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 (adam@boninlaw.com) 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.
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9 Responses
Also BTW, I’ll add this: nothing regarding the probability of success by a major party candidate challenge changed at all this week. The “invitation” to challenge this requirement was issued 10 years ago by U.S. District Court in footnote 16 on pages 21-22 of the Morrill opinion. The metaphorical “offer” has gone unused all this time. The PA Supreme Court has offered no such invitation.
Mr. Bonin, I agree with you fully on all points. The Secretary will be posting soon her view that this ruling does not apply to major party primary petitions. I feel strongly, though, that the more fruitful path for a major party plaintiff would be in U.S. District Court, as Morrill did, because the state courts have strongly indicated their reluctance to weigh in here. A state court strategy seems destined to go all the way to the Supreme Court, with all its attendant co$t$.
BTW, thanks for the LinkedIn link.
Larry, no one would deny that the trend has been in favor of striking these requirements. What I hoped to clarify, however, is that (a) this week’s ruling didn’t itself strike down the out-of-district circulator rule for major party candidates, and (b) there’s no guarantee that the Supreme Court will in fact do so when asked, so I would advise candidates to stick with in-district circulators until they do.
see:
THE HONORABLE RICK PERRY, Plaintiff, and
THE HONORABLE NEWT GINGRICH, THE HONORABLE JON HUNTSMAN, JR., and THE HONORABLE RICK SANTORUM, Interveners,
v.
CHARLES JUDD, Member of the Virginia State Board of Elections, in his official capacity, et al., Defendants.
Civil Action No. 3:11-CV-856-JAG.
United States District Court, E.D. Virginia, Richmond Division.
January 13, 2012.
DEAR COUNSELORS
DON’T YOU THINK THE 14TH AMENDMENT MIGHT COME INTO PLAY HERE
EQUAL PROTECTION AND THAT OTHER CONSTITUTIONAL STUFF LIKE THE FIRST AMENDMENT. TAKE A LOOK AT RICK PERRY V COMM OF VA. USDC SDVA 2012
ALSO, I WOULD NOT HESITATE TO TAKE THE QUESTION UP TO THIS COURT SHOULD SOMEONE TRY TO KNOCK OFF ONE OF MY ELECTION CLIENTS ON THAT FLIMSY BASIS.
OF, COURSE, THE COMMONWEALTH COURT GOT THE MESSAGE I’M SURE. IF I WAS A DEM OR GOP CANDIDATE IN 2014, I WOULD NOT BE TERRIBLY CONCERNED
BEST REGARDS
LARRYOTTER@HOTMAIL.COM
Kurt, I both agree and disagree — the Department of State does not believe this applies at present to major party candidates at present. The question is what the Courts will do when confronted with the issue, and they may well say the same analysis will control. Who knows? I am not aware of any case this cycle which is going to present the issue to the PA Supreme Court.
Let me up your “may not apply” to a certain “does not apply” to R’s and D’s. So sayeth the Departmemt of State. Ask ’em.
Using its warchest, “time, money, and risk” is what the PAGOP likes to bleed from threatening non-endorsed Republican candidates.
Happened again this cycle: https://www.politicspa.com/christian-to-remain-on-us-senate-ballot/32572/
My thoughts exactly.