U.S. District Court Rules Pennsylvania System of Imposing Costs on Minor Party Petitions that Lack Sufficient Signatures is Unconstitutional

On July 24, U.S. District Court Judge Lawrence Stengel issued a 41-page opinion in Constitution Party of Pennsylvania v Cortes, e.d., 12-cv-2726. He determined that Pennsylvania’s system of charging huge court costs against petitioning candidates and groups violates the U.S. Constitution, as applied to the minor parties who filed the lawsuit. The three parties who filed the lawsuit are the Constitution, Green and Libertarian Parties. UPDATE: see this newspaper story.

The decision rests on the fact that it has become routine in Pennsylvania for major party figures to challenge, or to threaten to challenge, statewide minor party petitions. The decision goes through the sad history. The idea of charging up to $100,000 in court costs originated in Pennsylvania in 2004, when Ralph Nader was subject to costs of $81,102 after his petition was rejected. The opinion then describes the 2006 election, when Green Party U.S. Senate nominee Carl Romanelli was ordered to pay $80,407, after the other Green Party statewide nominees had withdrawn for fear of costs. Then the decision describes 2008, when the Green and Constitution Parties did not even try to petition in Pennsylvania. Then the decision discusses 2010, when the Libertarian and Green Parties both petitioned, but after both were threatened, they withdrew their petitions.

Then the decision discusses 2012, when the Libertarian Party was threatened again, but it defended its petition and that petition was found valid. The decision talks about the burden on the Libertarians, who had to find 70 volunteers to sit all day during the validation process. The decision also notes that the Constitution Party withdrew its petition. The Green Party did petition and it wasn’t challenged, perhaps because it only fielded candidates for President but none of the other statewide offices. Finally, the decision mentions 2014, when no statewide minor party submitted any petitions.

Although the decision only applies to the three plaintiffs, the basis for the decision would apply to any statewide minor party or independent candidate, because, as the decision notes, minor party and independent candidates for statewide office need so many signatures (typically 25,000), that their costs when petitions are rejected are very large. The decision does not apply yet to major party candidates petitioning to get on the ballot in the primary because they never need more than 2,000 signatures. Also the decision notes that no major party person seeking to get on a primary for statewide office has ever been subject to court costs.

This is a major victory for ballot access. The case was won by Oliver Hall, who has been Ralph Nader’s ballot access attorney for many years.


U.S. District Court Rules Pennsylvania System of Imposing Costs on Minor Party Petitions that Lack Sufficient Signatures is Unconstitutional — 20 Comments

  1. Not in a formal sense, but conceivably the law firm that grabbed his money might decide to refund it. Reed Smith has had bad publicity lately over what it did, notably just a few days ago in the Harvard Law Record.

  2. I don’t understand what happened with this part (on page 4 of the opinion):

    For statewide candidates, 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.

    Why was the minimum signature requirement more than twice as high in 2006 than any other year? I realize that 2004 was a presidential year and so turnout was higher, thus resulting in a higher signature requirement in the following even-numbered year, but 2008 and 2012 were presidential years too and yet the signature requirements in 2010 and 2014 were much lower.

  3. The reason the petition requirement was so high in 2006 is that there was no statewide partisan judicial race in 2005. Normally the petition requirement in even years is 2% of the winner’s vote in the odd year elections just preceding. But it was just an unlucky accident that there was no such election in 2005, so the 2006 petition requirement depended on the 2004 turnout. Odd year judicial elections in Pennsylvania don’t get good turnouts. There will be judicial elections in 2015, fortunately.

  4. What is the judge’s order? (What is the immediate practical effect?)

  5. The “Final Judgment”, a separate one-page document, says, “25 P.S. 2911(b) and 25 P.S. 2937 are declared unconstitutional as applied to plaintiffs.”

  6. Most of the statewide elections were odd-year elections for statewide judges. 2006 is exceptional because there were no judicial races in 2005, so that the relevant total was from the 2004 election. The basis is the vote total for the _single candidate_ with the most votes. In 2004 that was Bob Casey who when elected as Treasurer received 400,000+ more votes than John Kerry.

    Pennsylvania appellate judges run for 10-year terms, and then run for re-election for 10-year terms. In 2005, there were two retention elections, but no open seats.

    Pennsylvania has 31 judges elected statewide (3 courts), so despite the long terms, and the use of retention elections, there will usually be some judicial elections in odd years.

  7. Obviously the PA regime willl appeal.

    NO sanction for BAD petitions ???

    — the costs of those allegedly hard working election law bureaucrats to verify petitions ???

    See the sanctions for filing junk stuff [i.e. claims] in the courts.

  8. I don’t think Pennsylvania will appeal. Pennsylvania didn’t appeal the other ballot access case in which the US District Court struck down 3 other ballot access laws: (1) the ban on a voter signing for two or more different petitions for the same office; (2) the ban on out-of-state circulators; (3) the requirement that each petition sheet be notarized.

  9. I agree with Mr. winger that PA will NOT appeal this one.
    I was Carl Romanelli’s lawyer in 2006. I did raise the question that the State Dept used the wrong election to calculate the 2%. Judge Colins disagreed that the State Supreme Court JUDICIAL RETENTION ELECTION was NOT an ELECTION for calculating the 2% rule. HE HAD TO RELY ON AN OBSCURE CASE FROM GEORGIA as authority. He did certify the question to the Supreme Court which ultimately affirmed.

  10. There’s been a lot of good momentum in PA ballot access cases this year. This is great news that was a long time coming. Thanks to the attorneys for all their hard work. Hopefully this means there will be some more choices on the ballot in PA.

  11. @Richard and @Jim: Thanks, I did not know about the odd-year statewide judicial races.

  12. Under the Pa. Election Code, costs and fees can be awarded at the court’s discretion for any successful challenge to a defective nominating petition. So whether it is a Dem challenging a GOP or a Green challenging a Dem, the court can make such award . Take this example: Dem candidate #1 forges 200 names on Dem nominating petition. Dem #2 hires attorney to file court challenge, ($10,000) and handwriting expert is put on retainer. ($2000). court challenge is successful; #1 thrown off ballot. Why should not the guilty candidate , who forged signatures , have to repay the costs incurred in the challenge?

  13. Forgery is a crime. The candidate who himself or herself forged names on a petition would be liable to be charged with a felony. That has nothing to do with the issue of whether a candidate who submits a petition that lacks a sufficient number of valid signatures should pay court costs in the petition validation process. It is ridiculous for any state to force the judiciary to determine if signatures on a petition are valid or not. Judges are high-paid individuals who have better things to do with their valuable time than perform a ministerial task.

  14. Congratulations to Pennsylvania voters and the Constitution, Green and Libertarian Parties! And thank you to the Oliver Hall the attorney and to Richard Winger for keeping us informed.

  15. What I don’t understand: why was the party challenging the petitions that eventually proved to be valid not charged the same $80,000+, as the candidates whose petitions were found to be invalid? Anybody know?

  16. Well, this was a hard-won victory for democracy. (I can almost feel the “Libertarians” squirm with positive use of the term, since they hate democracy and confuse it as being synonymous with “coercive collectivism.”)

    …So glad they can carry on with their core mission of making classical liberalism a microcosm of the “anarchy v. minarchy” debate in the USA! It’s also good that the out-of-state petitioner ban was abolished, so that now, when the LP hires their favorite contractor from the Philadelphia, they’ll have one reason less for firing all of the people putting State legislative candidates on the ballot.

    Sooner or later, if enough of his excuses are eliminated, the FBI might have to find a new, less-trusted substitute for their goon who sits on the LNC.

    Until then, let the nitpicking over esoteric philosophical minutiae commence!

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