[EL] Pennsylvania Circulator Residency Victory!

[Richard Winger]

The word "disgrace" has been bandied about recently about Justice Clarence Thomas.  Setting aside any thoughts about Justice Thomas, the word "disgrace" truly fits the Pennsylvania legislature.  There are now 8 Pennsylvania election laws that have been held unconstitutional, or enjoined, or in which the state consented a lawsuit by giving in, and in all 8 instances, the legislature has not corrected the election law.

The most outlandish example is that in 1984 the state promised not to enforce the statutory deadline for independent candidate petitions, and promised instead to use August 1 as the deadline. In 30 years the legislature has never amended the deadline.  Anyone relying on looking in the code itself would think the deadline is in May, when in the real world it is in August.


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


________________________________
 From: Flavio Komuves <fkomuves at optonline.net>
To: Adam Bonin <adam at boninlaw.com> 
Cc: law-election at uci.edu 
Sent: Sunday, February 23, 2014 8:59 AM
Subject: Re: [EL] Pennsylvania Circulator Residency Victory!
 


Some further comment on this matter:

In response to the constitutional challenge in Villa v. Aichele, Civ. A. No. 13-6374 (E.D. Pa. filed Nov. 1, 2013), the Secretary of State of 
Pennsylvania, on the advice of the Attorney General, decided to 
“suspend” and “cease enforcing” 25 P.S. § 2869, a law restricting the 
residency of petition circulators for major-party candidates in 
Pennsylvania to registered voters from the “political district.”  
Pennsylvania’s decision to suspend and cease enforcing the geographical 
restrictions of 25 P.S. § 2869, which deals with major-party candidates, thus expands the rule announced twelve years ago in Morrill v. Weaver, 224 F. Supp. 2d 882 (E.D. Pa. 2002), that independent candidates’ 
petition circulators are not limited to those residing in the same 
political district as the candidate.  In sum, from the perspective of 
the chief state election official, all sub-State geographical restrictions on petition circulators in Pennsylvania have been done 
away with. 

The Secretary of State has cautioned candidates that
 although she surrendered on the issue, the Commonwealth Court, the 
state tribunal that rules on petition challenges, is not bound by her 
determination.  Indeed, after Morrill, the Pennsylvania state courts had repeatedly opted not to follow its ruling, saying that were not bound by it.  The Pennsylvania Supreme Court in In re Stevenson, 40 A.3d 1212 (Pa. 2012), made clear while this is technically accurate, state courts should as a general matter follow federal judgments on the constitutionality of election laws, at least on comity grounds, and specifically directed the courts to follow Morrill.  

Our view is that the state courts' reluctance to follow federal guidance in Morrill had much to do with the fact that the entity issuing the guidance was a federal, rather than a state one.  Here, the guidance is issued by the highest state officials.  The risk that the state courts will disregard guidance was issued by a state official is, in our view, much less than the risk they would not follow the decision of a federal official.  Indeed, we view that risk as being so low that it warranted the dismissal of Villa v. Aichele.  As I understand it, candidates and parties are accepting out-of-district circulators as volunteers in this cycle.  And this is understandable given the case history.  While the State has not opted to post the earlier correspondence that led to that dismissal, it has been lodged with the federal court as part of the dismissal papers, and I can provide a copy to anyone that wants it.

While few things can ever be said to be truly "finally resolved," we view the issue as having been actually litigated and finally resolved, at least to the extent that any issue can be said to meet those characteristics.  If the state courts decline to follow the AG's determination in Villa v. Aichele, which determination led to the dismissal of federal litigation, that is going to create possibly insurmountable difficulties down the line for settling any case with Pennsylvania.  That is, how can people ever settle a case in the future with the enforcing officials if there is evidence the state courts will not honor that resolution.  I just do not see it as a plausible outcome; it would be too embarrassing and dishonorable for more than one branch of the Commonwealth's government and would make any kind of settlement negotiations virtually impossible.  

My firm represented Plaintiff in the case.  Again, if anyone would like a copy of the full exchange of papers that led to the resolution of this litigation, please contact me.  

Flavio Komuves


On Sun, Feb 23, 2014 at 08:06 AM, Adam Bonin wrote:



While the PA Department of State has confirmed that it no longer believes the in-district circulator residency requirement is constitutional and has revised the petition forms to reflect this – see more here, including the PA Attorney General’s letter on constitutionality http://dos.state.pa.us/portal/server.pt/community/information/12709/nomination_petitions_-_circulator_residency/1717287 -- they’ve also taken efforts to remind candidates that the statute itself still contains this requirement, and that if this issue is presented in Court it might be still be deemed operative: “it remains possible that individual qualified electors may file objections to nomination petitions in court on the basis that a circulator does not reside in the district as required by section 909 of the Election Code.”  I know that at the petition trainings held at the recent state committee meetings of the PA GOP and the PA Democratic Party, the advice provided to
 candidates was to not be dependent upon such signatures for ballot access, that  the ability to have a likely constitutional victory captioned as In re Nomination Petitions of (You) should be deemed less alluring than surviving this process without litigation.  So we’ll see if this actually does get litigated this cycle, and the issue finally resolved.
> 
>As to Richard’s post, and I know it’s been mentioned on this list before (see http://department-lists.uci.edu/pipermail/law-election/2013-November/008141.html and other posts in that thread), but the 2010 Pia Varma litigation did not regard a candidate whose sole issue was the use of out-of-district circulators as he posits. Because Varma did not appear for her Commonwealth Court hearing, despite proper service, the objectors only presented enough testimony (including on the out-of-district circulators) to demonstrate she didn’t meet the 1,000 signature threshold (having submitted 1,138).  Among other defects, there were an additional 275 signatures that are invalid based upon the signer (a) not being a registered voter; (b) not being a registered Republican; or (c) not being registered to vote within the First Congressional District – and often a combination of (a) or (b) with (c). 
> 
> 
>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
> 
> 
> 
>From:law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
>Sent: Sunday, February 23, 2014 7:40 AM
>To: law-election at UCI.edu
>Subject: [EL] ELB News and Commentary 2/23/14
> 
>No, Justice Thomas is Not a “Disgrace” 
>Posted on February 23, 2014 4:30 amby Rick Hasen 
>I am truly puzzled by Jeffrey Toobin’s blog post in the New Yorker, which goes after Justice Thomas for his silence at oral argument.
>Michael McGough makes most of the salient points rebutting Toobin. But I will just add this: Justices should be judged primarily by their opinions. This is the place in which the Justices’ views are translated into legal binding pronouncements, or into well thought-out arguments that the Court has headed off in the wrong direction.
>Judging Justice Thomas primarily by his opinions, there is no good argument that Justice Thomas is a “disgrace.”  Quite the opposite. As Toobin acknowledges, “For better or worse, Thomas has made important contributions to the jurisprudence of the Supreme Court. He has imported once outré conservative ideas, about such issues as gun rights under the Second Amendment and deregulation of political campaigns, into the mainstream. Scalia wrote District of Columbia v. Heller, which restricted gun control, and Kennedy wrote Citizens United v. Federal Election Commission, which undermined decades of campaign-finance law, but Thomas was an intellectual godfather of both decisions.”
>Indeed, I have written an extensive analysis of Justice Thomas’s leadership in conservative thinking in the campaign finance area. There is virtually nothing Justice Thomas and I agree upon in this area. But his ideas are respectable, and the intellectual heft in his opinions formidable.
>Even if we were going to focus on oral arguments (which we should not), how is Justice Thomas any more “disgraceful” at oral argument than Justice Ginsburg napping or Justice Scalia deriding a litigant for reading his opening at oral argument?
> 
>Posted inSupreme Court 
>Will Justice Stevens Call for a Constitutional Amendment to Overturn Citizens United? 
>Posted on February 23, 2014 4:16 amby Rick Hasen 
>Via Howard comes news of a forthcoming book from Justice Stevens, Six Amendments: How and Why We Should Change the Constitution.
>Early coverage concerns Justice Stevens’ calls to change the Second Amendment. I am curious to see what he has to say about the First and campaign finance (and he may have other election law issues in there too, such as dealing with partisan gerrymandering).
>I have been skeptical of proposed amendments to overturn Citizens United.
>Posted incampaign finance, Supreme Court 
>“Nowadays, people think ‘House of Cards’ is a documentary” 
>Posted on February 22, 2014 7:50 pmby Rick Hasen 
>Great Jack Pitney quote in LA Times on Wright, Calderon controversies.
>Posted incampaigns, chicanery 
>“Husted: BOE can move, but locals choose early voting site” 
>Posted on February 22, 2014 6:58 pmby Rick Hasen 
>The latest from Ohio.
>Posted inelection administration 
>“Where Have All the Lobbyists Gone?” 
>Posted on February 22, 2014 6:57 pmby Rick Hasen 
>Lee Fang in The Nation:
>On paper, the lobbying industry is quickly disappearing. In January, records indicated that for a third straight year, overall spending on lobbying decreased. Lobbyists themselves continue to deregister. In 2013, the number of registered lobbyists dipped to 12,281, the lowest number on file since 2002.
>>But experts say that lobbying isn’t dying; instead, it’s simply going underground. The problem, says American University professor James Thurber, who has studied congressional lobbying for more than thirty years, is that “most of what is going on in Washington is not covered” by the lobbyist-registration system. Thurber, who is currently advising the American Bar Association’s lobbying-reform task force, adds that his research suggests the true number of working lobbyists is closer to 100,000.
>>A loophole-ridden law, poor enforcement, the development of increasingly sophisticated strategies that enlist third-party validators and create faux-grassroots campaigns, along with an Obama administration executive order that gave many in the profession a disincentive to register—all of these forces have combined to produce a near-total collapse of the system that was designed to keep tabs on federal lobbying.
>>While the official figure puts the annual spending on lobbying at $3.2 billion in 2013, Thurber estimates that the industry brings in more than $9 billion a year. Other experts have made similar estimates, but no one is sure how large the industry has become. Lee Drutman, a lobbying expert at the Sunlight Foundation, says that at least twice as much is spent on lobbying as is officially reported.
>Posted inlegislation and legislatures, lobbying 
>“Court dismisses challenge to Arizona congressional maps” 
>Posted on February 22, 2014 6:53 pmby Rick Hasen 
>AZ Star:
>Arizona voters have a constitutional right to wrest control of drawing congressional boundaries from the Legislature, a federal court ruled late Friday.
>>U.S. District Judge Murray Snow acknowledged the arguments by Peter Gentala, an attorney for the Republican-controlled Legislature, that the U.S. Constitution spells out that the “times, places and manner” of electing members of Congress “shall be prescribed in each state by the Legislature thereof.”
>UPDATE: You can find the 14 page majority opinion and four page partial dissent embedded in this story at the Arizona Capitol Times. This case is subject to direct appeal to the U.S. Supreme Court.
>Posted inredistricting 
>Quote of the Day 
>Posted on February 22, 2014 6:48 pmby Rick Hasen 
>“People like you, Hasen, are destroying our democracy.”
>–A reader comment on my Washington Post Sunday Outlook piece on McCutcheon, More Corruption, Less Gridlock.
>Posted incampaign finance, Supreme Court 
>“Calderon indictment could affect other races, supermajority” 
>Posted on February 21, 2014 6:33 pmby Rick Hasen 
>This CA news was expected, but it is still BIG.
>Posted inbribery, chicanery, conflict of interest laws 
>“Redistricting Reform in the South” 
>Posted on February 21, 2014 6:22 pmby Rick Hasen 
>New FairVote report.
>Posted inalternative voting systems, redistricting 
>“Pennsylvania Circulator Residency Victory” 
>Posted on February 21, 2014 6:20 pmby Rick Hasen 
>Ballot Access News reports.
>Posted indirect democracy, petition signature gathering, residency 
>“Four things the District can try to send election turnout through the roof” 
>Posted on February 21, 2014 6:18 pmby Rick Hasen 
>Norm Ornstein has good ideas, as always.
>Posted inelection administration 
>“How ‘the next Citizens United’ could bring more corruption — but less gridlock” 
>Posted on February 21, 2014 11:18 amby Rick Hasen 
>I have written this piece for the Sunday Outlook section of the Washington Post. It begins:
>An opinion could come as early as this coming week in the Supreme Court case being called “the next Citizens United,” and groups concerned about the influence of money in American politics are bracing themselves for the result. Public Citizen has planned more than 100 events across the country in anticipation of a McCutcheon v. Federal Election Commission ruling that further dismantles our campaign finance laws and strikes down a key federal campaign contribution limit.
>>I, too, am troubled by the prospect of an awful decision that would clear the way for more corruption. But I find some solace in the thought that such a ruling could have a surprising positive side effect: reducing gridlock in Washington.
>Posted inUncategorized 
>-- 
>Rick Hasen
>Chancellor's Professor of Law and Political Science
>UC Irvine School of Law
>401 E. Peltason Dr., Suite 1000
>Irvine, CA 92697-8000
>949.824.3072 - office
>949.824.0495 - fax
>rhasen at law.uci.edu
>http://www.law.uci.edu/faculty/full-time/hasen/
>http://electionlawblog.org
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