[EL] Pennsylvania has 7 laws declared unconstitutional still on books
Adam Bonin
adam at boninlaw.com
Mon Nov 18 09:04:48 PST 2013
I’m not sure if it’s accurate to state that Pennsylvania “still enforces the
ban on out-of-district petitioners for primary petitions” inasmuch as I
don’t believe it’s come up again – well-advised major party candidates
aren’t going to take the risk (and assume the litigation expense) of their
ballot access relying on signatures collected by out-of-district
circulators, and have avoided becoming test cases for the proposition. See
http://www.politicspa.com/op-ed-circulator-ruling-may-not-apply-to-dems-gop/
33319/ for more.
Also declared unconstitutional by the PA Supreme Court in 1980 and deemed
unenforceable by the Department of State, but still technically in the
books, is 25 P.S. § 3258(b):
(b) (1) No candidate for public office, or political committee or party
acting on his behalf, shall place any advertisement referring to an opposing
candidate for the same office which is to be broadcast or published during
the one hundred and twenty (120) hours immediately prior to an election or
published in a weekly newspaper or periodical during the eight (8) days
immediately prior to an election, with a television or radio broadcasting
station, newspaper or periodical, unless he has first given a copy of the
material to appear or be used in the advertisement and reasonable notice to
the opposing candidate and the county board of elections of the county where
the advertisement is to be placed in sufficient time for a reply
advertisement to be published or broadcast at the same approximate time or
in the same issue of the publication or on the same radio or television
broadcast as the original advertisement and prior to the election in
question.
(2) The reasonable notice referred to in clause (1) shall be given in
writing by registered mail, return receipt requested, addressee signature
only, with a true copy of the material enclosed to appear or be used in the
advertisement so as to afford the recipient sufficient time to place a reply
advertisement to be published or broadcast at the same approximate time or
in the same issue of the publication or on the same radio or television
broadcast as the original advertisement and prior to the election in
question.
(3) Any person, firm or corporation, political committee or party or member
thereof, violating any of the pro- visions of this section, shall be guilty
of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a
fine not exceeding one thousand dollars ($1,000), or to undergo an
imprisonment of not less than one (1) month nor more than two (2) years, or
both, in the discretion of the court.
Adam C. Bonin
The Law Office of Adam C. Bonin
1900 Market Street, 4th Floor
Philadelphia, PA 19103
(215) 864-8002 (w)
(215) 701-2321 (f)
(267) 242-5014 (c)
adam at boninlaw.com
http://www.boninlaw.com <http://www.boninlaw.com/>
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Richard
Winger
Sent: Monday, November 18, 2013 11:51 AM
To: Brenda Wright; Smith, Brad; Schultz, David A.; law-election at uci.edu
Subject: [EL] Pennsylvania has 7 laws declared unconstitutional still on
books
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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