Rogers v. CorbettRogers v. Corbett
Plaintiffs, a group of minor political parties and minor party nominees for state-wide office,1 challenged the constitutionality of Section 2911 of the Pennsylvania election code,
I. Background
Under Pennsylvania law, a political body is qualified as a political party when one of its candidates obtains a 2% level of support in the preceding general election. Specifically,
Any party or political body, one of whose candidates at the general election next preceding the primary polled in each of at least ten counties of the State not less than two per centum of the largest entire vote cast in each of said counties for any elеcted candidate, and polled a total vote in the State equal to at least two per centum of the largest entire vote cast in the State for any elected candidate, is hereby declared to be a political party within the State.
Pennsylvania law further distinguishes between political parties (a/k/a/ major political parties) and minor political parties. Minor political parties are political parties with registered membership of less than 15% of the state-wide registration for all political parties.2
Minor pоlitical parties, as well as political bodies not recognized as parties, place their candidates, and independent candidates place their names, on the general election ballot by nomination petitions.
Candidates have approximately five months to circulate nomination petitions. For the November 2006 general election, petitions can be circulated from March 8, 2006, until August 1, 2006. A signatory must be a qualified elector of Pennsylvania who has registered to vote either on or before the day he signs the nomination petition. A signatory need not be a member of a political party. A signatory may sign a minor party candidate‘s nomination petition even if he has signed a nomination petition in support of a Republican or Democrat or voted in a major party primary, but a signatory may sign a nomination petition in support of only one candidate for each office for which there is a vacancy.
Unfortunately for minor political parties, political bodies and independent candidates, Bob Casey, Jr., soundly defeated his challenger for State Treasurer in 2004 in the biggest voter turnout in Pennsylvania history. Consequently, the “largest entire vote cast for any elected candidate in the State at large” is larger this cycle than in previous election years, based on Casey‘s high total. As such, 2% of that total, the number of required signatures, is 67,070, compared to previous years in which the number generally ranged between 30,000 and 50,000.4
Plaintiffs are challenging the constitutionality, as applied to minor political parties, of the 2% variable threshold requirement of
The parties jоintly stipulated to the applicable facts. On April 5, 2006, the District Court denied the plaintiffs’ motion for a preliminary injunction on the ground that
II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to
Ordinarily, we use a three-part standard to review a District Court‘s decision to grant or deny a preliminary injunction. Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir.2004). The District Court‘s findings of fact are reviewed for clear error, the District Court‘s conclusions of law are evaluated under a plenary standard, and the ultimate decision to grant the preliminary injunction is reviewed for abuse of discretion.5 Id.
“The test for preliminary relief is a familiar one. A party seeking a preliminary injunction must show that (1) it has a likelihood of success on the merits, (2) it will suffer irreparable harm if the injunction is denied, (3) granting preliminary relief will not result in even greater harm to the nonmoving party, and (4) the public interest favors such relief.” Id. (quoting Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir.2004)). Generally, a panel entertaining a preliminary injunction appeal decides only whether the district court abused its discretion in ruling on the request for relief and does not go into the merits any further than necessary to determine whether the moving party established a likelihood of success. Id. Here, however, we are not required to take this narrow approach because the appeal from
III. Discussion
A. The District Court‘s Decision
In denying plaintiffs’ request for a preliminary injunction, the District Court found that
In addition, the District Court dismissed the plaintiffs’ equal protection claim that the plaintiffs had based on the difference in treatment between minor political parties and “major,” i.e., Republican and Democrat, political parties. The District Court noted that, in Jenness, the Supreme Court held that there are legitimate reasons for states to treat minor and major party candidates differently. 403 U.S. at 441-42, 91 S.Ct. 1970. Furthermore, the District Court opined that Pennsylvania law actually treats major party candidates more harshly than their minor party colleagues by requiring major party candidates to poll a plurality of their party‘s votes to be placed on the general election ballot, which in all likelihood is a higher absolute number than the 2% signature requirement for minor party candidates. For these reasons, the District Court denied the plaintiffs’ motion for a preliminary injunction.
B. Anderson and the Levels of Scrutiny
At oral argument before us, the parties were questioned about the applicable level of scrutiny and whether Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), annuls, or otherwise changes, the familiar strict scrutiny, intermediate scrutiny, and rational basis classifications as applied to ballot access cases. First, we note that this Court, as well as others, has been unclear whether the Anderson balancing test applies to ballot access claims brought under the Equal Protection Clause, given that Anderson is a First Amendment case. See Belitskus v. Pizzingrilli, 343 F.3d 632, 643 n. 8 (3d Cir.2003). We clarify here that the Anderson test is the proper method for analyzing such equal protection claims due to their relationship to the associational rights found in the First Amendment. In Belitskus, we observed that we could not “see any basis for refusing to so apply (Anderson).” Id.; see also Reform Party of Allegheny Co. v. Allegheny Co. Dep‘t. of Elections, 174 F.3d 305, 314 (3d Cir.1999) (assuming that “burdens require the same level of scrutiny in an equal protection analysis that they do in an аssociational rights analysis.“). Likewise, our sister Circuits have applied Anderson to similar claims under the Equal Protection Clause. See, e.g., Fulani v. Krivanek, 973 F.2d 1539, 1542-44 (11th Cir.1992); Republican Party of Arkansas v. Faulkner Co., 49 F.3d 1289, 1293 n. 2 (8th Cir.1995) (“In election cases, equal protection challenges essentially constitute a branch of the associational rights tree.“). As such, we conclude that Anderson sets out the proper method for balancing both associational and equal protection concerns and the burdens that the challenged law creates on these protections as weighed against the proffered state interests.
What then is the import of Anderson on the traditional three tiers of scrutiny? Although we appreciate that the strict scrutiny, intermediatе scrutiny, and rational basis categories represent a convenient and familiar linguistic device by which courts, including our Court,6 have characterized their review under Anderson, we note that Anderson promulgated a less categorical system of classification. See Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (noting that the full Court agreed in Anderson that “a more flexible standard applies.“). Put another way, ballot access cases should not be pegged into the three aforementioned categories. Rather, following Anderson, our scrutiny is a weighing process: We consider what burden is placed on the rights which plaintiffs seek to assert and then we balance that burden against the precise interests identified by the state and the extent to which these interests require that plaintiffs’ rights be burdened. Only after weighing thesе factors can we decide whether the challenged statute is unconstitutional. Anderson, 460 U.S. at 789, 103 S.Ct. 1564. Consequently, we will look at the nature of the rights involved here and the burdens imposed by Pennsylvania election law on minor political parties in order to determine if the burden is justified.
C. Equal Protection
Ballot access is recognized as an important aspect of voting rights. See Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (“laws that affect candidates always have at least some theoretical, correlative effect on voters“). Nevertheless, using the pre-Anderson standard, “not every limitation or incidental burden on the exercise of voting rights is subject to a stringеnt standard of review.” Id. (citing McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969)). We interpret this standard to mean post-Anderson that the right to ballot access, although important in both First Amendment and Equal Protection contexts, may be limited in accord with appropriate state interests, and that limitations imposed in furtherance of such interests need not be the most narrowly drawn as long as they are nondiscriminatory and reasonable in light of the relevant burdens. See Anderson, 460 U.S. at 788, 103 S.Ct. 1564 (“[T]he state‘s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.“).
The state interests here are avoiding ballot clutter and ensuring viable candidates. These interests have long bеen recognized as valid ones. See Jenness, 403 U.S. at 442, 91 S.Ct. 1970. The burden is the 2% signature requirement. This burden is not unreasonable. In light of the more obtrusive law upheld in Jenness, “it is beyond dispute that Pennsylvania‘s 2% (signature) requirement (for ballot access) is facially valid.” The Patriot Party of Pa. v. Mitchell, 826 F.Supp. 926, 939 (E.D.Pa. 1993); Perry v. Grant, 775 F.Supp. 821, 826 (M.D.Pa.1991) (“Two percent is not an inherently unreasonable or unduly burdensome signature requirement.“). Indeed, plaintiffs do not seriously contest the facial validity of the state‘s proffered legitimate interest — reducing ballot clutter and ensuring viable candidates. See generally Munro v. Socialist Workers Party, 479 U.S. 189, 195, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986) (noting that states do not have to prove actual ballot overcrowding). Furthermore, in Storer the Supreme Court noted that “gathering 325,000 signatures in 24 days would not appear to be an impossible burden.” 415 U.S. at 740, 94 S.Ct. 1274. Here, the burden on minor parties is significantly less, both in terms of the number of signatures and the time allowed to obtain them. Also, the fluctuations in the total do not present constitutional issues. Perry, 775 F.Supp. at 827-28 (“the fact that the total number of signatures required fluctuates with election results does not render it unconstitutional.“).
Given that courts have held that signature requirements at a percentage rate even greater than the number involved here are reasonable, and in view of the acknowledged state‘s interest in imposing this burden, we conclude that
This conclusion, however, is not the end of the analysis. See The Patriot Party of Pa., 826 F.Supp. at 939 (noting that “the Supreme Court has on two separate occasions invalidated facially valid ballot access laws because of their application to a political party.“). In this regard, plaintiffs contend that the 2% level of support that minor political parties must have previously demonstrated to be labeled a political party pursuant to
Although plaintiffs point to the distinction in ballot access between the major political parties, which place their candi
Moreover, the two-tiered nature of the minor political party process is consistent with, albeit different from, the two-tiered process for major political parties. Going back to the Anderson methodology, we conclude that the “two-tiered” nature of the law does not constitute an unacceptablе burden.
Plaintiffs contend, however, that their showing of support to qualify as a political party is the sufficient “modicum of support” to be placed on the general election ballot. But in employing the “modicum” language in Jenness, the Supreme Court did not state that any showing of a modicum of support was sufficient to allay the state‘s legitimate concerns vis-a-vis ballot clutter. Rather, the Court stated that:
There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization‘s candidate оn the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.
403 U. S. at 442. Here, the state‘s chosen “modicum of support” for political entities with less than 15% of the combined state-wide registration is the two percent signature threshold found in
Moreover, the fact that only New Mexico has a similar “two-tiered” system does not inflate the burden on the plaintiffs here, nor does it call into question the legitimacy of Pennsylvania‘s рroffered interests. See generally Perry, 775 F.Supp. at 827 (arguing that “[i]t is not the courts’ function to weigh the procedure chosen by the state legislature against the feasibility of less burdensome alternatives it could have chosen.“). There are analogous obligations to demonstrate continuing voter support in the retention requirements found in other states. Our sister Circuits have upheld such retention requirements, which require a party to collect signatures to gain a place on the ballot and then invalidate a party‘s ballot-qualified status for the next election if the party‘s candidate does not receive a certain percentage of the vote, even though the party had shown an initial modicum of support. See, e.g., McLaughlin v. North Carolina Bd. of Elections, 65 F.3d 1215, 1221 (4th Cir.1995), cert. denied, 517 U.S. 1104, 116 S.Ct. 1320, 134 L.Ed.2d 472 (1996); Rainbow Coalition v. Oklahoma State Election Bd., 844 F.2d 740, 741-42 (10th Cir.1988).
In addition, the lapse of time between reaching the 2% threshold in the previous election and having to obtain petition signers for the next election does not result in an unacceptably close measurement of the same indicia of support as was the case with the two-tier system in Maryland.9 A minor political party could have polled well in the previous election, based on a relatively well-known candidate, thus meeting the requirements of
As such, the District Court did not err in holding that the minimal burdens on minor political parties was justified by Pennsylvania‘s interest in preventing ballot clutter and ensuring viable candidates. After weighing the rights affected, the interests involved, and the extent to which these interests require the rights to be burdened, see Anderson, 460 U.S. at 789, 103 S.Ct. 1564, we conclude that the plaintiffs have not demonstrated that the method chosen by the state to accomplish these interests violаtes the plaintiffs’ rights to the equal protection of the laws.
D. Freedom of Association
Next, plaintiffs argue that under the reasoning of the Supreme Court in California Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000),
Jones, however, is not applicable to a ballot access case, like the present one, in which internal party deliberations on the choice of party candidates are not implicated. Unlike the law at issue in Jones, Pennsylvania election law does not open the intra-party deliberations of minor political parties to persons who are unaffiliated with the party. “Forced” association caused by
In addition, the Supreme Court‘s fusion law jurisprudence supports the distinction between intra-party deliberations and ballot access, with the former enjoying a higher degree of constitutional protection. For example, in Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), the Supreme Court upheld a Minnesota law that prevented a candidate from being nominated by more than one party, i.e. an anti-fusion law. In distinguishing the case from Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), overturning Connecticut‘s primary election statute which was in opposition to the rules of the Republican party, the Supreme Court noted that Tashjian “involved (the) regulation of political parties’ internal affairs and core associational activities, Minnesota‘s fusion ban does not.” Timmons, 520 U.S. at 359-60, 117 S.Ct. 1364. Here, Pennsylvania‘s 2% requirement regulates neither the minor political parties’ internal affairs nor its core associational activities. Thus, we agree with the District Court‘s ultimate conclusion that associational rights are not violated by
IV. Conclusion
For the reasons discussed above, we will affirm the District Court‘s denial оf the plaintiffs’ motion for a preliminary injunction. In addition, we will “affirm” the suggestion of the District Court that the Pennsylvania General Assembly “consider enactments that will simultaneously meet the identified state interests but also allow for a less ponderous means of ballot access for minor political parties in Pennsylvania.”
ORDER
The petition for panel rehearing filed by appellants in the above-entitled case having been submitted to the judges who par
Notes
political party ... whose State-wide registration is less than fifteen per centum of the combined State-wide registration for all State-wide political parties as of the close of the registration period immediately preceding the most recent November election.
Where the nomination is for any office to be filled by the electors of the State at large, the number of qualified electors of the State signing such nomination paper shall be at least equal to two per centum of the largest entire vote cast for any elected сandidate in the State at large at the last preceding election at which State-wide candidates were voted for.
Accordingly, we do not consider how the state‘s use of voter registration to define major and minor political parties might affect our scrutiny of the state‘s electoral laws, although we note that the Supreme Court in Anderson required that a state‘s ballot access restrictions be both reasonable and nondiscriminatory. See 460 U.S. at 788, 103 S.Ct. 1564; see also id. at 793, 103 S.Ct. 1564 (“Our ballot access cases ... focus on the degree to which the challenged restrictions to exclude certain classes of candidates from the electoral process.“) (quoting Clements v. Fashing, 457 U.S. 957, 964, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)).