On May 19, the Third Circuit found that the Constitution, Green and Libertarian Parties of Pennsylvania all lack standing to challenge three election law problems. The 10-page opinion says the parties lack standing to challenge the system of imposing costs of up to $110,000, because all their statewide candidates in 2010 voluntarily withdrew their petitions after they were challenged. According to this logic, the candidates would need to actually risk being assessed costs, to challenge the system.
The opinion says the parties lack standing to challenge the 15% registration requirement for permanent ballot status, because their complaint seems to be related to the fear that costs will be imposed on them if they are forced to petition. Of course, the parties had challenged the 15% petition because the petition is intrinsically onerous, not just because they are afraid to jeopardize their finances. Finally, the opinion says the parties can’t challenge the failure of many counties to canvass write-in votes, because to do this, they should have waited until after the 2010 election and specify the exact details of this failure. The fact that the parties had presented evidence that 2008 write-ins had not been counted in many counties seems not to matter.
There is not a word in this short opinion about the issues themselves, so in theory all of these issues can be raised again in a new lawsuit, with a different procedural posture. The opinion is stamped “not precedential”, which probably means it won’t be published. It is possible the plaintiff political parties will ask for a rehearing en banc, or appeal to the U.S. Supreme Court. The written was written by Judge Michael Chagares (a Bush Jr. appointee), and signed by Judges Maryanne Trump Barry (a Clinton appointee, and sister of Donald Trump), and Jane Roth (a Bush Sr. appointee). These judges had not permitted any oral argument in this case.
