On December 6, the Pennsylvania Attorney General filed this 34-page brief in the 3rd circuit in Constitution Party of Pennsylvania v Cortes.  The brief is unusual because it puts all its arguments about the substance of the case in various footnotes.  The text itself is confined solely to arguing that the plaintiffs (the Constitution, Green and Libertarian Parties) lack standing and that their complaints are not ripe.

The brief does concede, on page 12, that “county election officials are required to compute and certify votes cast for write-in candidates.”  On page 29, in footnote 20, the brief says if write-ins are not being counted in some counties, plaintiffs should sue those counties, not the state.  However, it is the state that has the responsibility to tally up the write-in votes for candidates in statewide races.  For example, in November 2008, many counties counted the write-ins for Cynthia McKinney, but the State refused to tally them up.  When a state refuses to tally up the write-ins, the various publications, both governmental and private, will not include those write-ins in their compilations because they aren’t “official”.  Only a state can make a vote total “official.”  So, the publications of Congressional Quarterly, the Clerk of the U.S. House of Representative, and the Federal Election Commission, all reported “zero” votes for Cynthia McKinney in 2008 from Pennsylvania.

The brief does not even mention the part of the lawsuit that challenges the 15% registration membership requirement, before a party can automatically place its nominees on the November ballot without petitions, except that footnote 13 on page 19 says the parties can’t complain about this because this issue was dealt with in a 2006 case called Rogers v Cortes.  This assertion is not true.

The brief does not rebut the plaintiffs’ assertion that a system which requires independent candidates and minor parties to run the risk of paying costs of up to $110,000 if their petitions do not have enough valid signatures is unconstitutional, except in footnote 15 on page 23.  That footnote just says the principles of the filing fee cases do not apply because costs are different than filing fees.  That footnote does not mention the U.S. Supreme Court precedents against poll taxes.

The brief’s assertion that the complaint is not ripe is rebutted by the fact that all the statewide minor party petitions submitted in 2010 were withdrawn after the challengers threatened the parties that they risked fees of up to $110,000 if their petitions turned out not to have enough valid signatures.  The brief does not acknowledge anything that happened in 2010.