On May 6, the U.S. Court of Appeals, 3rd circuit, rejected a case filed in 2008 by Chuck Baldwin, presidential nominee of the Constitution Party that year. Here is the 8-page decision in Baldwin v Cortes, 09-2227.
The Pennsylvania election code says that minor party and independent candidate petitions are due in early May in presidential election years. However, the state does not enforce this deadline. The Libertarian Party and the Communist Party had both sued Pennsylvania in 1984, arguing that the petition deadline is unconstitutional. The state felt it could not defend the May deadline, so it signed a consent decree promising to accept petitions until August 1. But, in all those 26 years, the legislature has never amended the election code to put the August 1 deadline in the law.
In 2008, a U.S. District Court in Ohio ordered the Secretary of State to put the Libertarian Party, and the Socialist Party, on the ballot with no petition. The basis was that Article II of the U.S. Constitution says only state legislatures (not “states”) can write election laws for presidential elections. Because Ohio’s ballot access law had been held unconstitutional in 2006, and the legislature had not replaced it, the Secretary of State had drafted emergency regulations cutting the number of signatures in half. The court in Ohio said only legislatures can write ballot access restrictions, and left Ohio with no petition requirement for new parties. So, in 2008, when the Constitution Party didn’t finish its Pennsylvania petition until August 26, and the state rejected its petition for being late, the party filed a lawsuit, hoping to use the Ohio precedent to avoid being subject to the August 1 deadline.
The 3rd circuit says, “Unlike the Ohio Secretary of State in Brunner, here the Secretary of the Commonwealth promulgated no new rule. Instead, the Secretary merely enforced a rule that had been in place by court-approved consent decree since 1984.” The 3rd circuit decision does not actually say whether it agrees with the theory used in Ohio.
Weak opinion, in my view. A delegation of power to administer election laws does not carry with it the power to legislate. In any event, that is what the court in Brunner said. The only difference between the two cases is the consent decree, which carries with it a judicial (as opposed to executive) flavor. There is authority out of Colorado (People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003))for the proposition that state courts can correct election laws for federal elections. But here the consent decree was entered by two federal courts. One can argue that the full brunt of authority under these circumstances must fall on Pennsylvania’s Secretary. (I admit it gets a little tricky here.)
The question, then, is whether the Secretary has been delegated this authority and, if so, whether it is consistent with Article II of the United States Constitution. The 3rd Circuit briskly ignores all of this.
The 3rd Circuit also incorrectly notes that the Secretary was just doing the plaintiffs a favor by extending the deadline. We ran into the same argument in the 5th Circuit in Libertarian Party v. Dardenne. The courts just have to have a deadline. If not the one administratively put in place, then it must be the earlier legislative deadline. So why complain? This ignores the possibility that the legislative deadline was illegal or unenforceable. It could be, as we argued in Dardenne and was argued here in Cortes, that no lawful deadline exists. Contrary to the 3rd Circuit’s spin on the case, this is hardly unusual. It simply forces the federal court to determine whether the party has enough support to justify ballot access. The court does not have to look for a deadline.
The only good news is that this opinion is not for publication.
The Pennsylvania Legislature has not amended the election Code to incorporate a number of court rulings, particularly federal court rulings. Petition challenges are heard in Commonwealth Court and the Commonwealth Court selectively enforces state court rulings and proudly ignores any federal court ruling which did not come directly from the US Supreme Court. But then, Commonwealth Court Judges are elected in partisan elections and as one Commonwealth court judge stated, the state has the duty to protect the two-party system.