[EL] Pennsylvania has 7 laws declared unconstitutional still on books

Mon Nov 18 08:50:56 PST 2013

The Pennsylvania legislature is unique in the nation, for ignoring ballot access decisions that invalidate state laws.  Pennsylvania has had 7 ballot access laws declared unconstitutional, or at least enjoined, that the legislature has never repaired.  Not only that, sometimes laws held unconstitutional in federal court in Pennsylvania continue to be enforced, and sometimes the state courts even say the state courts don't need to federal court decisions.

In 1984 the state signed a consent decree that it would not enforce the May petition deadline for newly-qualifying parties and independent candidates, and would instead use August 1.  But the code still has the May petition deadline, and sometimes uninformed candidates and groups depend on their reading of the election code, not realizing it isn't in force.

The 3rd circuit, en banc, struck down a law saying, in effect, only the two major parties could ever engage in fusion, but that law has never been amended either.  Reform Party of Allegheny County v Allegheny County Dept. of Elections, 174 F 3d 305.  But in 1999, a state court (Commonwealth Court) not only wouldn't let the Reform Party engage in fusion, it said "Decisions of intermediate federal courts are not binding on state courts."  In re nomination paper of Zulick, 534 m.d. 2003.  Then it mentioned as precedent for that conclusion a case involving habeus corpus.

A federal court struck down the county distribution requirement for statewide primary petitions in 1979, in an unreported decision, and the legislature did take cognizance of that decision, but it only amended the law for presidential primary and US Senate petitions, and continues to uphold it for statewide state office petitions.  State courts have upheld it for those petitions, several times, for example In the Matter of the Nomination Petition of Phil Berg, Commonwealth Court (1998).  Pennsylvania is the only state that still has a county distribution requirement for any type of statewide candidate or political party petitions.  It is nonsense for the state courts to uphold county distribution requirements for statewide petitions, because the US Supreme Court settled this for all types of petitions in 1969 in Moore v Ogilvie, and the rationale, one man-one vote, applies just as much to petitions for statewide office as for federal office.

A federal court in Pennsylvania struck down the law that says a petitioner can't circulate outside of his or her home district, in Morrill v Weaver, 224 F Supp 2d 905 (e.d. 2002), but the state courts continued to enforce it.  Finally, in 2012, the Pennsylvania Supreme Court said the state courts must follow the federal court decision.  But the state still enforces the ban on out-of-district petitioners for primary petitions, because the Morrill decision only related to petitions for minor party and independent candidates.  And the legislature has done nothing to amend the statute.

In 1993 a U.S. District Court ruled that it is unconstitutional to force candidates for statewide partisan judges to collect signatures equal to 2% of the highest vote-getting winner's vote from the previous statewide even-year general election, because that required far more signatures than are needed for statewide candidates running in even years (because in even years the base for the percentage is so much lower, because odd-year elections have much lower turnout).  Patriot Party of Pennsylvania v Mitchell, 826 F Supp 2d 926 (e.d. 1993).  But the statute has never been amended to reflect that decision.

A U.S. District Court enjoined the Pennsylvania law that made it illegal for an unqualified party to nominate someone who had been a registered member of a qualified party in the last 3 months, on the grounds that it was discriminatory because it didn't apply to the qualified parties, but the statute on that point was never amended.

And, as the e-mail above mentions, the Pennsylvania mandatory filing fee was struck down but the statute has never been amended to reflect that decision either.

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147

________________________________
 From: Brenda Wright <bwright at demos.org>
To: "Smith, Brad" <BSmith at law.capital.edu>; "Schultz, David A." <dschultz at hamline.edu>; "law-election at uci.edu" <law-election at uci.edu> 
Sent: Monday, November 18, 2013 7:33 AM
Subject: Re: [EL] How low (high) can you go?/Ballot access fees

Pennsylvania still had only option 1 until 2003, when the mandatory fee was struck down in Belitskus v. Pizzingrilli
http://caselaw.findlaw.com/us-3rd-circuit/1410638.html

I've wondered if there remain other laws like this on the books that haven't been challenged.

________________________________
 From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad [BSmith at law.capital.edu]
Sent: Sunday, November 17, 2013 10:50 PM
To: Schultz, David A.; law-election at uci.edu
Subject: Re: [EL] How low (high) can you go?/Ballot access fees

Option (1) was declared unconstitutional, Lubin v. Panish, 415 US 709; 

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
   Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________

From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Schultz, David A. [dschultz at hamline.edu]
Sent: Sunday, November 17, 2013 7:47 PM
To: law-election at uci.edu
Subject: [EL] How low (high) can you go?/Ballot access fees

Hi all:

What seems to be the threshold amount for a ballot access  fee to be before it is declared unconstitutional?

Two  scenarios:

1)  Fee only;  or

2)  Fee and with the alternative, signatures.

In general most jurisdictions have option two, but I wonder how many still have only option one.

I will take answers on or off-line.

Thank you.

-- 

David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science

1536 Hewitt Ave

MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
FacultyRow SuperProfessor, 2012, 2013

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