Pugh v. BERKS COUNTY BOARD OF ELECTIONS
5:25-cv-03267
| E.D. Pa. | Sep 3, 2025Background
- Plaintiff Brandon Pugh, a Lyons Borough council member, ran a write-in campaign in the May 20, 2025 Republican primary for Lyons Borough Mayor and received five write-in votes (including his own), a plurality of votes cast.
- Under Pennsylvania Election Code § 1405 (25 Pa. Stat. § 3155) a candidate who did not file a nomination petition must receive at least as many write-in votes as the number of signatures required on a nomination petition for the office (ten for mayor) to be certified as the party nominee.
- Because Pugh received only five write-in votes (below the ten-vote threshold), the Berks County Board of Elections refused to certify him as the Republican nominee and left the general-election ballot position empty.
- Pugh sued the Board asserting § 1405 is unconstitutional as-applied under the First and Fourteenth Amendments and sought declaratory and injunctive relief to be listed as the nominee; Board moved to dismiss.
- The district court applied the Anderson-Burdick framework (guided by the Third Circuit’s Mazo decision), concluded § 1405 imposes only a minimal, nondiscriminatory burden and that the State’s interest in a minimum showing of support justifies the rule, and granted the Board’s motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper constitutional test | Strict scrutiny because write-ins implicate core political speech and party association | Anderson-Burdick applies; statute regulates electoral mechanics, not core speech | Anderson-Burdick applies (per Mazo criteria) |
| Severity of burden | § 1405 prevented Pugh and his voters from realizing primary victory, thus severely burdening First/14th rights | Burden is minimal and nondiscriminatory; alternatives exist (nomination petition) | Burden is minimal, not severe; strict scrutiny not triggered |
| Discrimination against write-in candidates | Requirement singles out write-in candidates and treats them less favorably than petition filers | Scheme as a whole treats candidates equally by requiring same level of demonstrated support via petition or primary votes | Not discriminatory when viewed in the ballot-access scheme as a whole |
| State interest justification | Ten-vote threshold produced an empty ballot despite Pugh receiving plurality — rule not narrowly tailored | State has important interest in ensuring candidates demonstrate a minimum level of support to preserve ballot integrity and efficiency | State’s interest is sufficient to justify the minimal burden; § 1405 is constitutional as applied |
Key Cases Cited
- Anderson v. Celebrezze, 460 U.S. 780 (U.S. 1983) (established balancing approach for election regulations)
- Burdick v. Takushi, 504 U.S. 428 (U.S. 1992) (refined sliding-scale test for burdens on ballot access and association)
- Mazo v. New Jersey Sec'y of State, 54 F.4th 124 (3d Cir. 2022) (framework to distinguish core political speech from electoral mechanics)
- Shankey v. Staisey, 257 A.2d 897 (Pa. 1969) (Pennsylvania view equating petition-signature and write-in vote thresholds)
- Eakin v. Adams Cnty. Bd. of Elections, 775 F. Supp. 3d 903 (W.D. Pa. 2025) (applied Anderson-Burdick to uphold similar write-in regulation)
- Belitskus v. Pizzingrilli, 343 F.3d 632 (3d Cir. 2003) (requirement of alternative ballot-access means to avoid severe burden on indigent candidates)
- Munro v. Socialist Workers Party, 479 U.S. 189 (U.S. 1986) (States may require preliminary showing of substantial support for ballot access)
- American Party of Texas v. White, 415 U.S. 767 (U.S. 1974) (ballot-access restrictions must leave meaningful, not merely theoretical, access)