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The Constitution Party of Pennsylvania v. Cortes

United States District Court, E.D. Pennsylvania

July 23, 2015

PEDRO CORTES, et. al., Defendants

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For The Constitution Party of Pennsylvania, The Green Party of Pennsylvania, The Libertarian Party of Pennsylvania, Joe Murphy, James N. Clymer, Carl J. Romanelli, Thomas Robert Stevens, Ken Krawchuk, Plaintiffs: OLIVER B. HALL, LEAD ATTORNEY, CENTER FOR COMPETITVE DEMOCRACY, Washington, DC USA; JAMES N. CLYMER, CLYMER & MUSSER PC, Lancaster, PA USA.


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This is an action brought by three political parties to challenge a portion of Pennsylvania's Election Code. The Constitution Party of Pennsylvania (CPPA), the Libertarian Party of Pennsylvania (LPPA), the Green Party of Pennsylvania (GPPA), and several party leaders[1] contend that the Commonwealth's ballot access rules violate the First and Fourteenth Amendments to the United States Constitution. Specifically, plaintiffs attack 25 P.S. § 2911(b)[2] and

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25 P.S. § 2937[3] which, in combination, force a minority party to assume the risk of incurring substantial financial burdens to defend nomination papers they are required by law to submit. Plaintiffs assert both as-applied and facial challenges against the Election Code. The defendants are Pedro Cortes, the Secretary of the Commonwealth, and Jonathan Marks, the Commissioner of the Bureau of Commissions, Elections, and Legislation.[4] The plaintiffs and the defendants have filed cross motions for summary judgment. For the reasons that follow, I find that the statutes are unconstitutional as applied to the plaintiffs but they are facially valid.

I Background

To place the plaintiffs' allegations in context, I will first discuss the relevant provisions of the Pennsylvania Election Code.

a) The Pennsylvania Election Code

The Pennsylvania Election Code distinguishes political parties from political bodies. 25 P.S. § 2831(a). A political party is one whose candidates " 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" in the preceding general election.[5] Id. Political bodies are those groups which do not cross the 2% threshold. § 2831(c). The Election Code further classifies political parties as either major or minor parties. Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 350-51 (3d Cir. 2014) (citing § 2872.2(a)). A minor party is " a political party whose state-wide registration is less than fifteen per centum of the combined state-wide registration for all state-wide political parties...." § 2872.2(a). The major parties[6] are those whose membership exceeds 15% of all registered voters.

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Aichele, 757 F.3d at 350-51. " At present, there are only two major parties in Pennsylvania, the Democratic Party and the Republican Party, as has been the case since the election code was enacted more than three-quarters of a century ago." Id. at 351.

Neither the CPPA, LPPA nor GPPA fielded candidates in the 2014 general election and are currently classified as political bodies. Pls.' Statement of Undisputed facts, doc. no. 60-2, ¶ 40. In earlier years, plaintiffs have qualified as minor political parties. Pls.' Statement of Undisputed Facts ¶ ¶ 1-3.[7] " Ultimately, the distinction between minor parties and political bodies is of less consequence in this case than is the distinction between major parties and non-major parties, since all non-major parties face essentially the same fight to get their candidates on the ballot through the submission of nominating papers." Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 351 (3d Cir. 2014). Despite the plaintiffs' current classification, I will, at times, refer to the plaintiffs as the minor parties.

The major political parties place their candidates on the general election ballot by way of publicly funded primary elections. § 2862. To access the primary election ballot, major party candidates for President, United States Senator and Governor[8] must submit nomination petitions containing at least 2,000 valid signatures of registered members of their party. § 2872.1. Major party candidates for Pennsylvania Treasurer, Auditor General and Attorney General must obtain 1,000 valid signatures.[9] Id. Major party candidates for statewide office circulate nomination petitions for three weeks ending on the tenth Tuesday prior to the primary election when they must file the petitions with the Secretary of the Commonwealth. § § 2868, 2873(c). " The winner of the plurality of votes in the primary is placed on the general election ballot as the candidate of his or her respective party." Rogers v. Corbett, 468 F.3d 188, 191 (3d Cir. 2006).

Minor party, political body and independent candidates do not run in primary elections. § 2872.2; § 2911. Instead, they must circulate nomination papers in order to place their names on the general election ballot. § 2911(b). For statewide candidates,[10] the number of valid signatures required must exceed 2% of the " largest entire vote cast for any elected candidate in the State at large at the last preceding election at which State-wide candidates were voted for." § 2911(b). In recent years, the minimum signature requirement has been 25,697 in 2004; 67,070 in 2006; 24,666 in 2008; 19,056 in 2010; 20,601 in 2012; and 16,639 in 2014. Pls.' Statement of Undisputed Facts ¶ 10. Candidates have approximately five months to circulate

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nomination papers which must be filed on or before August 1. § 2913(b); Rogers, 468 F.3d at 191; Dfs.' Statement of Undisputed Facts, doc. no. 59-2, ¶ 14.[11] The 2% signature requirement was enacted in 1971,[12] Aichele, 757 F.3d at 353 (internal citations omitted), and does not violate plaintiffs' associational rights or their rights to equal protection of the law. Rogers, 468 F.3d at 197 - 98.

The Secretary must examine both the nomination petitions filed by major party candidates and the nomination papers[13] filed by non-major party candidates and reject those petitions and papers which contain material errors, material alterations, or an insufficient number of signatures. § 2936. Although permitted to do so, id., the Secretary and his staff do not review the validity of signatures appearing on the nomination petitions and papers. Defs.' Statement of Undisputed Facts ¶ 18. The verification of signatures is left to private parties who, within seven days of the filing deadline, may object to the validity of a candidate's signatures and petition[14] the Commonwealth Court to set aside the nomination petition or paper. § 2937; In re Nader, 588 Pa. 450, 905 A.2d 450, 459 (Pa. 2006) (" Commonwealth Court has original exclusive jurisdiction of matters relating to statewide office." ). The Commonwealth Court must set aside the nomination petition or paper if it finds:

that said nomination petition or paper is defective under the provisions of [§ 2936] or does not contain a sufficient number of genuine signatures of electors entitled to sign the same under the provisions of this act, or was not filed by persons entitled to file the same....

§ 2937. " [A] member of an opposing party [or an unaffiliated elector] does not have standing to challenge the nomination petition of a candidate in another party's primary election." In re Williams, 155 Pa.Cmwlth. 494, 625 A.2d 1279, 1281 (Pa.Cmwlth. 1993). On the other hand, any registered voter in the Commonwealth, regardless of party affiliation, may challenge the nomination paper of a non-major party candidate seeking a place on the general election ballot. Cf. In re Barlip, 59 Pa.Cmwlth. 178, 428 A.2d 1058, 1060 (Pa.Cmwlth. 1981) (" [I]t is clear that any person who is registered to vote in a particular election has a substantial interest in obtaining compliance with the election laws by any candidate for whom that elector may vote in that election, and such electors therefore have standing to challenge the nominating petitions of those candidates." )

Pennsylvania is the only state which venues petition verification in the judiciary.

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Pls.' Statement of Undisputed Facts ¶ 13. Other states shoulder the costs of petition verification, and the task is conducted by the employees of an executive branch agency. Id. The process is quite different in Pennsylvania. At the beginning of each challenge proceeding, the Commonwealth Court issues its standing order instructing both the candidate and objector to provide workers to review the signatures on the challenged nomination paper. Pls.' Statement of Undisputed facts ¶ 13. The workers compare the information on the nomination paper with the information recorded in the Statewide Uniform Registry of Electors (" SURE" ) system.[15] Defs.' Statement of Undisputed Facts ¶ 22. Based on this review, the candidates and objectors stipulate to the validity or invalidity of as many signatures possible. Order at ¶ 5, In Re: Nomination Paper of Virgil H. Goode, No. 508 M.D. 2012 (Pa. Commw. August 10, 2012), doc. no. 60-1, p. 8-11. The Court then reviews the signatures that remain in dispute and ultimately determines whether the candidate should be placed on the ballot. Defs.' Statement of Undisputed Facts ¶ 26. The Commonwealth Court's procedure for signature verification is an exercise of its inherent powers. The procedures are not mandated by the Election Code. Id. ¶ 24.

At the conclusion of an objection proceeding, the Commonwealth Court may award costs " as it shall deem just." § 2937. " [A]n award of costs to the prevailing party is not warranted solely on the basis that the party prevailed in the underlying nomination petition challenge." In re Farnese, 609 Pa. 543, 17 A.3d 357, 369 (Pa. 2011) (reversing an award of costs to candidate). An award of costs may be appropriate where " fraud, bad faith, or gross misconduct is proven, ... [but] a party's conduct need not proceed to such an extreme before an award of costs may be dictated by justice." Id., at 372. In awarding costs, the Commonwealth Court must keep in mind: the candidate's right to run for office; the voters' right to elect the candidate of their choice; that objections serve an important check on the nomination process; and that " both parties in election contests are operating within the truncated timeframes[16] of the Election Code." Id. at 372 - 73.

b) Recent Elections

In 2000, 2002 and 2004, the minor parties had candidates on Pennsylvania's general election ballot. Pennsylvania Department of State, Election Returns, . Each of the plaintiffs crossed the 2% threshold in 2004 and attained minor party status. See Pls.' Statement of Undisputed Facts ¶ 15. Ralph Nader and Peter Camejo also attempted to place their names on the 2004 ballot as independent candidates for President and Vice President respectively. However, private parties successfully challenged the Nader/Camejo nomination papers, and the Commonwealth Court removed the independent candidates from the ballot. Additionally, the Court ordered the independent candidates to pay the objectors' court costs in the amount of $81,102.19 upon a finding of extensive fraud and deception in the signature gathering efforts. In re Nomination Paper of Nader, 588 Pa. 450, 459, 466, 905 A.2d 450 (Pa. 2006) cert. denied

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549 U.S. 1117, 127 S.Ct. 995, 166 L.Ed.2d 712 (2007). This was the first time costs were assessed against a defending candidate for failing to submit the required number of valid signatures.[17] Aichele, 757 F.3d at 353; Pls.' Statement of Undisputed Facts ¶ 16. The imposition of such substantial costs was shocking to plaintiffs and has hindered the minor parties' efforts to recruit and place candidates on the general election ballot.

In 2006, the CPPA, GPPA and LPPA nominated candidates for Governor, Lieutenant Governor and U.S. Senate.[18] Pls.' Statement of Undisputed Facts ¶ 17. Due to the threat of litigation costs, the CPPA and LPPA candidates refused to file nomination papers. Id. The GPPA candidates filed nomination papers and an objection was filed. For fear of cost shifting, Marakay Rogers and Christina Valente, the GPPA candidates for Governor and Lieutenant Governor, withdrew from the election upon receiving the challenge. Id.; First Decl. of Christina Valente, doc. no. 46-1 at 13-14,[19] ¶ 5. Carl Romanelli, the GPPA candidate for United States Senate, was the only minor party candidate to defend his nomination papers. Pls.' Statement of Undipusted Facts ¶ 18. Mr. Romanelli's defense was unsuccessful.

The Commonwealth Court ordered Mr. Romanelli and the objectors to each provide nine individuals to verify signatures for each day of the challenge, In re Nomination Paper of Rogers, 942 A.2d 915, 920 (Pa. Commw. Ct.) aff'd sub nom. In re Rogers, 598 Pa. 598, 959 A.2d 903 (Pa. 2008), but Mr. Romanelli was unable to comply with this order. Rather, on average, only six individuals were present for Mr. Romanelli during the 29 days of proceedings. Id. at 926. Despite Mr. Romanelli filing 99,802 signatures, the challengers were able to successfully strike over 32,000 signatures, and the court set aside the nomination papers. Pls.' Statement of Undisputed Facts ¶ 18. As a result, no plaintiff fielded a candidate in the 2006 election and each lost their status as a minor party. Pls.' Statement of Undisputed Facts ¶ 20.

The Commonwealth Court awarded costs to Mr. Romanelli's challengers in the amount of $80,407.56. In re Nomination Paper of Rogers, 942 A.2d at 930. The first portion of the award represented court and witness fees in the amount of $32,122.56. Id. at 923 - 927.[20] The court

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awarded this amount pursuant to § 2937 because Mr. Romanelli's failure to provide nine workers each day unnecessarily prolonged the review process. Id. at 926. The second portion of the award was for the challengers' counsel fees totaling $48,285.00.[21] Id. at 929. Since the Election Code does not authorize the imposition of attorney fees, the court relied on the Judicial Code which allows for counsel fees as a sanction for " dilatory, obdurate or vexatious conduct." Id. at 928 (citing 42 Pa.C.S. § 2503(7)). In addition to failing to provide adequate signature verifiers, the court found that Mr. Romanelli and his counsel had been disingenuous in their representations that they could rehabilitate enough signatures to keep Mr. Romanelli on the ballot. Id. at 922. Thus, the Court found that the conduct of Mr. Romanelli had " crossed the line into bad faith" warranting attorney's fees.[22] Id. at 928.

In 2008, the LPPA fielded candidates for President, Vice President, Attorney General, Auditor General and Treasurer, and their nomination papers went unchallenged.[23] Pls' Statement of Undisputed Facts ¶ 22. While the national Constitution and Green Parties nominated candidates for President and Vice President in 2008, the parties did not file nomination papers in Pennsylvania because " supporters were unwilling to devote time and resources to a petition drive that could result in substantial assessment of costs against their nominees." Pls' Statement of Undisputed Facts ¶ 23.

In 2010, the LPPA and GPPA candidates filed nomination papers for U.S. Senator and Governor. John Krupa, CPPA's 2010 nominee for Governor, did not submit papers to the Department of State because he could not afford to incur litigation costs. Id. ¶ 28. Challengers aided by the Democratic and Republican parties objected to

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the LPPA and GPPA nomination papers. As a result, Melvin Packer, GPPA's nominee for U.S. Senate, withdrew his nomination papers. Id. ¶ 27. On August 16, Ronald Hicks, Esq., the attorney representing LPPA's challengers, sent an email to Marc Arrigo, Esq., LPPA's attorney, stating:

Following up on our conversation earlier this evening, I do not have exact figures on what our costs will be if this signature count continues and my clients are required to complete the review and/or move forward with a hearing. However, a rough estimate would be $92,255 to $106,455.... These costs are comparable to the costs awarded in recent years by the Commonwealth Court in similar nomination paper challenges... which, as you know, were assessed not only against the candidates but also their lawyers and their law firms.

Pls.' Statement of Undisputed Facts ¶ 25. The LPPA candidates withdrew their nomination papers the next day. Id. ¶ 26. As a result, only Democratic and Republican candidates appeared on the 2010 general election ballot. Id. ¶ 29.

In 2012, Jill Stein and Cheri Honkala, the Green Party Candidates for President and Vice President, filed nomination papers which went unchallenged. Id. ¶ 39. On August 8, 2012, private parties filed challenges to the nomination papers submitted by the CPPA and LPPA. Id. ¶ 33. On August 10, 2012, the Commonwealth Court filed an order in each objection proceeding:

Each party shall have present 20 individuals, in addition to counsel, who are capable of performing computer searches utilizing the SURE system.... The signature review will continue between the hours of 8:30 a.m. and 5:00 p.m., Monday through Friday until further order of Court.... The individuals designated by the parties shall review the challenged signatures commencing with those alleged to be ...

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