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Constitution Party of PA v. Cortes

116 F.Supp.3d 486 (2015), aff’d, 824 F.3d 386 (3rd. Cir. 2016)

On may 17, 2012, CCD filed a lawsuit on behalf of a group of voters, candidates and minor parties challenging the constitutionality of two provisions of Pennsylvania law, which require independent candidates and minor political parties to submit nomination petitions containing valid signatures from voters equaling 2 percent of the largest vote cast for a winning statewide candidate in the previous election (25 P.S. § 2911(b)), and allow private parties to challenge the validity of the nomination petitions and to collect litigation costs from the defending candidate or party if the challenger prevails (25 P.S. § 2937). As applied, the provisions had been used to impose more than $80,000 in litigation costs against two separate candidates following the 2004 and 2006 general election cycles. Those cost judgments, the plaintiffs alleged, caused a chilling effect that prevented independent and minor party candidates from participating in Pennsylvania’s electoral process. The plaintiffs asserted claims for the violation of their freedoms of speech, petition, assembly and association for political purposes, and their right to equal protection of law, as guaranteed by the First and Fourteenth Amendments.

The District Court initially held that the plaintiffs lacked standing to assert their claims, but the Third Circuit Court of Appeals reversed. It concluded that “the award of costs in past cases has had a chilling effect on protected First Amendment activity.” Further, the Court of Appeals emphasized, “we are addressing a fundamental First Amendment right to political participation — not an inconvenience or burden, but wholesale disenfranchisement.” 

On remand, the District Court granted summary judgment to the plaintiffs. Following the Court of Appeals’ reasoning, the District Court found that individuals affiliated with the major parties had used the threat of litigation costs “as a cudgel against non-major parties and their candidates,” and that “[t]he ability of the minor parties to organize and voice their views has been decimated by Section 2911(b) and Section 2937.”

The defendants, Secretary of the Commonwealth Pedro Cortes and Commissioner of Elections Johnathan Marks, appealed, and this time the Court of Appeals affirmed. The defendants’ stated intention to continue enforcing Sections 2911(b) and 2937 “would be in clear violation of the District Court’s order,” the Court of Appeals concluded. It further concluded, quoting its prior opinion in the case, that “”[t]he Commonwealth cannot hide behind the behavior of third parties when its officials are responsible for administering the election code that empowers those third parties to have the pernicious influence alleged in the Complaint.”

On remand, the District Court entered an order enjoining the defendants from enforcing both challenged provisions against the plaintiffs. The order also lowered Pennsylvania’s signature requirement, by capping it at 5,000 signatures for statewide office, and fewer for district and local offices. At the defendants’ request, however, the District Court also imposed a new county-based signature distribution requirement. The plaintiffs therefore appealed from the District Court’s order insofar as it required them to obtain signatures from a certain number of counties, on the ground that the requirement was an unconstitutional vote dilution scheme in violation of the Fourteenth Amendment, due to the disparate populations of each county.

The Court of Appeals vacated the District Court’s order. “[C]ounty-based signature-gathering requirements have been held to be constitutional only when they have been shown to have no appreciable impact on the franchise,” it reasoned. Therefore, it concluded, the District Court could “impose the county-based signature-gathering requirements [only] if it concludes that the requirements would have no appreciable impact on voting rights.”

On remand, the District Court entered a new order that was identical to its previous order, minus the county-based signature distribution requirements. The order — including the new, lower signature requirements it established and the injunction against the imposition of litigation costs against candidates and parties who defend their nomination petitions when challenged — stated that it would remain in effect “[u]ntil such time as the Pennsylvania Legislature enacts a permanent measure amending or modifying the process to place the plaintiff political bodies on the general election ballot and this change is signed by the Governor of Pennsylvania.”

Graveline v. Johnson

336 F.Supp. 3d 801 (E.D. Mich. 2018), aff’d, No. 18-1992 (6th Cir. Sept. 6, 2018)

On July 27, 2018, CCD filed a lawsuit in federal district court for the Eastern District of Michigan to challenge Michigan’s ballot access requirements for independent candidates for statewide office. Plaintiff Christopher Graveline, an independent candidate for attorney general, and several of his voter-supporters specifically challenged Michigan’s requirement that such candidates submit nomination petitions containing 30,000 valid signatures by a deadline that falls 50 days prior to the major parties’ primary elections and 110 days prior to the general election. Taken together, these requirements had functioned as an absolute bar to ballot access for statewide independent candidates: not one such candidate had successfully complied with them in the 30 years since they were enacted.

On August 27, 2018, the District Court granted the plaintiff’s motion for preliminary injunction, entering an order placing Graveline on Michigan’s 2018 general election ballot provided that he could demonstrate he had submitted 5,000 valid signatures. Graveline had already submitted 14,157 total signatures, more than 5,000 of which were deemed valid. The District Court’s order thus entitled Graveline to appear on the ballot.

On September 6, 2018, the Sixth Circuit Court of Appeals entered an order denying the Michigan Secretary of State’s motion to stay the District Court’s order. The Court of Appeals concluded that “[t]he numerical signature requirement here, in combination with the signature collection window and filing deadline, is a severe burden on independent candidates and those who wish to vote for them.” It therefore applied strict scrutiny to analyze the challenged requirements, and denied the Secretary of State’s motion to stay. As a result, Graveline appeared on Michigan’s 2018 general election ballot.

Miller v. Doe

No. 1:19-cv-00700 (W.D. Tex., July 11, 2019)

On July 11, 2019, CCD filed a lawsuit on behalf of a group of voters, candidates and political parties, which challenges the constitutionality of Texas’s ballot access requirements for independent candidates and minor political parties. The plaintiffs challenge the combined impact of several statutory provisions, including the large number of handwritten voter signatures that must be submitted on paper nomination petitions in a limited period of time, as well as the restrictions on when nomination petitions may be circulated, which voters are eligible to sign them, and the deadlines for filing nomination petitions.

In 2020, the challenged provisions require minor parties to obtain 83,717 valid signatures on paper nomination petitions in only 75 days. Independent candidates for statewide office must obtain the same number in as few as 30 days, if there is a run-off primary for the office they seek. Independent candidates for president need to collect 89,692 valid signatures in just 69 days.

The plaintiffs allege that the cost of obtaining the required signatures will exceed $600,000 in 2020, largely because Texas’s nomination petition  procedure is obsolete. Texas first adopted that procedure in 1905, and it has not been significantly updated or improved in the 114 years since.

The plaintiffs assert claims for the violation of their rights to cast their votes effectively, to speak and associate for political purposes, and to the equal  protection of law. The lawsuit names the Secretary of State of Texas (presently a vacant office) and Deputy Secretary of State Jose A. Esparza as defendants in their official capacities, and seeks to enjoin the state from enforcing the challenged provisions.

Johnson v. Beuscher

No. 2010-cv-7624 (Dist. Ct., Denver, Co. 2010)

On March 18, 2011, CCD joined Citizens in Charge, the Humane Society of the United States and the National Taxpayers Union in filing an amicus brief on behalf of Colorado residents John Caldara and Linda Gorman, who sponsored a petition for the placement of an initiative on Colorado’s November 2010 statewide ballot. Caldara and Gorman are now defending an effort by political opponents who challenged their petition to collect costs and attorneys’ fees arising from the proceedings. The challengers allege that 51 petition circulators committed “address fraud” by listing their temporary Colorado addresses on a form that requested a Colorado address, even though the Colorado Secretary of State provided no clear guidance as to how the form should be completed, in light of a federal court order requiring that Colorado permit out of state residents to circulate petitions. CCD and the other amici oppose the imposition of costs and attorneys’ fees against Caldara and Gorman on the ground that petition circulation is core conduct protected by the First Amendment, and furthermore, neither the petition circulators nor Caldara and Gorman committed “address fraud” by using the circulators’ temporary Colorado addresses. Therefore, to allow the imposition of costs and fees would violate Caldara’s and Gorman’s First Amendent rights, and it would also chill the rights of all Coloradoans to participate in direct democracy through the citizens’ initiative process. The case is pending in the District Court for the City and County of Denver, Colorado.

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