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Constitution Party of Pennsylvania v. Cortes

United States Court of Appeals, Third Circuit

December 13, 2017

*PEDRO A. CORTES; JONATHAN M. MARKS * (Pursuant to Fed. R. App. P. 43(c))

          Argued on March 22, 2017

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. Civil Action No. 5-12-cv-02726) District Judge: Honorable Lawrence F. Stengel

          Oliver B. Hall, Esq. (Argued) Counsel for Appellants

          Claudia M. Tesoro, Esq. (Argued) Counsel for Appellee

          Before: SMITH, Chief Judge, JORDAN and ROTH, Circuit Judges


          ROTH, Circuit Judge

         Numerous individuals and groups, collectively known as the "Aspiring Parties, "[1] filed suit to enjoin the application of certain of Pennsylvania's election laws, arguing that those laws were unconstitutional as applied to them. They prevailed. The District Court then entered a permanent injunction, imposing county-based signature-gathering requirements that the Aspiring Parties must meet in order to appear on the ballot. The Aspiring Parties appeal once more, arguing that those requirements are an unconstitutional vote dilution scheme in violation of the Equal Protection Clause of the U.S. Constitution. We conclude that the record is inadequate to support the signature gathering requirements. For that reason, we will vacate the injunction and remand.

         I. Factual and Procedural Background

         In 2012, the Aspiring Parties filed suit under 42 U.S.C. § 1983 against the Secretary of the Commonwealth of Pennsylvania and the Commissioner of the Pennsylvania Bureau of Commissions, Elections, and Legislation (the Commonwealth) in their official capacities. The Aspiring Parties claimed that certain of Pennsylvania's election laws violated their First and Fourteenth Amendment rights.

         As we explained in greater detail in a prior opinion, political organizations, which are not classified as "major parties" under Pennsylvania law[2] and which wish to place candidates on the ballot, need to gather a considerable number of signatures; the validity of those signatures can be challenged.[3] A successful challenge may, under certain circumstances, result in an award of costs (which may be considerable).[4] The threat of being required to pay these high costs has deterred some candidates from running for office.[5]

         The Aspiring Parties' suit sought to enjoin these requirements. Initially, the case was dismissed for lack of standing, but we reversed on appeal.[6] Next, the District Court held that the statutes were, in combination, unconstitutional as applied to the Aspiring Parties.[7] We affirmed and remanded the case to the District Court.[8]

         On remand, the District Court requested that the Aspiring Parties and the Commonwealth each submit proposed orders which would remedy the constitutional violation. On June 17, 2016, the Aspiring Parties requested an injunction, directing that "Defendant Pedro Cortes shall place the nominees of Plaintiffs Constitution Party of Pennsylvania, Green Party of Pennsylvania and Libertarian Party of Pennsylvania on Pennsylvania's November 8, 2016 general election ballot, "[9] or, in the alternative, that the parties' candidates shall be placed on the ballot if they submit appropriate paperwork "on or before the August 1, 2016 deadline with valid signatures equal in number to the requirements imposed upon major party candidates pursuant to 25 P.S. § 2872.1 . . .."[10]

         The Commonwealth responded by proposing, based on a bill then pending before the Pennsylvania General Assembly, [11] that the Aspiring Parties' candidates be placed on the ballot provided that they gather two and one-half times as many signatures as major party candidates must gather.[12]

         As for the county signature requirements, this bill provided that, for the office of Governor, at least 5, 000 signatures must be gathered to include at least 250 from at least 10 counties. (In Pennsylvania, there are the 67 counties). For other statewide offices, this bill required between 1, 250 and 2, 500 signatures with at least 250 from at least 5 counties.[13]

         Between June 21 and 28, 2016, the District Court held five off-the-record status conferences. At those status conferences, the Aspiring Parties suggested that the county-based signature-gathering requirements in the Commonwealth's proposed order were unconstitutional vote dilution schemes in violation of the Fourteenth Amendment.[14]Both parties submitted letter briefs outlining their positions on that issue.

         On June 30, 2016, the District Court adopted the Commonwealth's proposed order. The District Court did not find any facts, nor did it explain its decision. The Aspiring Parties have appealed, arguing again that the county-based signature-gathering requirements in the District Court's order are unconstitutional.

         II. Discussion[15]

         A. Standard of Review

         Our review of the constitutionality of the District Court's injunction is plenary.[16]

         B. County-Based Signature Requirements

         The question of the constitutionality of county-based signature-gathering requirements has a long history. Over the course of three opinions in the early 1960's, the Supreme Court articulated the principle of "one person, one vote" contained in the Equal Protection Clause.[17] The essence of this principle is that each voter's vote must be counted equally. Observing that the Fifteenth and Nineteenth Amendments protect the rights of people of different races and sexes to vote, the Supreme Court reasoned:

If a State in a statewide election weighted the male vote more heavily than the female vote or the white vote more heavily than the Negro vote, none could successfully contend that that discrimination was allowable. How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote-whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment.[18]

         Thereafter, in Moore v. Ogilvie, the Supreme Court applied this principle to requirements that candidates who wished to have their names placed on the ballot gather a minimum number of signatures from a specified number of counties in a state.[19] In Moore, Illinois required that a candidate, who wished to appear on the ballot, gather signatures from at least 25, 000 qualified voters, including at least 200 qualified voters from each of at least 50 counties in the state.[20] At the time, "93.4% of the State's registered voters reside[d] in the 49 most populous counties, and only 6.6% [were] resident in the remaining 53 counties."[21]Because "the electorate in 49 of the counties which contain 93.4% of the registered voters [might] not form a new political party and place its candidates on the ballot, " but "25, 000 of the remaining 6.6% of registered voters properly distributed among the 53 remaining counties [might] form a new party to elect ...

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