On June 20, the state of Pennsylvania filed its brief in the pending 3rd circuit ballot access case, Rogers v Cortes, 06-2241.
The minor parties’ strongest argument is that since they already meet the definition of “political party” (a group that polled 2% of the highest vote-getter’s vote in the previous election), they have already proved they have a modicum of support. Therefore, as to them, the requirement for 67,000 signatures this year is redundant.
The state brief barely even acknowledges this argument. The state fails to mention the only on-point precedent, the decision of Maryland’s highest state court in 2003, which ruled that since the qualified parties of Maryland had already shown a modicum of voter support, it was unconstitutional to require them to submit petitions for their nominees.
The state argues that if the political party-plaintiff’s argument were accepted, then the state would unconstitutionally be discriminating against unqualified parties and independent candidates. This is logically unsound. It is not discrimination to give ballot access advantages to parties that have already shown they have a modicum of voter support. Indeed, all of the U.S. ballot access jurisprudence is built on this principle.
The state claims that every state has a “safe harbor”; that no petition requirement at or below 5% of the number of registered voters is vulnerable to constitutional attack. It is true that in 1971, the U.S. Supreme Court upheld Georgia’s ballot access laws. But since then, the Court has taken a more pragmatic approach. For example, in 1974 and again in 1977, it said that ballot access laws should be judged according to how often they are used. In 1979 it said that Illinois’ petition of 5% of the last vote cast, for Mayor of Chicago and for Cook County office, was unconstitutional, because it was obvious that it wasn’t needed.
The state also claims that a 1986 ruling of the 3rd circuit said that states may not constitutionally provide primaries to small parties. This is wholly inaccurate. The Consumer Party case struck down a ballot access law for members of small qualified parties to get on their own party’s primary ballots. In that case, the Consumer Party was entitled to its own primary, and it needed 2,000 signatures of party members for an individual to get on the Consumer Party primary (for statewide office). The Consumer Party complained that since it only had 7,000 registered members, this was too difficult. The 3rd circuit agreed with the Consumer Party.
In response, the state could have eased the number of signatures needed for a member of a small qualified party to get on his or her own primary ballot. It could have said the number of signatures is 2,000 or 5% of the party’s membership, whichever is smaller. Instead, the 1986 legislature created the present system, which treats qualified parties as though they weren’t qualified, unless they have registration of 15% of the state total (approximately 1,000,000 voters).
The plaintiff-political parties now have a chance to rebut the state’s brief. The hearing will be in mid-July.