The past 10 years have been very different for third party political candidates in Pennsylvania, compared to the previous 30. It is true that obtaining a place on the November Election Ballot has always been difficult for third party and independent candidates here, but since 2004 — the year Ralph Nader was hit with over $80,000 in legal fees following a challenge by the Democrats — such difficulty has increased dramatically. The assessment of legal fees upon Nader in 2004 has had a chilling effect on potential third party candidacies, as well as diminishing the organizational ability of those parties to find the volunteer force necessary to obtain the disproportionate number of signatures to even file a candidate, one who would likely face a challenge from Republicans and Democrats. Since the minor parties have not been able to obtain any relief, or even meaningful comment, from Pennsylvania’s state courts, recent legal action has been filed in federal courts. Currently, there are two active cases pending in those venues.
Both minor parties and political bodies need to go through the signature gathering process, which takes months and is typically an expensive endeavor.
A review of PA ballot procedures
Before either of these cases can be reported, it is important to understand how ballot access works in Pennsylvania. First, political organization in Pennsylvania is divided into three categories: major parties (Republican and Democratic), minor parties, and political bodies. At present there are no parties technically classified as minor. That is because such recognition is attained only when a candidate achieves a vote tally of at least two percent of the highest vote in a district in a particular year. Neither the Libertarian nor Green parties attained the votes necessary to qualify in 2012, so they are not listed as minor parties statewide. Further, there will be no third party candidates on the Pennsylvania ballot for governor this year, thus assuring that no third party can claim minor party status until 2017 at the earliest. There are some benefits to being a minor party, such as having the party name appear as one of the party affiliation options on voter registration forms, as well as having the ability to place party candidates on the ballot for special elections.
Both minor parties and political bodies need to go through the signature gathering process, which takes months and is typically an expensive endeavor. That process has long been a source of complaint for third parties. For example, in order to qualify for a statewide ballot position, major parties must submit a fixed number of valid signatures from year to year. For example, 2,000 for governor and 1,000 lieutenant governor, while the requirement for third parties is based on a formula of two percent of the highest vote tally in any statewide race in the most recent election. In 2014 that figure came to just under 17,000 valid voter signatures. The threshold will vary from year to year as vote totals vary from election to election. In 2006, for example, third party and independent candidates needed a minimum of 67,070 signers in order to place a candidate on the General Election ballot. That year, the Green Party filed nearly 100,000 signatures for a US Senate candidate, only to have the signatures challenged (legally contested) and the candidate removed from the ballot. Astoundingly, he was assessed with over $80,000 in legal fees for losing that legal battle to merely appear on the statewide ballot that year. The combination of such imposing signature standards and the impending threat of onerous legal fees being heaped on candidates is at the center of one of the current federal actions.
Recent legal challenges
In 2012 the Green, Libertarian, and Constitution parties, along with some individual members of those parties, filed a federal court case challenging as unconstitutional the two-tiered scheme of inequitable signature requirements and the threat of heavy court cost assessment. On March 8, 2013, the judge assigned to the case dismissed it, concluding that the plaintiffs in the case “lacked standing” to bring such claims. The decision was appealed to the Third Circuit Court of Appeals. On July 9 of this year the appeal was won and the matter remanded to the original judge for a hearing on its merits. This is considered a major victory for the smaller parties.
Previous attempts to challenge Pennsylvania ballot access have not been nearly so fruitful. In the case just described, the parties advanced the constitutional challenge through their attorney, Oliver Hall, from the Center for Competitive Democracy in Washington, DC, to a point where the issues of signature requirements and legal monetary penalties will actually be heard. In previous suits the parties were never able to argue their positions, as the complaints were dismissed without ever receiving a full trial. So the parties are now a bit more hopeful that there will soon come some relief. But they also remain wary, because past practice seems to indicate that the courts have little sympathy for the systemic restrictions some states place on candidates who do not hail from the legacy political parties of the Rs and Ds.
In a second case filed earlier this year, the Green and Libertarian parties are also seeking relief regarding how Pennsylvania treats third party candidates, in particular, during a signature challenge. However, unlike the case discussed previously, this matter focuses on the constitutionality of the manner in which signatures are contested, or stricken by the courts. On July 31, 2014, a few of the issues were heard in an emergency hearing. Issues which directly impacted this year’s filing were presented. Representing the parties in this case is Lancaster attorney Paul Rossi. One of the most significant issues in this suit is whether or not a signer needs to be a registered voter at the time of signing. The parties and their counsel assert that they do not, as Pennsylvania makes a distinction between a “qualified elector” and a “registered qualified elector.” By definition in the Pennsylvania Constitution, a qualified elector is basically a US citizen who resides in Pennsylvania, is not a felon, and is at least 18 years old. Since Democrats and Republicans run in Primary Elections, it is justifiable to require their nomination petition signers to be members of the parties. The only way one is a Republican or Democrat is by voter registration. Remember that Primaries are not really elections, but rather a nomination of candidates for the actual election, which is General Election day in November. So, in this court case the third parties believe that denying a Pennsylvanian the right to sign a nominating form is a constraint to constitutionally protected First Amendment speech.
Another matter of contention
Concerning the issue of whether or not a signer of third party papers needs to be registered to vote, the court sided with the Commonwealth and said such signers must be registered. However, an appeal of that decision may be filed. Another issue heard during the July emergency hearing is a challenge to requiring notarization of each nomination page. The parties argue that such a requirement is redundant, as the person circulating the nomination paper must also sign to verify the authenticity of the page. Further, notarization costs can be an expensive undertaking for small parties with small treasuries, especially considering the sheer amount of pages to be notarized due to the high signature threshold required. This is also an issue on which the court ruled against the parties, and in favor of the Commonwealth position. Despite these setbacks, the parties did win on the matter of using out-of-state petition circulators. Prior to the July victory, if an out-of-state person circulated a nomination paper, he or she was required to be accompanied by a Pennsylvanian. It can be a frustrating issue for third parties who often need to rely on paid staff to reach the difficult level of signature submissions required in Pennsylvania. So, experienced circulators from out of state may now gather signatures without such activity being a fatal flaw to the nomination process.
The final issue resolved in July is that of a signer omitting the year when filling in the date on a nomination form (a signature line consists of a number of fields in addition to an actual signature field). Since forms printed this year, indicate such on the form itself, Pennsylvania courts have determined that such an omission on the part of a signer is not enough to strike a signature, so rendering it invalid. So for 2014, if a candidate is challenged on the issue of an incomplete date, it is likely that the signature will not be excluded from the set of valid signatures. However, that is not a guarantee. The federal court did not address the specifics of this issue because they believe that it is settled law in Pennsylvania. Nevertheless, the parties contend that how a signature is viewed may be different from judge to judge. They therefore sought a more permanent ruling from the federal court. Additionally, the suit also seeks to require that the current date be printed on forms for every election cycle, thereby negating the ability of old party operatives to invalidate signatures where a signer does not include the year in the date column.
A “compelling” state interest?
There are several other difficulties that the third parties are attempting to eliminate by having remedies codified into law. Among these is the practice of segregating signers by county of residence. The parties argue that since the database of voters is a statewide central registry, there is subsequently no need to sequester by county. Also, parties contest that signers are limited to signing just one third party nomination paper. They point to the fact that some voters may like a candidate from one party for the office of governor, but may have a different candidate of preference for Senate. Since all candidates on third party nomination papers are listed on that paper, by limiting signing to one paper only, electors’ choices are limited by a rule that serves no real or “compelling” state interest.
The Green Party, Libertarian Party, and Constitution Party have each vowed to continue to struggle to remove barriers to free and equal elections.