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

Mon Nov 18 09:37:16 PST 2013

I did say “well-advised”; I was the appellate attorney for the objectors to her petitions.  Varma failed to show up at the Commonwealth Court hearing altogether, despite proper service (and admitting same on her Facebook page), and as such was properly precluded from raising these constitutional issues at the first instance before the state supreme court.   (Also, the initial objectors stopped after the out-of-district circulator issue put Varma below the 1000 signatures required; had they continued, they could have stricken several hundred more signatures.)

Indeed, a word of advice to future candidates: don’t put posts like this on your Facebook wall if you intend to later challenge whether you were properly served:

Varma Facebook Posts After Being Personally Served

March 18, 2:38pm: Brady, I just want to say one thing to you. Challenging my petitions and trying to kick me off the ballot just highlights your weakness. It shows how much your seat in Congress means to you and how much you have to lose.

March 20, 12:37pm:  Brady is trying very hard to get me kicked off the ballot. Here is the key difference between Robert Brady and myself. I WANT Brady to stay on the ballot. I am confident that if Brady and his ideas and me and my ideas were both presented to King Solomon, mine would win.

March 20, 6:33pm:  Joe, I don’t appreciate Brady using conduits to try and intimidate me out of this race. If he wants me off the ballot, have that coward call me and tell me himself. My advice to Brady? Stop crying, drop the challenge, take the gloves off and fight like a man.

Varma Facebook Posts After Commonwealth Court Hearing

March 22, 5:26pm:  Why did I not show up in court today? Because whether I was served or not served, whether I showed up or not, it would not have mattered. Philadelphia is not run by competing political parties, it is run by a machine. Either the Republican Party is incompetent or corrupt. Either way, the fix is in and I will not be party to it.

March 22, 10:27pm:  Think about what this means for a second. Obviously, I must take full responsibility for not getting enough signatures. Which I do. But take me out of the equation for a moment. From an outsiders point of view of the situation, think about the significance. The Republican Party of Philadelphia, one of the largest cities in the nation, has no candidate for Congress.

March 22, 10:39pm:  Norman, I accept full responsibility. I didn’t get enough signatures. I was naive and trusting.  That is not the point. I am pointing out inefficiencies in the system, corruption in the system. These are the things that we should be concerned about. I am not playing victim, I am pointing out wrongs. The Philadelphia machine existed before I came along and will exist after I am gone. Me and my failures are not the point. 

March 22, 11:09pm:  Who am I at the end of the day? I am a silly naïve 27 year old who couldn’t get enough signatures.

--Adam

From: Richard Winger [mailto:richardwinger at yahoo.com] 
Sent: Monday, November 18, 2013 12:25 PM
To: Adam Bonin; 'Brenda Wright'; 'Smith, Brad'; 'Schultz, David A.'; law-election at uci.edu
Subject: Re: [EL] Pennsylvania has 7 laws declared unconstitutional still on books

In 2010, the only candidate who petitioned to be on the Pennsylvania Republican primary ballot for US House, 1st district, was Pia Varma.  She was kept off the primary ballot because she used out-of-district circulators.  She sued, but the Commonwealth Court didn't discuss the constitutional issue (because she didn't know about the federal precedent, she didn't raise it when she was challenged in Commonwealth Court).  Then she went to the State Supreme Court, and by then she did know about the constitutional argument, but the State Supreme Court said it couldn't be raised at that point and affirmed the Commonwealth Court opinion.  In re objections to Nom. Pet. of Pia Varma, 12 EAP 2010.

As a result, the Democratic nominee in that district was the only name on the November ballot.

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

  _____  

From: Adam Bonin <adam at boninlaw.com>
To: 'Richard Winger' <richardwinger at yahoo.com>; 'Brenda Wright' <bwright at demos.org>; "'Smith, Brad'" <BSmith at law.capital.edu>; "'Schultz, David A.'" <dschultz at hamline.edu>; law-election at uci.edu 
Sent: Monday, November 18, 2013 9:04 AM
Subject: RE: [EL] Pennsylvania has 7 laws declared unconstitutional still on books

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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