such as the Libertarian Party of Pennsylvania) and political bodies (including the Green Party of Pennsylvania) who seek to appear on the general election ballot. Amended Complaint (" AC" ) at 2. Under the Election Code, major party candidates file " nomination petitions" to appear on the primary election ballot, in contrast with the two major political parties whose candidates' names are published on general election ballots. But minor parties and political bodies use " circulators" to gather signatures on " nomination papers," to be filed with the Pennsylvania Department of State, so that their candidates may appear on the general election ballot. See Constitution Party of Pennsylvania, et al. v. Carol Aichele, et al., 757 F.3d 347, 351 (3d Cir. 2014).
The Commonwealth's requirements regarding nomination papers are set forth in 25 Pa. Stat. Ann. § 2911 (West 2014). On July 29, 2014, three days before the August 1, 2014 nomination paper filing deadline, the Green Party plaintiffs filed an emergency motion for a temporary restraining order and preliminary injunction that sought to enjoin the defendants from enforcing their interpretation of 25 Pa. Stat. Ann. § § 2911 (a), (c) and (d) (West 2014).
The contested portions of Section 2911 provide that:
(a). . .[N]omination of candidates for any public office may also be made by nomination papers signed by qualified electors of the State, or of the electoral district for which the nomination is made, and filed in the manner herein provided. . . .
(c) Each person signing a nomination paper shall declare therein that he is a qualified elector of the State or district, as the case may be, and shall add to his signature his legibly printed name and residence, giving city, borough or township, with street and number, if any, and shall also add the date of signing, expressed in words or numbers: Provided, however, That if said political district named in the papers lies wholly within any city, borough or township, or is coextensive with same, it shall not be necessary for any signer of a paper to state therein the city, borough or township of his residence. No elector shall sign more than one nomination paper for each office to be filled, unless there are two or more persons to be elected to the same office, in which case he may sign nomination papers for as many candidates for such office as, and no more than, he could vote for at the succeeding election. More than one candidate may be nominated by one nomination paper and candidates for more than one office may be nominated by one nomination paper: Provided, That each political body nominating does not nominate more candidates than there are offices to be voted for at the ensuing election: And provided, That all the signers on each nomination paper are qualified to vote for all the candidates nominated therein.
(d) Nomination papers may be on one or more sheets and different sheets must be used for signers resident in different counties . If more than one sheet is used, they shall be bound together when offered for filing if they are intended to constitute one nomination paper, and each sheet shall be numbered consecutively, beginning with number one (1) at the foot of each page. 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.
25 Pa. Stat. Ann. § § 2911 (a), (c) and (d) (West 2014) (contested provisions underlined).
Specifically, the plaintiffs sought to enjoin the defendants from enforcing (1) their interpretation that Subsection (a) requires that a " qualified elector" be a registered voter before they could sign nomination papers; (2) Subsection (c)'s requirement that signers of nomination papers record the year of signing; (3) Subsection (d)'s in-state residency requirement for witnesses executing an " Affidavit of Qualified Elector" -- that plaintiffs refer to as the " In-State Witness Requirement" -- (4) the requirement on the nomination paper form that it be executed " in the presence of a person empowered to take acknowledgments (such as a notary public)" ; and (5) Subsection (d)'s requirement that different sheets be used by signers resident in different counties. Emer. Mot. at 1, 2.
On July 31, 2014, we held a hearing on the emergency motion. Based on the parties' stipulations and the testimony in court that day, we from the bench granted in part and denied in part the plaintiffs' motion for an emergency temporary restraining order or preliminary injunction. We enjoined the defendants from enforcing the In-State Witness requirement of 25 Pa. Stat. Ann. § 2911(d). But we denied the Green Party plaintiffs' motion as to Subsection (d)'s nomination requirement that the circulator's Affidavit should be executed in the presence of a person empowered to take acknowledgments, such as a notary, and that different sheets be used for signers who reside in different counties. We also denied plaintiffs' motion as to defendants' interpretation of Subsection (a)'s requirement that qualified electors signing nomination papers be registered to vote on or before the day they sign the nomination papers. Finally, as the Commonwealth's Commissioner of Elections represented to us that the Commonwealth no longer enforces Subsection (c)'s requirement that each person signing a nomination paper record the year of signature, we denied that aspect of the emergency motion as moot and memorialized our decisions in our July 31, 2014 Order.
On August 4, 2014 we convened a Rule 16 conference in Chambers and set a schedule for dispositive motions. On October 31, 2014, the defendants filed a motion for summary judgment and the same day the Green Party plaintiffs filed a motion for partial summary judgment, which they sought to amend on November 19, 2014.
On March 2, 2015, we granted plaintiffs' motion in part. We granted them leave to amend their motion for summary judgment and add an equal-protection claim. We also granted their motion for relief from defendants' enforcement of the in-state residency requirement for affiants executing an " Affidavit of Qualified Elector" under 25 Pa. Stat. Ann. § 2911(d), declaring that requirement to be an unconstitutional burden under the First and Fourteenth Amendments of the United States Constitution -- as applied to plaintiffs only -- and we enjoined the defendants from enforcing it. We also granted the plaintiffs' motion for relief from defendants' requirement that the " Affidavit of Qualified Elector," required pursuant to 25 Pa. Stat. Ann. § 2911(d), be executed in the presence of a person empowered to take acknowledgments, such as a notary, and declared that requirement to be an unconstitutional burden -- as applied to the plaintiffs only -- under the First and Fourteenth Amendments of the United States Constitution. We enjoined defendants' enforcement of that requirement as well. And we declared 25 P.S. § 2911(c)'s prohibition on a qualified elector signing more than one nomination paper for each office to be filled to be an unconstitutional burden on the rights of plaintiffs to the equal protection of the law under the Fourteenth Amendment and enjoined defendants from enforcing it against the plaintiffs.
Based on the Commonwealth's representation that it has altered the nomination paper forms, we denied as moot plaintiffs' motion for relief as to five counts -- facial and as-applied challenges to the Commonwealth's requirement that signers record the year of their signatures; facial and as-applied challenges to the Secretary of the Commonwealth's warning printed on nomination paper forms stating they are open to challenge if the circulator does not reside in the district specified on the paper; and an as-applied challenge to the space allocated on the forms for " presidential electors" in nonpresidential election years.
We granted defendants' motion as to all other counts save the one remaining before us now -- the requirement under 25 Pa. Stat. Ann. § 2911(d) that circulators use different nomination sheets for signers resident in different counties thereby obliging them to carry nomination papers for the sixty-seven counties in Pennsylvania when collecting signatures.
II. The Requirement For Different Sheets For Each County
In their motion for summary judgment, the Green Party plaintiffs contended that Section 2911(d)'s requirement that different nominating sheets be used for signers from different counties is a " relic from the time when nomination paper signatures were sent to each individual county by Commonwealth Court" so each county could check challenged signatures against their paper records. Pl. Am. MSJ at 36-37. As the parties agreed in their stipulated facts, private parties (not the Commonwealth) challenge nomination petitions and papers, which are presumed by statute to be valid if timely filed with and accepted by the Secretary. See Green Party of Pennsylvania v. Aichele, 89 F.Supp.3d 723, 2015 WL 871150 at *6 (E.D.Pa. Mar. 2, 2015). Such objectors bear the burden of showing that a signature on a nomination paper is not genuine. Id. The Commonwealth Court hearing such an objection requires objectors to compare the information on the nomination paper with the information recorded in the Statewide Uniform Registry of Electors (" SURE" ) system. Id.
Enforcement of the county-by-county nomination paper requirement severely impairs plaintiffs' speech, they claimed, because circulators must either juggle nomination papers for sixty-seven separate counties or forego signatures. Pl. Am. MSJ at 39; see also Ex. B (Decl. of Green Party member Carl Romanelli) (attesting to the impossibility of carrying or efficiently managing nomination papers for more than a few counties). See also Ex. A (Decl. of John J. Sweeney) at ¶ ¶ 27-29. The plaintiffs maintained that this regulation fails to advance any governmental interest because county election officials now upload and maintain voter registration information on the SURE system. Id. at 37, 40.
In their motion for summary judgment, the defendants questioned whether this regulation poses any burden because " the reality is that a circulator gathering signatures . . . is most likely to encounter residents of that county or the surrounding counties." Def. MSJ at 15. Lifting this requirement, they contended, would create confusion for the Secretary who is tasked with processing the nomination papers by the August 1 deadline. Under the present system, they contended, the Secretary can determine by looking at a nomination paper submitted for either a statewide or local candidate whether the local candidate has enough signatures from residents in his or her district because they would be separated by county. Id. at 16. Otherwise, she would have to review all of the nomination papers submitted to search for each endorsement of a local candidate. They argued the submission of county-by-county nomination papers constitutes a minimal burden.
In our March 2, 2015 Memorandum, we considered plaintiffs' motion viewing the facts in the light most favorable to the defendants. We found genuine issues of material fact as to the degree of burdensomeness and the extent of the governmental interest involved. We held that the defendants, who are the party without the burden of proof, failed to point to the lack of evidence supporting the plaintiffs' claim and provided no affidavits or other admissible ...