Constitution Party of Pennsylv v. Pedro Cortes

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 16-3266

CONSTITUTION PARTY OF PENNSYLVANIA;
GREEN PARTY OF PENNSYLVANIA;
LIBERTARIAN PARTY OF PENNSYLVANIA;
JOE MURPHY; JAMES N. CLYMER; CARL J.
ROMANELLI;
THOMAS R. STEVENS; KEN KRAWCHUK,
Appellants

v.

*PEDRO A. CORTES; JONATHAN M. MARKS
* (Pursuant to Fed. R. App. P. 43(c))
________________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. Civil Action No. 5-12-cv-02726)
District Judge: Honorable Lawrence F. Stengel

Argued on March 22, 2017

Before: SMITH, Chief Judge, JORDAN and ROTH, Circuit
Judges
 (Opinion filed: December 13, 2017)

Oliver B. Hall, Esq. (Argued)
Center for Competitive Democracy
1835 16th Street N. W., Suite 5
Washington, DC 20009

Counsel for Appellants

Claudia M. Tesoro, Esq. (Argued)
Office of Attorney General of Pennsylvania
21 South 12th Street
Philadelphia, PA 19107

Counsel for Appellee

________________

OPINION
________________

ROTH, Circuit Judge

2
 Numerous individuals and groups, collectively known
as the “Aspiring Parties,” 1 filed suit to enjoin the application
of certain of Pennsylvania’s election laws, arguing that those
laws were unconstitutional as applied to them. They
prevailed. The District Court then entered a permanent
injunction, imposing county-based signature-gathering
requirements that the Aspiring Parties must meet in order to
appear on the ballot. The Aspiring Parties appeal once more,
arguing that those requirements are an unconstitutional vote
dilution scheme in violation of the Equal Protection Clause of
the U.S. Constitution. We conclude that the record is
inadequate to support the signature gathering requirements.
For that reason, we will vacate the injunction and remand.

I. Factual and Procedural Background

In 2012, the Aspiring Parties filed suit under 42 U.S.C.
§ 1983 against the Secretary of the Commonwealth of
Pennsylvania and the Commissioner of the Pennsylvania
Bureau of Commissions, Elections, and Legislation (the
Commonwealth) in their official capacities. The Aspiring
Parties claimed that certain of Pennsylvania’s election laws
violated their First and Fourteenth Amendment rights.

1
Specifically, the Aspiring Parties consist of: the Constitution
Party of Pennsylvania, the Green Party of Pennsylvania, and
the Libertarian Party of Pennsylvania; their respective chairs
Joe Murphy, Carl Romanelli, and Thomas Robert Stevens;
James Clymer, a member of the Constitution Party; and Ken
Krawchuk, a former Libertarian Party candidate for the U.S.
Senate.

3
 As we explained in greater detail in a prior opinion,
political organizations, which are not classified as “major
parties” under Pennsylvania law 2 and which wish to place
candidates on the ballot, need to gather a considerable
number of signatures; the validity of those signatures can be
challenged. 3 A successful challenge may, under certain
circumstances, result in an award of costs (which may be
considerable). 4 The threat of being required to pay these high
costs has deterred some candidates from running for office. 5

The Aspiring Parties’ suit sought to enjoin these
requirements. Initially, the case was dismissed for lack of
standing, but we reversed on appeal. 6 Next, the District Court
held that the statutes were, in combination, unconstitutional
as applied to the Aspiring Parties. 7 We affirmed and
remanded the case to the District Court. 8

On remand, the District Court requested that the
Aspiring Parties and the Commonwealth each submit
proposed orders which would remedy the constitutional

2
Currently, only the Republican and Democratic Parties
qualify as major parties.
3
Constitution Party of Pennsylvania v. Cortes, 824 F.3d 386,
390 (3d Cir. 2016).
4
Id. at 391.
5
Id. at 392.
6
See Constitution Party of Pennsylvania v. Aichele, 757 F.3d
347, 368 (3d Cir. 2014).
7
Constitution Party of Pennsylvania v. Cortes, 116 F. Supp.
3d 486, 507 (E.D. Pa. 2015).
8
Constitution Party of Pennsylvania v. Cortes, 824 F.3d 386,
399 (3d Cir. 2016)

4
violation. On June 17, 2016, the Aspiring Parties requested
an injunction, directing that “Defendant Pedro Cortes shall
place the nominees of Plaintiffs Constitution Party of
Pennsylvania, Green Party of Pennsylvania and Libertarian
Party of Pennsylvania on Pennsylvania’s November 8, 2016
general election ballot,” 9 or, in the alternative, that the
parties’ candidates shall be placed on the ballot if they submit
appropriate paperwork “on or before the August 1, 2016
deadline with valid signatures equal in number to the
requirements imposed upon major party candidates pursuant
to 25 P.S. § 2872.1 . . ..” 10

The Commonwealth responded by proposing, based on
a bill then pending before the Pennsylvania General
Assembly, 11 that the Aspiring Parties’ candidates be placed
on the ballot provided that they gather two and one-half times
as many signatures as major party candidates must gather. 12

9
App. 25.
10
App. 26.
11
See H.R. 342, 200th Gen. Assemb., § 2, Reg. Sess. (Pa.
2016). This bill has passed both houses of the Pennsylvania
General Assembly and was “Referred to Rules” on June 27,
2016. As of the date of this opinion, no further action had
been taken. See
http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.c
fm?txtType=PDF&sessYr=2015&sessInd=0&billBody=H&b
illTyp=B&billNbr=0342&pn=3618. Related legislation
amending the Pennsylvania Election Code was recently
introduced by the same Representative who had introduced
House Bill 342. See H.R. 444, 201st Gen. Assemb., Reg.
Sess. (Pa. 2017).
12
App. 29-30.

5
As for the county signature requirements, this bill provided
that, for the office of Governor, at least 5,000 signatures must
be gathered to include at least 250 from at least 10 counties.
(In Pennsylvania, there are the 67 counties). For other state-
wide offices, this bill required between 1,250 and 2,500
signatures with at least 250 from at least 5 counties. 13

Between June 21 and 28, 2016, the District Court held
five off-the-record status conferences. At those status
conferences, the Aspiring Parties suggested that the county-
based signature-gathering requirements in the
Commonwealth’s proposed order were unconstitutional vote

13
In this bill, the offices of President of the United States and
United States Senator required 5,000 signatures without a
county-based distribution requirement.

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dilution schemes in violation of the Fourteenth Amendment. 14
Both parties submitted letter briefs outlining their positions
on that issue.

On June 30, 2016, the District Court adopted the
Commonwealth’s proposed order. The District Court did not
find any facts, nor did it explain its decision. The Aspiring
Parties have appealed, arguing again that the county-based
signature-gathering requirements in the District Court’s order
are unconstitutional.

14
This position may seem to contradict the Aspiring Parties’
request that their candidates be placed on the ballot if they
submit papers with “signatures equal in number to the
requirements imposed upon major party candidates.” App.
26. At oral argument, counsel explained that the proposed
order was intended to require the Aspiring Parties to match
the total number of signatures required for major parties but
not the county-based distribution requirements. Oral Arg.
Recording at 4:42-5:07. The record does not reveal whether
the District Court initially interpreted the Aspiring Parties’
proposed order in this way. However, within a few days of
submission of the proposed orders, the District Court held
status conferences with the parties, and the Aspiring Parties
submitted a letter brief opposing the county-based signature-
gathering requirements. Thus, we believe there was no
waiver here; the District Court was informed of the Aspiring
Parties’ views within an appropriate amount of time.

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 II. Discussion 15

A. Standard of Review

Our review of the constitutionality of the District
Court’s injunction is plenary. 16

B. County-Based Signature Requirements

The question of the constitutionality of county-based
signature-gathering requirements has a long history. Over the
course of three opinions in the early 1960’s, the Supreme
Court articulated the principle of “one person, one vote”
contained in the Equal Protection Clause. 17 The essence of
this principle is that each voter’s vote must be counted
equally. Observing that the Fifteenth and Nineteenth

15
The District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
While conceding jurisdiction under § 1331, the Aspiring
Parties argue that the District Court did not have jurisdiction
to enter the injunction on appeal here because it reached
issues not properly before it. This argument lacks merit. The
District Court had found a constitutional violation and had
jurisdiction to fashion a remedy. See Consumer Party v.
Davis, 778 F.2d 140, 146 (3d Cir. 1985) (observing that a
district court has wide, although not infinite, discretion to
fashion a remedial injunction).
16
Ne. Women’s Ctr., Inc. v. McMonagle, 939 F.2d 57, 66 (3d
Cir. 1991).
17
Reynolds v. Sims, 377 U.S. 533 (1964); Gray v. Sanders,
372 U.S. 368 (1963); Baker v. Carr, 369 U.S. 186 (1962).

8
Amendments protect the rights of people of different races
and sexes to vote, the Supreme Court reasoned:

If a State in a statewide election weighted the
male vote more heavily than the female vote or
the white vote more heavily than the Negro
vote, none could successfully contend that that
discrimination was allowable. How then can
one person be given twice or 10 times the
voting power of another person in a statewide
election merely because he lives in a rural area
or because he lives in the smallest rural county?
Once the geographical unit for which a
representative is to be chosen is designated, all
who participate in the election are to have an
equal vote—whatever their race, whatever their
sex, whatever their occupation, whatever their
income, and wherever their home may be in that
geographical unit. This is required by the Equal
Protection Clause of the Fourteenth
18
Amendment.

Thereafter, in Moore v. Ogilvie, the Supreme Court
applied this principle to requirements that candidates who
wished to have their names placed on the ballot gather a
minimum number of signatures from a specified number of
counties in a state. 19 In Moore, Illinois required that a
candidate, who wished to appear on the ballot, gather
signatures from at least 25,000 qualified voters, including at
least 200 qualified voters from each of at least 50 counties in

18
Gray, 372 U.S. at 379 (citation omitted).
19
394 U.S. 814 (1969).

9
the state. 20 At the time, “93.4% of the State’s registered
voters reside[d] in the 49 most populous counties, and only
6.6% [were] resident in the remaining 53 counties.” 21
Because “the electorate in 49 of the counties which contain
93.4% of the registered voters [might] not form a new
political party and place its candidates on the ballot,” but
“25,000 of the remaining 6.6% of registered voters properly
distributed among the 53 remaining counties [might] form a
new party to elect candidates to office[,]” this requirement
“discriminate[d] against the residents of the populous
counties of the State in favor of rural sections” in violation of
the “one person, one vote” principle. 22

Subsequently, Anderson v. Celebrezze set out a process
for resolving constitutional challenges to state election laws. 23
Under Anderson, a court

must first consider the character and magnitude
of the asserted injury to the rights protected by
the First and Fourteenth Amendments that the
plaintiff seeks to vindicate. It then must
identify and evaluate the precise interests put
forward by the State as justifications for the

20
Id. at 815.
21
Id. at 816.
22
Id. at 819. While the requirements at issue involved
gathering signatures of voters rather than casting votes, the
Court held that “[a]ll procedures used by a State as an integral
part of the election process must pass muster against the
charges of discrimination or of abridgment of the right to
vote.” Id. at 818.
23
460 U.S. 780 (1983).

10
 burden imposed by its rule. In passing
judgment, the Court must not only determine
the legitimacy and strength of each of those
interests; it also must consider the extent to
which those interests make it necessary to
burden the plaintiff’s rights. Only after
weighing all these factors is the reviewing court
in a position to decide whether the challenged
provision is unconstitutional. 24

While Anderson specifically involved the right to free
association under the First Amendment, this Court has
applied the Anderson analysis to Equal Protection challenges
as well. 25

Both before and after Anderson, county-based
signature-gathering requirements have fared poorly in the
courts. At least three different circuit courts, seven district
courts, and one state supreme court have all held in reported
decisions that a state’s county-based signature-gathering

24
Id. at 789.
25
Belitskus v. Pizzingrilli, 343 F.3d 632, 643 (3d Cir. 2003);
accord Blomquist v. Thomson, 739 F.2d 525, 527 (10th Cir.
1984).

11
requirements were unconstitutional. 26 The essential difficulty
that a state faces in justifying a county-based signature-

26
See Am. Civil Liberties Union of Nevada v. Lomax, 471
F.3d 1010, 1012, 1020 (9th Cir. 2006) (striking down a
requirement of signatures from 10% of voters in 13 of
Nevada’s 17 counties); Idaho Coal. United for Bears v.
Cenarrusa, 342 F.3d 1073, 1075 & n.3, 1077 (9th Cir. 2003)
(6% of voters in 22 of Idaho’s 44 counties); Blomquist v.
Thomson, 739 F.2d 525, 528 (10th Cir. 1984) (8,000 voters
from 2 of Wyoming’s 23 counties); Communist Party of
Illinois v. State Bd. of Elections for State of Ill., 518 F.2d 517,
518, 521 (7th Cir. 1975) (25,000 voters, of which not more
than 13,000 could be from any one of Illinois’s 102 counties);
Montana Pub. Interest Research Grp. v. Johnson, 361 F.
Supp. 2d 1222, 1224-25, 1229-30 (D. Mont. 2005) (5% of
voters in at least half of Montana’s 56 counties); Libertarian
Party of Nebraska v. Beermann, 598 F. Supp. 57, 60 (D. Neb.
1984) (1% of voters in 19 of Nebraska’s 93 counties);
McCarthy v. Garrahy, 460 F. Supp. 1042, 1050 (D.R.I. 1978)
(25 signatures in 5 of Rhode Island’s 5 counties); Baird v.
Davoren, 346 F. Supp. 515, 522 (D. Mass. 1972) (3% of
voters in the last gubernatorial election, of which no more
than one-third from one of Massachusetts’s 14 counties);
Socialist Labor Party v. Rhodes, 318 F. Supp. 1262, 1272
(S.D. Ohio 1970) (200 voters from 30 of Ohio’s 88 counties),
aff’d sub nom. Sweetenham v. Gilligan, 409 U.S. 942 (1972);
Socialist Workers Party v. Rockefeller, 314 F. Supp. 984,
989-991 (S.D.N.Y.) (50 voters from 62 of New York’s 62
counties), aff’d, 400 U.S. 806 (1970); Socialist Workers Party
v. Hare, 304 F. Supp. 534, 535-36 (E.D. Mich. 1969) (100
voters from 10 of Michigan’s 83 counties); Gallivan v.

12
gathering requirement under Moore and Anderson is that, in
the final step of Anderson—“consider[ing] the extent to
which [the state’s asserted] interests make it necessary to
burden the plaintiff’s rights” 27—alternatives to county-based
requirements are readily available. Typically, the state’s
justification for county-based signature-gathering
requirements is to keep frivolous candidates off the ballot by
requiring that a candidate show some support across a
significant portion of the state. 28 However, signature-
gathering requirements based on geographical units other than
counties may serve that interest just as well. For example,
congressional districts must have populations that are “as
nearly as practicable” equal in population; 29 thus, requiring a
minimum number of signatures to be gathered from different
congressional districts serves the interest of requiring
candidates to show support across different geographical
areas but does not dilute anyone’s voting power. 30 Hence, it

Walker, 54 P.3d 1069, 1095-96 (Utah 2002) (10% of voters
from 20 of Utah’s 29 counties).
27
Anderson, 460 U.S. at 789.
28
See, e.g., Moore, 394 U.S. at 818 (considering the argument
that “this law was designed to require statewide support for
launching a new political party rather than support from a few
localities”).
29
Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969).
30
Numerous courts have approved of such an approach. See,
e.g., Angle v. Miller, 673 F.3d 1122, 1129 (9th Cir. 2012);
Libertarian Party v. Bond, 764 F.2d 538, 544 (8th Cir. 1985);
Libertarian Party of Virginia v. Davis, 766 F.2d 865, 868 (4th
Cir. 1985) (abrogated on other grounds as recognized in Lux
v. Judd, 651 F.3d 396 (4th Cir. 2011)).

13
is rarely, if ever, necessary to impose county-based signature-
gathering requirements that significantly burden voting rights.

However, not all county-based signature-gathering
requirements are sufficiently stringent to cause constitutional
concern. As courts, beginning with a district court in Zautra
v. Miller, have held, county-based signature-gathering
requirements are constitutional when such requirements have
no “real or appreciable impact upon the franchise . . ..” 31 In
Zautra, Utah required that “new political associations . . .
secure the signatures of 500 registered voters, including at
least ten signatures of registered voters from each of ten
counties, in order to qualify as a political party with the
accompanying right to place candidates on the ballot.” 32
Crucial to the finding that there was no appreciable impact
was the fact that the number of signatures required from each
county was only ten. Ten signatures from ten counties was
small by any measure; for example, the district court
observed that one hundred geographically distributed
signatures in Utah amounted to only about one-ninth as many
signatures per one million population as did the comparable
requirement in Moore. 33 The ten-county requirement was
also a lesser burden than the comparable requirement in
Moore, and fulfilling the county-based signature-gathering
requirement was not the only way to place a candidate’s name
on the ballot in Utah (although it had been in Illinois in
Moore). 34 Because of these considerations, Zautra held that
the requirement was constitutional because it exerted no

31
348 F. Supp. 847, 850 (D. Utah 1972).
32
Id. at 848.
33
Id. at 849 & n.3.
34
Id. at 849-50.

14
appreciable impact on the franchise. While Zautra was
decided before Anderson, it is consistent with the Anderson
analysis: If there is no appreciable impact on the franchise,
then there is no injury to constitutional rights that the court
must balance against a state’s interests. The state’s interests
simply prevail.

Zautra illustrates the importance of considering the
real-world impact of voting rights restrictions. This Court has
also emphasized this point, noting that under Anderson,

the rigorousness of our inquiry into the
propriety of a state election law depends upon
the extent to which a challenged regulation
burdens First and Fourteenth Amendment
rights. When those rights are subjected to
severe restrictions, the regulation must be
narrowly drawn to advance a state interest of
compelling importance. However, when a state
election law provision imposes only reasonable,
nondiscriminatory restrictions upon the First
and Fourteenth Amendment rights of voters, the
State’s important regulatory interests are
generally sufficient to justify the restrictions. 35

Because this inquiry is concerned with the extent to
which a challenged regulation actually burdens constitutional
rights, this inquiry is “fact intensive.” 36 It requires on-the-

35
Belitskus, 343 F.3d at 643 (internal quotation marks,
brackets, and citations omitted).
36
Patriot Party of Allegheny Cty. v. Allegheny Cty. Dep’t of
Elections, 95 F.3d 253, 258 (3d Cir. 1996).

15
record analysis of the facts pertaining to the particular
restriction under scrutiny. Such facts include the number of
counties in the state at issue, the distribution of voters
throughout those counties, and any other indications of the
magnitude of vote dilution that will take place under the
challenged restriction. A requirement that allows a minority
of the population to thwart the majority’s will, as did the
requirement in Moore, 37 certainly has an appreciable impact,
but even lesser requirements may have an appreciable impact
depending on the factual circumstances surrounding the
requirements.

C. The District Court’s Injunction

Under these standards, the District Court’s order must
be vacated. We recognize that the District Court was working
under significant time pressure; this Court issued its
affirmance in June 2016 when the campaign season had
already begun. As a result, the District Court needed to work
as quickly as possible in order to provide fair relief to the
parties. Nonetheless, the District Court did not make any
factual findings or provide any explanation on the record of
the factors it considered in determining that its injunction was
appropriate. Because resolving vote dilution challenges is a
fact intensive process and because county-based signature-
gathering requirements have been held to be constitutional
only when they have been shown to have no appreciable

37
If the 6.6% of the registered voters who lived in the least-
populous counties in Illinois withheld their signatures, they
could block candidates from being placed on the ballot. See
Moore, 394 U.S. at 819.

16
impact on the franchise, the lack of fact-finding requires that
we vacate the District Court’s order.

The District Court may determine to enter the same
order again—or to issue another injunction containing
county-based signature-gathering requirements. However,
the court must first conclude, after considering the factors and
finding facts, that the restrictions are constitutional under
Anderson. Given the justification for these requirements that
the Commonwealth has presented, 38 the District Court can
impose the county-based signature-gathering requirements if
it concludes that the requirements would have no appreciable
impact on voting rights. 39 The court did not so conclude here,
and we have no basis in the record to reach such a conclusion
independently.

38
The Commonwealth has suggested in its brief that the
county-based signature-gathering requirements are necessary
for a minor party to show “some modicum of support” before
a minor party candidate can be placed on the ballot.
39
The Commonwealth observes that Pennsylvania state
courts, citing Zautra, have held that the county-based
signature-gathering requirements for major-party candidates
are constitutional because they have no appreciable impact on
the franchise. See Petition of Berg, 713 A.2d 1106, 1109 (Pa.
1998); Cavanaugh v. Schaeffer, 444 A.2d 1308, 1311-12 (Pa.
Commw. Ct. 1982). While the Commonwealth is correct that
the state courts have so held, the requirements here involve
two and one-half times as many signatures. Thus, even if the
impact of the lesser requirements for major-party candidates
is negligible—an issue not before this Court and one about
which we express no opinion—the greater requirements here
still must be analyzed separately.

17
 III. Conclusion

For the foregoing reasons, we will vacate the District
Court’s judgment and remand for further proceedings
consistent with this opinion.

18