Wednesday, December 13, 2017
In its opinion in Constitution Party v. Cortes, a Third Circuit panel found fault with the district judge's injunction imposing on the Constitution Party, as well as the other plaintiff small political parties - - - known in the opinion as the Aspiring Parties - - - a requirement of county-based signature-gathering requirements. The case arose out of a challenge to Pennsylvania's scheme for allowing small parties on the ballot. After finding this previous scheme unconstitutional, the district judge considered remedies, eventually adopting the remedy proposed by the Commonwealth of Pennsylvania. Under this scheme, the aspiring parties candidates could be placed on the ballot provided that they gather a certain number of signatures and that these signatures be from 10 different counties (or from 5 counties for some offices) of Pennsylvania's 67 counties.
The issue was whether these county-requirements were unconstitutional vote dilution under the Equal Protection Clause.
Relying on Reynolds v. Sims (1964) and Gray v. Sanders (1963), the panel acknowledged that geographical inequalities in state voting violate the Fourteenth Amendment's Equal Protection Clause, a principle that was extended to signature-gathering requirements for ballot placement in Moore v. Ogilive (1969). The test, from the First Amendment case of Anderson v. Celebrezze (1983), which the court stated applied also to the equal protection context, required the court to
first consider the character and magnitude of the asserted injury to the rights protected . . . that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’ s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.
The court noted that county-based signature-gathering requirements have "fared poorly" under the Anderson doctrine and discussed cases, it was nevertheless true that in some instances these requirements survived. The focus should be on the "real-world impact" of the voting restrictions. And it is a fact-intensive one.
Looking at the district judge's order, which had been fashioned under significant time pressure before an upcoming election, the Third Circuit panel found the absence of fact-finding fatal. It therefore vacated and remanded the case, noting that the district judge could certainly issue the same or a similar injunction if it engaged in a fact-intensive analysis and found the restrictions constitutional under Anderson.
On remand, it may be difficult for the parties to muster the kind of evidence that would be necessary to demonstrate how the county-specific requirement for signatures satisfy precise state interests that are not undermined by vote dilution.