On March 22, the Third Circuit heard arguments in Constitution Party v Cortes, 16-3266. The issue is the constitutionality of the county distribution requirement for statewide minor party and independent candidate petitions, for state (as opposed to federal) office. The requirement was never passed by the Pennsylvania legislature, but was created by U.S. District Court Judge Lawrence Stengel last year.

The judges seemed to ponder whether to remand the case back to U.S. District Court, to get evidence on how burdensome the county distribution requirement is. But, the judges are also aware that any county distribution requirement does dilute the voting strength of residents of high-population counties. One of the judges seems to have done his own research, and he found that the nine most populous counties of Pennsylvania contain a majority of the population. Because the requirement requires signatures from ten counties (for gubernatorial candidates), theoretically a gubernatorial candidate with high support in those nine counties, but no support in the other counties, could be blocked from the ballot. Therefore, the requirement would be unconstitutional, because it discriminates against the voters in big-population counties.

One of the judges asked the attorney for the state whether there is any bill in the 2017 session of the legislature to regulate ballot access for minor party and independent candidates. The attorney for the state seemed reluctant to say that there is no such bill. She mentioned a 2016 bill, which did not pass, but the judges themselves had to then point out that the 2016 session of the legislature is over and only a bill in the 2017 session could possibly change the law for the 2018 election. Anyone can hear the 35-minute oral argument at this link.