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Benezet Consulting, LLC v. Boockvar

United States District Court, M.D. Pennsylvania

January 13, 2020

BENEZET CONSULTING, LLC, et al., Plaintiffs
v.
KATHY BOOCKVAR and JONATHAN MARKS, [1]Defendants

          MEMORANDUM

          KANE JUDGE.

         Before the Court are Plaintiffs' motion for partial summary judgment (Doc. No. 44) and Defendants' motion for summary judgment (Doc. No. 41). For the reasons that follow, the Court will grant in part and deny in part the motions.

         I. BACKGROUND

         A. Procedural Background

         Plaintiffs Benezet Consulting, LLC (“Benezet”) and Trenton Pool (“Pool”) initiated the above-captioned action by filing a complaint against Defendants Pedro A. Cortes (“Cortes”), in his official capacity as the Secretary of the Commonwealth of Pennsylvania - a position currently held by Defendant Kathy Boockvar (“Boockvar”) - and Jonathan Marks (“Marks”), in his official capacity as Commissioner for the Bureau of Commissions, Elections and Legislation (referred to together herein as “Defendants”) on January 14, 2016, [2] challenging specific provisions of Pennsylvania's Election Code (the “Election Code”), in connection with Pennsylvania's primary election for President of the United States. (Doc. No. 1.) In their first complaint, Plaintiffs requested, inter alia, a declaratory judgment and emergency permanent injunction “on or before January 25, 2016, enjoining defendants from enforcing the challenged provisions and interpretations” of the Election Code as to Plaintiffs. (Id. at 36.) On January 19, 2016, Plaintiffs filed an amended complaint (Doc. No. 3) and motion for a temporary restraining order or emergency preliminary injunction (Doc. No. 4). The Court denied Plaintiffs' motion for a temporary restraining order on January 27, 2016. (Doc. No. 21.) On January 29, 2016, the Court issued an Order deeming Plaintiffs' motion for an emergency preliminary injunction withdrawn and permitting Plaintiffs to file a second amended complaint. (Doc. No. 24.) Plaintiffs filed a second amended complaint - the operative pleading in this action - on February 16, 2016 (Doc. No. 25), naming Plaintiff Carol Love (“Love”) as an additional plaintiff.

         In the second amended complaint, Plaintiffs request declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and seek to prohibit Pennsylvania state officials from enforcing certain provisions of the Election Code, 25 P.S. §§ 2868 and 2969. (Id. ¶¶ 1-2.) Counts I and II allege that the state residency requirement for witnesses of nomination petition circulation under Section 2869 (the “In-State Witness Requirement”) violates the First Amendment both facially and as applied to Plaintiffs. (Id. at 29-32.) Counts III and IV set forth First Amendment challenges to Section 2869's previous requirement that the affidavit accompanying every nomination petition be notarized (the “Notarization Requirement”), both facially and as applied to Plaintiffs. (Id. at 32-36.) Further, Counts V and VI respectively set forth facial and as-applied challenges to Section 2868's prohibition against qualified electors signing more than one nomination petition under the First Amendment. (Id. at 36-40.)

         Plaintiffs also assert additional constitutional claims, in the alternative, for alleged violations of the Equal Protection Clause and the Commerce Clause. Specifically, Counts VII, VIII, and IX set forth equal protection challenges to the In-State Witness Requirement, the Notarization Requirement, and the requirement that registered voters enrolled in major political parties may sign only one nomination petition for each office, respectively. (Id. at 40-44.) Count X sets forth an alternative challenge to the In-State Witness Requirement under the Commerce Clause. (Id. at 44-45.)

         Upon the completion of discovery, Defendants filed a motion for summary judgment on December 22, 2016. (Doc. No. 41.) On the same date, Plaintiffs filed a motion for summary judgment (Doc. No. 44), as to all of their claims, but for their challenge to Section 2868's prohibition on qualified electors signing more than one nomination petition, on the basis that this claim requires trial testimony and may not be resolved at the summary judgment stage (Doc. No. 45). On August 29, 2018, Defendants filed a motion for leave to file a supplemental brief addressing an opinion issued by the United States Court of Appeals for the Third Circuit in De La Fuente v. Cortes, No. 17-3778, on August 7, 2018 (Doc. No. 64), which this Court granted on September 14, 2018 (Doc. No. 66). Accordingly, Defendants filed a supplemental brief in support of their motion for summary judgment on September 28, 2018 (Doc. No. 67), to which Plaintiffs filed a brief in response on October 12, 2018 (Doc. No. 68). Defendants filed a reply brief on October 26, 2018. (Doc. No. 71.) On December 20, 2019, the Court ordered Plaintiffs to show cause why their challenges to the Notarization Requirement should not be deemed moot in light of recent amendments to the pertinent portion of the Election Code (Doc. No. 72), to which Plaintiffs filed a response on January 6, 2020 (Doc. No. 73). Having been fully briefed, the parties' motions for summary judgment (Doc. Nos. 41, 44) are ripe for disposition.

         B. Factual Background[3]

         In the context of Pennsylvania's primary elections, Section 2868 of the Election Code, 25 P.S. § 2868, provides that qualified electors are prohibited from signing more than one nomination petition for a given office.[4] Section 2868 reads, in pertinent part, as follows: “Each signer of a nomination petition shall sign but one petition for each office to be filled, and shall declare therein that he is a registered and enrolled member of the party designated in such petition.” See 25 P.S. § 2868. In addition, Section 2869 of the Election Code articulates two requirements relevant to the instant action. First, Section 2869 sets forth the In-State Witness Requirement, stating, in pertinent part, that each sheet of a nomination petition “shall have appended thereto the statement of the circulator of each sheet” setting forth that he or she is a qualified elector of the Commonwealth. See 25 P.S. § 2869. Section 2869 also previously set forth the Notarization Requirement, which required that the affidavit accompanying each nomination petition be notarized. See id. Section 2869, however, was amended subsequent to the commencement of this case so as to remove the Notarization Requirement.[5]

         Benezet is a Texas limited liability company, of which Pool is the only member, that was formed in 2014 and is involved in the business of gathering signatures for political campaigns. (Doc. No. 46 ¶¶ 1-3.) Benezet's business specifically deals with “political consulting, ballot access[, ] and signature gathering” (id. ¶ 4), and Benezet became involved in gathering signatures in 2006 (id. ¶ 6). Pool is a registered Republican in the state of Texas (id. ¶ 99), while Love is a registered Republican who resides in Pennsylvania (id. ¶ 83).

         Benezet took part in signature-gathering efforts in Pennsylvania as part of the 2016 presidential election. (Id. ¶¶ 5, 7.) In doing so, Benezet hired signature gatherers as independent contractors, consistent with its past practice. (Id. ¶ 7.) As part of their efforts to gather signatures, “Benezet's circulators . . . move[] around the country as needed to meet individual state deadlines” (id. ¶ 9), and its “contractors are paid on a per signature basis” (id. ¶ 10).

         1. Facts as Stated in Support of Plaintiffs' Motion for Summary Judgment

         a. Benezet Consulting and Signature-Gathering

         In 2016, Benezet entered into a contract to gather signatures for Ted Cruz in his candidacy for the Republican nomination, Rocky De La Fuente in his candidacy for both the Democratic nomination and as an independent candidate, and Donald Trump as a Republican candidate. (Id. ¶ 5.) Under such contracts, “Benezet's circulators [are] moved around the country as needed to meet individual state deadlines” while its contractors are paid weekly “based on work/signatures actually produced.” (Id. ¶¶ 9-10.) Further, “Benezet always hired signature [gatherers] as independent contractors.”[6] (Id. ¶ 7.) During the 2016 presidential election season, Benezet was “paid by Cruz in Pennsylvania on a per signature basis” and “by De La Fuente . . . [on] a per signature basis, ” and under this arrangement, “[t]he more signatures that Benezet collect[ed], the more money that Benezet earn[ed].”[7] (Id. ¶ 12.)

         b. Benezet's Signature-Gathering and the Challenged Election Code Provisions: In-State Witness Requirement

         According to Benezet, the In-State Witness Requirement requires it “to charge higher rates per signature than in other states, ” as Pool “had to pay witnesses to work with his professional circulators in Pennsylvania.” (Doc. No. 46 at ¶¶ 15-16.)[8] The requirement posed additional problems for its signature-gathering efforts during the election because of issues relating to the work performance of certain witnesses, as well as their availability. Specifically, the alleged behavior of one witness in Bucks County, Pennsylvania deterred certain voters from signing a petition for Ted Cruz.[9] (Id. ¶ 26.) Further, Benezet experienced difficulty in “find[ing] enough witnesses to circulate nomination petitions” in three out of five congressional districts (id. ¶ 27), and “[t]he lack of Pennsylvania in-state witnesses caused Cruz delegates [not to] make it onto the 2016 primary election ballot” (id. ¶ 26). Additionally, Benezet experienced issues with a particular Pennsylvania in-state witness who “extorted additional money from Pool after the signatures had been gathered” and “threaten[ed] not to execute the affidavit unless he was paid more money, ” an occurrence that, in Pool's assessment, happens frequently. (Id. ¶¶ 30-31.) Moreover, Pool claims that certain circulators do not “want to work with witnesses.” (Id. ¶ 33.) According to Pool, while some witnesses “would also get signatures, ” they did so “at a lower rate than the professional circulators, ” and there were instances in which witnesses were unreliable in arriving at work.[10] (Id. ¶ 39.) Benezet allegedly “would have brought in more circulators for the 2016 presidential nominating petitions” were it not for the In-State Witness Requirement.[11] (Id. ¶ 45.)

         c. Benezet's Signature-Gathering and the Challenged Election Code Provisions: Notarization Requirement

         Benezet states that in order to comply with the Notarization Requirement, it must bear several costs. According to Pool, “notarizations costs at least $5.00 per acknowledgement, ” and the “[n]otarization costs for the petitions Benezet collected for Cruz was $1, 500 to $1, 600 for delegates in three or four congressional districts.” (Doc. No. 46 ¶ 51.) Further, Pool testified that obtaining a notary at certain times is difficult, stating that “[f]inding a notary after 5:00 p.m.‘is almost impossible'” and in order to get petitions notarized on a daily basis, petitioners had to stop early and lose valuable time to gather more signatures[, ] but not notarizing every day risks losing signatures if the in-state witness does not show up to execute the petitions at a later date.” (Id. ¶ 52.) Pool also testified that, in states permitting circulators to work without sworn affidavits, circulators “are able to circulate for longer periods of time” than circulators in states that do have such a requirement. (Id.) In addition, Benezet asserts that the text of the affidavit required in Pennsylvania has been confusing to some witnesses. (Id. ¶ 53.)[12] In the general context of Benezet and Pool's involvement in Pennsylvania's primary election process, “Pool is willing to sign an affidavit, or any other paper, placing himself within and consenting to the jurisdiction of Pennsylvania judicial officials with respect to any investigative or judicial procedure seeking to investigate and prosecute violations of Pennsylvania election law.” (Doc. No. 25 ¶ 21.)

         2. Facts as Stated in Support of Defendant's Motion for Summary Judgment

         According to Defendants, the challenged provisions “do not prevent anybody from coming into Pennsylvania and handing out leaflets for candidates, [] from talking to people on the street about candidates, or from carrying signs about candidates or issues” during the primary election season. (Doc. No. 42 ¶ 17.) Further, various witnesses testified that in previous presidential elections, signature collectors were able to obtain “a significant amount of signatures” in Pennsylvania while adhering to the in-state witness and notarization requirements. (Id. ¶ 18-36.)

         Additionally, pursuant to the arrangement under which Benezet is paid per signature, “Benezet prices the per signature rate such that it will make a profit.” (Id. ¶ 47.) Moreover, as independent contractors, those working as signature collectors “are free to collect signatures for Benezet[, ] any other signature collection company[, ] for candidates[, ] or issues on their own[, ]” and “by whatever method [they] may choose.” (Id. ¶¶ 51, 53.) Because the signature gatherers “are paid on a per signature basis . . . they are driven to get as many signatures as possible in the shortest time as possible so as to maximize earnings.” (Id. ¶ 55.) According to the testimony of one signature gatherer, “the time spent with any potential signor is ‘very quick, like in a matter of seconds' and if there is a hint that there will be no signature, that collector will just move on and talk no further.”[13] (Id. ¶ 57.)

         During the 2016 election cycle, “Benezet collected about 4, 000 signatures for . . . Cruz in Pennsylvania, ” and “the affidavits of circulator[s] on the nomination petitions for . . . Cruz were signed by Pennsylvania residents and were notarized.” (Id. ¶¶ 69-70.) Further, “the collectors made sure that those who signed had not signed for another Republican candidate for President of the United States.” (Id. ¶ 70.) Benezet collected approximately 5, 000 signatures for De La Fuente in Pennsylvania while complying with similar restrictions.[14] (Id. ¶ 74.) In addition, Defendants stated that Benezet would be profitable in 2016 and that, “[i]n fact, Benezet [would] likely make more money off of its efforts in Pennsylvania than anywhere else.” (Id. ¶ 83.)

         As to the Notarization Requirement, Defendants refer to the presence of “some 80, 000 notaries” in Pennsylvania, and note that there is a prohibition on notaries “charg[ing] more than $5.00 for their notary fee.” (Id. ¶¶ 91-92.) Further, notaries across the Commonwealth may be found on a public website managed by the Commonwealth (id. ¶ 93), and the Commonwealth screens prospective notaries before granting them a notary license (id. ¶ 94). Additionally, with regard to the prohibition on signing multiple petitions, Defendants state that “Love testified that she does not recall ever being approached to sign a petition to get a Republican or Democratic candidate on the primary ballot for President” (id. ¶ 96), and that “Love does not recall who she voted for in the 2016 Republican primary; nor does she recall whether she voted or not in several past Presidential elections” (id. ¶ 97).

         II. LEGAL STANDARD

         A. Summary Judgment

         Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis for allowing a reasonable factfinder to return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. See id. at 251-52. In making this determination, a court must “consider all evidence in the light most favorable to the party opposing the motion.” See A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

         The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. See Conoshenti v. Pub. Serv. Elec. & Gas. Co., 364 F.3d 135, 145-46 (3d Cir. 2007). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” See Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial, ” summary judgment is warranted. See Celotex, 477 US. at 322. With respect to the sufficiency of the evidence that the non-moving party must provide, a court should grant a motion for summary judgment when the non-movant's evidence is merely colorable, conclusory, or speculative. See Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. See id. at 252; see also Matsushita Elec. Indus. Co. v. Mem'l Hosp., 192 F.3d 378, 387 (3d Cir. 1999).

         The standard applicable to a motion for summary judgment “is no different where there are cross-motions for summary judgment.” See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). As explained by the United States Court of Appeals for the Third Circuit:

Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one if rejected the other is necessarily justified or that the losing party waives judicial consideration and determination [of] whether genuine issues of material fact exist.

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968) (citing F.A.R. Liquidating Corp. v. Brownell, 209 F.2d 375, 380 (3d Cir. 1954)).

         Thus, a district court presented with cross-motions for summary judgment is instructed to evaluate the motions separately, “and view the evidence presented for each motion in the light most favorable to the nonmoving party.” See Borrell v. Bloomsburg Univ., 63 F.Supp.3d 418, 433 (M.D. Pa. 2014) (citations omitted). “[E]ach movant must demonstrate that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the [C]ourt must deny [both] motions.” Quarles v. Palakovich, 736 F.Supp.2d 941, 946 (M.D. Pa. 2010) (citing Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008)). “The standard for addressing cross-motions for summary judgment remains the same as if there were only one motion filed.” Beneficial Mut. Sav. Bank v. Stewart Title Guar. Co., 36 F.Supp.3d 537, 544 (E.D. Pa. 2014) (citing Lawrence v. City of Phila., 527 F.3d at 310). “When both parties move for summary judgment, ‘[t]he [C]ourt must rule on each party's motion on an individual separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Auto-Owners Ins. Co. v. Stevens & Ricci, Inc., 835 F.3d 388, 402 (3d Cir. 2016) (first alteration in original) (quoting 10A Charles Alan Wright, et al., Federal Practice & Procedure § 2720 (3d ed. 2016)).

         B. Facial Versus As-Applied Constitutional Challenges

         “A party asserting a facial challenge ‘must establish that no set of circumstances exists under which [an act] would be valid.'” Heffner v. Murphy, 745 F.3d 56, 65 (3d Cir. 2014) (quoting United States v. Mitchell, 652 F.3d 387, 405 (3d Cir. 2011)). “This is a particularly demanding standard and is the ‘most difficult challenge to mount successfully.'” Id. (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). “By contrast, ‘[a]n as-applied attack . . . does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right.” Id. (alterations in original) (quoting United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010)). The United States Supreme Court “typically disfavor[s] facial challenges” because “[t]hey ‘often rest on speculation,' can lead courts unnecessarily to anticipate constitutional questions or formulate broad constitutional rules, and may prevent governmental officers from implementing laws ‘in a manner consistent with the Constitution.'” See John Doe No. 1 v. Reed, 561 U.S. 186, 230 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)). “If a litigant decides to bring both types of challenge, a court's ruling on one might affect the other.” Knick v. Twp. of Scott, 862 F.3d 310, 321 (3d Cir. 2017) (citing Heffner, 745 F.3d at 65 n.7), vacated in part, 139 S.Ct. 2162 (2019). “But if a litigant loses an as-applied challenge because the [C]ourt rules as a matter of law that the statute or ordinance was constitutionally applied to her, it follows a fortiori that the law is not unconstitutional in all applications.” Id. at 321 (citing Dickerson v. Napolitano, 604 F.3d 732, 741 (2d Cir. 2010)).

         III. DISCUSSION

         A. Subject Matter Jurisdiction over ...


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