ALLENTOWN – A new federal lawsuit from Pennsylvania’s Libertarian, Constitution and Green parties argues the state requirements for collecting in-person signatures to qualify for a general election ballot are unconstitutional in light of the coronavirus pandemic, but a federal judge has denied their request for a restraining order.
Those political parties, plus their candidates Steve Scheetz, Kevin Gaughen, Alan Smith, Timothy Runkle, Bob Goodrich and Justin Magill filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 14, versus Pennsylvania Gov. Tom Wolf, Secretary Kathy Boockvar and Deputy Secretary for Elections and Commissions Jonathan M. Marks.
Pennsylvania designates “minor” political parties as those which receive less than 15 percent of registered voters statewide and “political bodies” as organizations that don’t overcome a given threshold of votes cast in the most recent general election.
Candidates of such parties are required to be witnessed collecting a certain number of voter signatures in person, in order to appear in the general election. For this year’s election, the deadline for which to collect the signatures is Aug. 3.
“The public health emergency caused by COVID-19 and the various ‘stay at home’ orders issued by Governor Wolf make it unlawful and practically impossible to gather signatures for nomination papers in Pennsylvania,” according to the lawsuit.
“The Governor’s new remote rules for notaries and witnesses demonstrate that requiring in-person contact to satisfy Pennsylvania’s petitioning requirements is not presently possible. Further, it will remain difficult if not practically impossible to collect signatures after emergency measures are lifted, because personal contact with large numbers of people during the COVID-19 pandemic will continue to present an unacceptable risk to the public health.”
According to the plaintiffs, the usual requirements of signature collection should be waived due to the coronavirus pandemic and the level of danger that would be involved with obtaining them.
UPDATE
Just last Tuesday, U.S. District Court for the Eastern District of Pennsylvania Judge Edward G. Smith denied the political parties’ motion for a temporary restraining order/preliminary injunction.
Smith said that while the plaintiffs first argue that they are entitled to relief because Pennsylvania has failed to provide them with any procedure for qualifying for the Nov. 3, 2020 general election ballot, the Court found this was not the case as the ballot access requirements established by the court’s Feb. 1, 2018 order in Constitution Party of Pa. remained in effect, which gives the plaintiffs a possible way to access the ballot.
As a result, the question becomes “what level of burden these ballot access requirements would impose on the plaintiffs, in light of the COVID-19 pandemic.” Smith found that the burden was “intermediate” and “not as severe as they argue.”
“A burden can be characterized as severe if it works to exclude legitimate candidates from the ballot. Here, none of the stay at home orders precluded the plaintiffs from collecting signatures directly, which is the means for accessing the ballot. Furthermore, Pennsylvania began lifting its stay at home restrictions in May, with all counties in Pennsylvania having their stay at home orders lifted as of June 5, 2020,” Smith stated.
“Additionally, plaintiffs had 33 days to collect signatures prior to the first stay at home order going into effect on March 23, 2020, and the plaintiffs have a full 60 days from June 5, 2020 to Aug. 3, 2020, which is the deadline for signature collection, to meet the requirements imposed by the Feb. 1, 2018 order.”
In the Court’s view, while it “acknowledged the realities and the added difficulties on the ground due to the COVID-19 pandemic, the burden on the plaintiffs cannot be properly characterized as severe as it is possible for them to obtain the requisite number of signatures by the deadline”, and Smith concluded by not granting the injunction.
“To obtain a preliminary injunction, the plaintiffs are required to clearly show that they are entitled to this extraordinary remedy. In addition, they have a particularly difficult burden here because they are seeking for the court to alter existing election laws, which the Supreme Court has repeatedly counseled against,” Smith said.
“Unfortunately, the plaintiffs have not met their high burden as they have not demonstrated that they are likely to succeed on the merits of their claims or that they will suffer irreparable harm absent court relief.”
On Thursday, the political parties appealed Smith’s ruling, to stay the denial and issue an injunction pending an appeal to the United States Court of Appeals for the Third Circuit.
“The deadline for collecting a sufficient number of signatures is Aug. 3, 2020. Plaintiffs’ likelihood of meeting that deadline is small, meaning that the candidates of the Libertarian Party, Green Party and Constitution Party, including their presidential tickets, are not likely to appear on Pennsylvania’s ballot without relief,” counsel for the plaintiffs said in a Thursday filing.
“Should this Court choose not to place the plaintiffs’ candidates on Pennsylvania's ballot, plaintiffs respectfully request that the Court enjoin the deadline and Pennsylvania’s in-person signature requirement so that plaintiffs have a reasonable chance of collecting a significant number of signatures; and reduce the signature requirement, as has been done in other jurisdictions.”
Simultaneously filed with the Court was the appeal to the Third Circuit.
For counts of violating the 1st Amendment and the equal protection and due process clauses of the 14th Amendment, the plaintiffs are seeking a preliminary injunction and declaratory judgment prohibiting enforcement of Pennsylvania’s signature requirements for Minor Party and Political Body candidates for office for Pennsylvania’s Nov. 3, 2020 general election, to accept the plaintiff candidates’ nomination papers and placing their names on the ballot; costs; attorney’s fees and additional relief the Court deems just.
The plaintiffs are represented by Drew Gray Miller of Anderson & Labovitz in Pittsburgh, Mark R. Brown in Columbus, Ohio and Oliver B. Hall for the Center for Competitive Democracy, in Washington, D.C.
The defendants are represented by Daniel T. Brier, Donna A. Walsh and Richard L. Armezzani of Myers Brier & Kelly, in Scranton.
The intervening Pennsylvania Democratic Party is represented by Clifford B. Levine of Cohen & Grigsby, in Pittsburgh.
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-02299
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com