Pennsylvania Record

Tuesday, October 22, 2019

Third Circuit: De La Fuente not prevented from appearing on 2016 Presidential Election ballot


By Nicholas Malfitano | Aug 13, 2018

PHILADELPHIA – A federal appellate court has denied claims from an independent presidential candidate from Florida, who alleged improper prevention of his name from appearing on ballots for the 2016 Presidential Election in the Commonwealth of Pennsylvania.

On Aug. 7, U.S. Court of Appeals for the Third Circuit judges Patty Shwartz, Richard L. Nygaard and Marjorie O. Rendell rejected the appeal of plaintiff Roque “Rocky” De La Fuente of Orlando, Fla., filed against Secretary of the Commonwealth Pedro A. Cortes and Commissioner of the Bureau of Commissions, Elections and Legislation, Jonathan Marks.

Back on Aug. 15, 2016, De La Fuente first filed a lawsuit in the U.S. District Court for the Middle District of Pennsylvania, alleging Cortes and Marks incorrectly interpreted a Pennsylvania state statute, which blocked his name from being listed on ballots in the 2016 Presidential Election.

De La Fuente is a registered and enrolled member of the Florida Democratic Party and was a candidate for the nomination of the Democratic Party for the office of President of the United States – and listed on the Pennsylvania primary election ballot for that purpose.

“On or about Aug. 1, 2016, plaintiff’s agents timely filed with defendants, pursuant to 25 P.S. Section 2911 (a) – (e), nomination papers containing over 5,000 valid signatures of qualified electors of the Commonwealth of Pennsylvania naming plaintiff as a candidate for President of the United States, and a slate of presidential electors pledged to cast their vote for plaintiff if elected to the Electoral College to be included on the Commonwealth’s 2016 general election ballot,” the lawsuit reads.

De La Fuente said Cortes and Marks “lacked statutory authority” to reject his nomination papers on the grounds provided in 25 P.S. Section 2911.1; namely, that even though De La Fuente had appeared on the primary election ballot for the nomination of the Democratic Party for the office of President of the United States, he wasn’t a member of a registered party in Pennsylvania.

“Plaintiff has never been a registered and enrolled member of any party within the jurisdiction of the Commonwealth of Pennsylvania. Plaintiff has never been a registered and enrolled member of any political party which has qualified as a party within the meaning of 25 P.S.,” the lawsuit read.

In part, 25 P.S. Section 2911.1 provides, “Any person who is a registered and enrolled member of a party during any period of time beginning with 30 days before the primary and extending through the general or municipal election of that same year, shall be ineligible to be the candidate of a political body in a general or municipal election held in that same year, nor shall any person who is a registered and enrolled member of a party be eligible to be the candidate of a political body for a special election.”

Since De La Fuente believed he did not fit that criteria, he saw no reason to be excluded from the general election ballot. De La Fuente claimed he sent a letter to Cortes on Aug. 3, 2016, demanding he reverse his office’s decision to rejection De La Fuente’s nomination papers. Cortes refused, leading to the litigation.

After Pennsylvania refused to place his name on the ballot, plaintiff brought a civil action challenging the constitutionality of Pennsylvania Election Code’s sore loser and disaffiliation provisions, and the provisions of the Election Code that limit who can circulate nomination petitions for candidates for the Democratic Primary Election.

De La Fuente’s complaint sought emergency mandamus, injunctive and declaratory relief that the defendants’ interpretation of the statute in question “impairs clearly established rights guaranteed to plaintiff under the First and Fourteenth Amendments to the United States Constitution, and the Qualification Clause of Article II, Section 1 of the United States Constitution”, and should a judicial order find favor with De La Fuente’s case, the state should accept his nomination papers for the 2016 Presidential Election within three business days.

De La Fuente’s desired relief would have “prevent[ed] the state from enforcing 25 P.S. Section 2911.1 against independent and political body candidates for President and Vice-President of the United States who were registered and enrolled member of political parties outside the jurisdiction of the Commonwealth of Pennsylvania within thirty (30) days of the Commonwealth’s preceding primary election”, and declared this statute unconstitutional under the First and Fourteenth Amendments.

Ultimately, the District Court dismissed De La Fuente’s claims, determining that the sore loser and disaffiliation provisions cited by Cortes and Marks against the plaintiff, were similar to state laws upheld by the U.S. Supreme Court in Storer v. Brown.

This led De La Fuente to appeal to the Third Circuit, believing those same provisions were unconstitutional. However, the federal appellate court believe the plaintiff’s claims “lack merit.”

“As the District Court noted, Storer differs from this case only in that California placed an earlier and more burdensome deadline for disaffiliation on candidates than Pennsylvania does. While the Supreme Court declined to create a bright line rule for testing this type of provision, the District Court correctly found that ‘the circumstances of the present matter align at nearly every point with the Storer decision.’ The Court did not err in finding that Storer controlled, and thus properly dismissed plaintiff’s constitutional challenge,” Rendell stated.

“Plaintiff also argues that Section 2869(a)’s registration requirement is unconstitutional. Section 2869(a) requires that electors be duly registered and enrolled as members of the same political party that is holding the primary. Plaintiff avers that this requirement violates the free speech rights of unregistered but qualified electors who want to circulate nominating petitions, as well as registered electors of a different party from the one identified on the petition. His arguments are unavailing.”

Rendell added while the Third Circuit has not spoken directly on the issue of registration requirements for petition circulators, the Second Circuit did so in Maslow v. Board of Elections in the City of New York, where the Court rejected a challenge to a nearly identical New York election law.

“The Court emphasized the importance of a political party being able to exclude in the nominee selection process. In addition, the Court opined that ‘Plaintiffs are only restrained from engaging in speech that is inseparably bound up with the…plaintiffs’ association with a political party to which they do not belong. As plaintiffs have no right to this association, they have no right to engage in any speech collateral to it.”

“Moreover, the Court concluded that ‘the State has a legitimate interest in protecting its political parties from party raiding.’ The Second Circuit’s reasoning is persuasive and applicable to the provision before us. The District Court was correct to dismiss plaintiff’s challenge to the registration requirement. For the foregoing reasons, we will affirm the District Court’s judgment and order,” Rendell concluded.

De La Fuente has already expressed desire to run in the 2020 Presidential Election.

The plaintiff is represented by Paul Anthony Rossi in Kennett Square.

The defendants are represented by Keli M. Neary and Nicole J. Radziewicz of the Office of the Attorney General, in Harrisburg.

U.S. Court of Appeals for the Third Circuit case 17-3778

U.S. District Court for the Middle District of Pennsylvania case 1:16-cv-01696

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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