The Pennsylvania ballot access case, Constitution Party of Pennsylvania v Cortes, 10-3205, will be decided by these three judges: (1) Jane Roth, a Bush Sr. appointee from Delaware; (2) Maryanne Trump Barry, a Clinton appointee from New Jersey; (3) Michael Chagares, a Bush Jr. appointee now working in New Jersey, although he has Pennsylvania roots.
Judge Roth has had election law cases involving minor parties in the past. She wrote the decision in Patriot Party of Allegheny County v Allegheny County Elections Department in 1996, ruling that if Pennsylvania lets the Democratic and Republican Parties jointly nominate candidates for partisan School Board races, the state must let minor parties also use fusion. The state was granted a rehearing en banc, but the en banc panel reaffirmed the original decision. The en banc opinion was released in 1999, and by then the case was re-named Reform Party of Allegheny County v Allegheny County Elections Department. Judge Roth wrote the 1999 decision as well as the 1996 decision. Judge Roth also wrote the opinion in Belitskus v Pizzingrilli, striking down Pennsylvania’s mandatory candidate filing fees.
However, in 2006, Judge Roth ruled against Pennsylvania’s minor parties in Rogers v Cortes, the lawsuit in which the Constitution, Green, and Libertarian Parties argued that since they had each polled enough votes in 2004 to meet the state’s definition of “political party” they should not be forced to submit 67,000 signatures for their statewide nominees. And she ruled against the Constitution Party again, in 2009, in Baldwin v Cortes. That case argued that Pennsylvania’s August 1 petition deadline was illegitimate because the legislature had never passed it. However, the 3rd circuit didn’t agree.
The other two judges in the current case have never had any cases involving ballot access. Judge Barry is somewhat well-known for being the sister of Donald Trump.
The current case challenges Pennsylvania’s system of putting minor party and independent candidates in jeopardy of paying over $100,000 in fees if they submit petitions that don’t have enough valid signatures. It also challenges the state’s refusal to tally the number of write-ins for most write-in candidates, even when those candidates have requested a tallly. And it challenges the law that says parties must submit large numbers of signatures for their nominees unless they have registration membership of 15% of the state total.
The Third Circuit discourages oral arguments in most cases, and will not hold an oral argument in this case.
