Pa.’s Ballot Access Rules Unfair to Third Parties

     PHILADELPHIA (CN) — The Third Circuit affirmed a district court ruling invalidating Pennsylvania’s ballot access rules, a decision that will make it easier for third-party candidates to appear on the state’s general election ballot in November.
     The ruling stems from a lawsuit filed against the Commonwealth in May 2012 by three independent political parties, their respective chairmen, and a former Libertarian Party candidate for the U.S. Senate.
     They argued that a confluence of rules governing how an independent candidate can qualify to appear on the Pennsylvania ballot and the potentially exorbitant court costs they face to defend the validity of candidate petition signatures is unconstitutionally burdensome.
     Last year, a federal judge in Philadelphia invalidated the state’s ballot-qualification process.
     U.S. District Judge Lawrence Stengel held the state’s election rules governing third-party ballot access were unconstitutional because they required both high numbers of petition signatures and carried the threat of high legal costs if a third-party candidate’s nominating signatures were found to be invalid.
     The state appealed, but in doing so it didn’t challenge the substance of the decision.
     Instead, it argued the decision should be overturned because the plaintiffs sued the wrong parties, and secondarily because the district court’s order was “incoherent on its face,” and therefore of no practical benefit.
     On Thursday, the Third Circuit upheld the federal judge’s ruling in a decision that opens the path for third parties such as the Constitution Party, Green Party, and Libertarian Party to gain greater exposure on the ballots.
     To receive public funding in a general election in Pennsylvania, a candidate must belong to an official political party. Pennsylvania state code classifies “political parties” as those organizations that have had a candidate receive at least two percent of the vote in a general election both statewide and in at least ten counties.
     The language, as is often the case in election law, is arcane. The two percent requirement is based not on total votes cast in a general election, but rather on the vote total garnered by the prevailing candidate in that contest.
     Parties that receive less than 15 percent of that total are classified as “minor parties.”
     Pennsylvania, which is often considered a “battleground state” in presidential elections, categorizes only the Democratic and Republican parties as “major parties.”
     Until recently, minor political parties in the state had to conduct large signature-gathering campaigns of typically more than 20,000 names to have their nominees listed on general election ballots. The state would then scrutinize the party’s forms and others could object to the party’s presence on ballots.
     Further, third-party candidates that were removed from the state’s general election ballot could be liable for costs.
     In 2004, Green Party presidential candidate Ralph Nader was ordered to pay more than $81,000 after allegations of fraud in his signature-gathering campaign. Fellow Green Party candidate Carl Romanelli, a plaintiff in this case, also was ordered to pay $80,000 in fines after the state found his party failed to comply with court orders.
     Those fines had a chilling effect. After years of few third-party candidacies in the state, the Constitution Party, Green Party, and Libertarian Party filed a joint lawsuit in 2012 challenging the rules, arguing state rules imposed an unconstitutional “ballot-access fee” and that the “substantial financial burdens” of defending candidates from state inquiries had stymied aspiring third-party candidates.
     The lawsuit named as defendants Pennsylvania Secretary Pedro Cortes and state Elections Commissioner Jonathan Marks.
     Judge Stengel found that as applied the state’s impositions of fees combined with the high signature requirement were unconstitutional, particularly against smaller third-party candidates.
     
     On appeal, Pennsylvania argued that even if the signature and fee requirements were together unconstitutional, they should be allowed. The state also took issue with the federal court order declaring the election requirements constitutional on their face but constitutional as applied.
     The state also attempted to toss the lawsuit by claiming Cortes and Marks were not actually the ones shutting down third-party candidates; that it was the Commonwealth Court, spurred on by individual challengers, who would be hurting third-party candidates.
     The Third Circuit found that “[t]he argument that the two officials sued here have no connection to these election code provisions is, to say the least, off the mark,” wrote Judge D. Brooks Smith in the 31-page opinion, noting that Pennsylvania’s own government website notes that Marks oversees the administration of elections and the implementation of state election code.
     
     The court left open the door for Pennsylvania to keep one or both rules, just not both. “Our holding, of course, does not prevent the legislature from amending its election code to create new, constitutional provisions that regulate access to the general election ballot,” Smith wrote. “Nor do we express any view as to whether the Commonwealth could choose to enforce only one or the other provision.”
     All three political parties have complained about Pennsylvania’s system in recent years, claiming that elections officials and members of the two major political parties have threatened legal challenges to petitions.
     Oliver Hall, who founded the Center for Competitive Democracy and was the lead attorney representing the three political parties, said the decision was “long overdue” as Pennsylvania is the only state remaining that still attempts to impose costs to validate third-party candidates.
     “The court in this case recognizes this statutory scheme harmed voters’ rights because it forced them to choose between only one Republican and one Democratic candidate for the better part of a decade,” Hall said in an interview.
     Others in the state have attempted to reform the election system. A state bill proposed in recent years would reduce the number of votes needed for a third-party candidate to get general election ballot access to five one-hundredths of one percent of the total number of registered voters. The bill currently remains in committee.