Op-Ed: Circulator Ruling May Not Apply to Dems, GOP
With all due respect, I’m not quite sure that Monday’s Pennsylvania Supreme Court decision regarding out-of-district circulators means quite what commentators seem to think it does. In short, while the decision clearly eliminates that requirement as to independent and minor party candidates seeking ballot access, I am not sure that it offers any relief to candidates seeking to appear on the primary ballot for one of the major parties.
To understand this requires recognizing two things: (1) the decision, by its own terms, only applies to Section 2911(d), which concerns independent candidates only, and not Section 2869 with governs nominating petitions circulated for major party candidates; and (2) the Court’s reasoning is limited to its acceptance that a 2002 federal decision striking down that provision, Morrill v. Weaver, is final and binding on the Commonwealth as to the district residency requirement. At no point does the Court state that it agrees with the First Amendment analysis in Morrill; indeed, in footnote 12 the Court explicitly confirms it has not addressed the issue at all:
We offer no opinion on the merits of the Morrill court’s analysis of the First Amendment claim. Our decision today merely recognizes that because the Morrill judgment is final, it has preclusive effect, and the federal permanent injunction may not be undercut by decisions of our Commonwealth’s courts or actions of the Secretary.
Look: it may well be that when the Pennsylvania Supreme Court is directly confronted with the issue of out-of-district circulators for a major party candidate, it will then accept the First Amendment analysis of Morrill and courts in other jurisdictions which strike down such requirements. But it might not. The Morrill decision itself recognized certain differences between the two sets of requirements, and reserved judgment as to whether its holding would apply to the rules regarding major party ballot access as well.
As an attorney who regularly advises candidates on ballot access issues, I will strongly advise my clients to not become the test case for challenging this requirement, and instead to continue to rely only on in-district circulators registered in the same party. Litigation involves time, money, and risk, and candidates who can gather enough valid signatures from unquestionably legal circulators should continue to do so. Let someone else be the guinea pig.
Adam Bonin (firstname.lastname@example.org) is principal of The Law Office of Adam C. Bonin, which represents clients in election law, campaign finance, lobbying disclosure, and other political law matters.