Hardship for Minor Parties in PA Struck Down

     PHILADELPHIA (CN) – Minor political parties can challenge Pennsylvania rules that require them to shoulder the costs when major parties challenge their ballot petitions, the 3rd Circuit ruled.
     “It would be a sad irony indeed if the state that prides itself on being the cradle of American liberty had unlawfully restrictive ballot access laws,” the court’s 54-page opinion published Wednesday states.
     The Constitution Party, the Green Party and the Libertarian Party sued Pennsylvania in May 2012 over the state’s election law, which has been on the books since 1937 and requires minor parties to gather signatures to get their candidate on the ballot. Their challenge took aim at a provision of the law that requires minor parties to shoulder the cost when their nominations are challenged by the major parties – which almost always happens because the major parties don’t want to lose votes.
     One catalyst for the case was the order for presidential candidate Ralph Nader and his running mate to pay $81,000 after a court determined that their signature-gathering efforts “involved fraud and deception of massive proportions.”
     It marked the first time costs were ever imposed pursuant to that law, “and the reverberations from that decision have been significant,” Judge Kent Jordan wrote for the three-judge appellate panel.
     The minor parties claimed that the decision to impose those fees chilled candidates from seeking election and hindered electioneers from campaigning and collecting signatures for their nominee.
     They also claimed that the threat of “extraordinary costs” in the Nader case caused them to “withhold or withdraw their nomination petitions” during the 2006 election cycle.
     Ken Krawchuk claimed that, although he was nominated by the Libertarian party to run for the U.S. Senate, he declined after Nader was sanctioned with fines.
     Christina Valente, the Green Party’s candidate for lieutenant governor in 2006, likewise told the court: “after a challenge was filed against me … I withdrew from the race. My decision to withdraw was based entirely on the fact that I was unwilling to assume the risk of incurring litigation costs.”
     That left only one minor party candidate on the ballot in 2006, the Green Party’s Carl Romanelli for the U.S. Senate. He was required to get 67,070 signatures to get on the ballot, and got 93,829 signatures. A successful objection by the Democratic Party resulted in his removal, however, as well as a bill for $80,407.
     In Romanelli’s case, the commonwealth court found that the fees were warranted because he and the Green Party failed to comply with court orders, including a requirement that they provide nine people to help in the review of the nominating signatures and that they timely provide the court with “specifics of what stipulated invalid signatures [Romanelli] believed could be rehabilitated.”
     While the Libertarian Party got enough unchallenged signatures to place candidates on the general election ballot in 2008, the Constitution and Green parties were unable to get any of their candidates on the ballot.
     The chairman of the Constitution Party stated in a declaration before the court that, after the 2006 election, his party could not recruit any candidates “willing to submit nomination petitions and thereby risk incurring litigation costs” pursuant to the law.
     “Supporters of that party were also unwilling to donate time and resources to electioneering,” Jordan wrote.
     When the minor parties resumed the nomination signature gathering process in 2010, the Democrats, Republicans “or their ‘allies’ were allegedly behind objections to the nomination papers of the Green and Libertarian Parties,” Jordan wrote.
     The minor parties “point to a challenge to the Libertarian Party’s nomination papers as an example of the kinds of threats of financial ruin used by the major parties to shut down competing political activity,” Jordan wrote.
     Unable to assume the risk of incurring the costs, the Libertarian Party candidates ultimately withdrew their nomination papers. There was no Libertarian party candidate on the 2010 ballot.
     The Green Party’s 2010 Senate nominee Melvin Packer also withdrew his nomination amid a challenge by Democratic Senate candidate Joe Sestak who purportedly “could not afford to have costs assessed against [him].”
     The Constitution Party’s gubernatorial candidate that year, John Krupa, also refused to submit his nomination papers for fear of incurring litigation costs, Jordan wrote.
     Just like in 2006, the 2010 general election featured only candidates for the major parties, Republicans or Democrats, according to the ruling.
     U.S. District Judge Lawrence Stengel nevertheless tossed the lawsuit in May 2013, ruling that the nontraditional parties lacked standing.
     In reversing Wednesday, the 3rd Circuit chided the lower court for failing to “review the complaint in the light most favorable to the aspiring parties.”
     “What is not open to debate on the record before us, viewed in the plaintiff-friendly light that it must be, is that the award of costs in past cases has had a chilling effect on protected First Amendment activity,” Jordan wrote. “Political actors have used the recent precedents from Pennsylvania courts as a cudgel against nonmajor parties and their candidates.”
     Several “noteworthy developments in Pennsylvania law in the last 10 years” affected the court’s analysis, the appellate panel added.
     “First, highly publicized awards of costs against would-be candidates; second, new case law allowing such costs to be awarded despite the good faith efforts of people facing challenges to nomination papers; and third, repeated threats to pursue similar cost awards against” the third-party candidates, Jordan wrote.
     He added: “What is not open to debate on the record before us, viewed in the plaintiff-friendly light that it must be, is that the award of costs in past cases has had a chilling effect on protected First Amendment activity. Political actors have used the recent precedents from Pennsylvania courts as a cudgel against non-major parties and their candidates.”
     The major parties, “acting strategically … have tried and will continue to try to block anyone from the ballot box who might strip votes from their favored candidates,” Jordan said.
     In sum, the circuit decided that the “cost-shifting sanctions … inherently burdens their electioneering activity.”
     In his eight-page dissent, Judge Thomas L. Ambro said that “subjective fear alone, no matter how deeply perceived, does not create a case or controversy the Constitution empowers us to hear unless that fear has a sufficient objective basis.”

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