Constitution Party of Pennsylv, et al v. Carol Aichele, et al

Filing

PRECEDENTIAL OPINION Coram: AMBRO, JORDAN and ROTH, Circuit Judges. Total Pages: 54. Judge: JORDAN Authoring, Judge: AMBRO Dissenting.

Case: 13-1952

Document: 003111673726

Page: 1

Date Filed: 07/09/2014

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1952
_____________
THE CONSTITUTION PARTY OF PENNSYLVANIA;
THE GREEN PARTY OF PENNSYLVANIA; THE
LIBERTARIAN PARTY OF PENNSYLVANIA; JOE
MURPHY; JAMES N. CLYMER; CARL J. ROMANELLI;
THOMAS ROBERT STEVENS; KEN KRAWCHUK,
Appellants
v.
CAROL AICHELE; JONATHAN M. MARKS; ATTORNEY
GENERAL PENNSYLVANIA
CAROL SIDES; RICHARD J. TEMS; LOUIS NUDI;
DAMON KEGERISE; ANNE LAYNG; JUDITH GUISE,
(Intervenor-Defendants)
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-12-cv-02726)
District Judge: Hon. Lawrence F. Stengel
_______________

Case: 13-1952

Document: 003111673726

Page: 2

Date Filed: 07/09/2014

Argued
March 6, 2014
Before: AMBRO, JORDAN and ROTH, Circuit Judges.
(Filed: July 9, 2014)
_______________
Oliver B. Hall [ARGUED]
Center for Competitive Democracy
1835 16th St. N.W.
Washington, DC 20009
Counsel for Appellants
Sean A. Kirkpatrick
Sarah C. Yerger
Office of Attorney General of Pennsylvania
Strawberry Square – 15th Fl.
Harrisburg, PA 17120
Claudia M. Tesoro [ARGUED]
Office of Attorney General of Pennsylvania
21 S. 12th St.
Philadelphia, PA 19107
Counsel for Appellees, Carol Aichele,
Jonathan M. Marks, Attorney General Pennsylvania
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.

2

Case: 13-1952

Document: 003111673726

Page: 3

Date Filed: 07/09/2014

The Appellants, political groups in Pennsylvania and
several of their supporters, have invoked 42 U.S.C. § 1983 to
challenge the constitutionality of two provisions of
Pennsylvania’s election code that regulate ballot access,
namely title 25, sections 2911(b) and 2937 of Pennsylvania’s
Consolidated Statutes. Section 2911(b) and a similar section,
§ 2872.2(a), require that candidates seeking to be included on
the general election ballot – other than Republicans and
Democrats – must submit nomination papers with a specified
number of signatures. Section 2937 allows private actors to
object to such nomination papers and have them nullified, and
it further permits a Pennsylvania court, as that court deems
“just,” to impose administrative and litigation costs on a
candidate if that candidate’s papers are so rejected. The
Appellants contest an order of the United States District Court
for the Eastern District of Pennsylvania dismissing their
Complaint for lack of standing. We conclude that they do
have standing to pursue their constitutional claims, and we
will therefore reverse.
I.

Factual Background and Procedural History1

The Appellants are the Constitution Party of
Pennsylvania (“Constitution Party”), the Green Party of
Pennsylvania (“Green Party”), and the Libertarian Party of
Pennsylvania (“Libertarian Party”) (collectively, the “C.G.L.
Parties”); their respective chairmen – Joe Murphy, Carl
Romanelli, and Thomas Robert Stevens; James Clymer, a
1

In accordance with our standard of review, see infra
note 12, we set forth the facts in the light most favorable to
the Appellants.

3

Case: 13-1952

Document: 003111673726

Page: 4

Date Filed: 07/09/2014

member of the Constitution Party; and Ken Krawchuk, a
former candidate of the Libertarian Party. For ease of
reference we will refer to the Appellants collectively as
the“Aspiring Parties.”2 They filed the instant suit against the
Secretary of the Commonwealth of Pennsylvania, Carol
Aichele; the Commissioner of the Pennsylvania Bureau of
Commissions, Elections, and Legislation, Jonathan M. Marks;
and the Pennsylvania Attorney General (collectively, the
“Commonwealth”) in their official capacities only.3
2

Finding a shorthand term for the Appellants has been
a challenge. “Minor political parties” is a statutorily defined
term in Pennsylvania. 25 Pa. Cons. Stat. § 2872.2(a).
Despite referring to themselves as the “Minor Parties,” the
organizational Appellants are in fact not minor parties but are
“political bodies” for purposes of the election code because,
as more fully explained herein, they did not attain a statutory
threshold of votes in the 2010 election. The term “party” also
has an equivocal character, indicating both a political party
and a litigant in a lawsuit. Thus, we have created our own
term. We use it only to capture the idea that both the
individual Appellants and the organizational Appellants
aspire to full political participation.
3
When the Complaint was filed, the Attorney General
was Linda L. Kelly. The current Attorney General is
Kathleen G. Kane. The Commonwealth argues that the
Attorney General should not have been named as a defendant
because she “does not have a discrete role in administering
the Pennsylvania Election Code.” (Appellees’ Br. at 33.) We
agree. The Aspiring Parties’ Complaint only asserts that the
Attorney General is the “chief legal and law enforcement
officer” of Pennsylvania, and it makes no allegations
regarding her role in the electoral process. (J.A. at 35.)

4

Case: 13-1952

Document: 003111673726

Page: 5

Date Filed: 07/09/2014

To understand the parties’ dispute, a brief sketch of the
statutory background is necessary.
A.

Pennsylvania’s Electoral Scheme

Pennsylvania’s election code distinguishes between
“political parties” and “political bodies.” 25 Pa. Cons. Stat.
§ 2831. An organization qualifies as a “political party” if one
of its candidates polled at least two percent of the largest
entire vote cast in each of at least ten counties and “polled a
total vote in the State equal to at least two per centum of the
largest entire vote cast in the State for any elected candidate.”
Id. § 2831(a). Political parties may in turn be categorized as
either major or minor parties, depending on their statewide
voter registration. Id. §2872.2(a); Rogers v. Corbett, 468
F.3d 188, 190-91 (3d Cir. 2006). Major parties are defined by
exclusion as those that are not minor political parties under
the election code, and minor parties are defined as those
whose statewide registration is less than fifteen percent of the
total statewide registration for all political parties. 25 Pa.
Cons. Stat. § 2872.2(a). At present, there are only two major
parties in Pennsylvania, the Democratic Party and the
Republican Party, as has been the case since the election code
was enacted more than three-quarters of a century ago.
“Political bodies” are organizations that did not have a
candidate who crossed the two-percent threshold in the last
election, and so they do not qualify for the benefits of being a
minor party, let alone a major one. Id. § 2831(a).
Accordingly, we will direct that, on remand, all claims
against the Attorney General be dismissed.

5

Case: 13-1952

Document: 003111673726

Page: 6

Date Filed: 07/09/2014

One of the most basic goals of a political organization,
and the one for which the Aspiring Parties are contending in
this case, is to have its candidates listed on the general
election ballot. Major parties get to place their candidates on
the general election ballot through a publicly-funded primary
process.4 See id. § 2862. Minor parties and political bodies
(which we will sometimes refer to together as “non-major
parties”) have to go through a signature-gathering campaign
to have their nominees appear on the general election ballot,
but minor parties are at least able to access benefits under the
election code “with respect to special elections, voter
registration forms, [and] substituted nominations,” id.
§ 2872.2. Ultimately, the distinction between minor parties
and political bodies is of less consequence in this case than is
the distinction between major parties and non-major parties,
since all non-major parties face essentially the same fight to
get their candidates on the ballot through the submission of
nominating papers. It is the rules governing that process that
are the focus of the Aspiring Parties’ Complaint.

4

To appear on the primary ballot, candidates from
major parties must submit a certain number of valid
signatures depending on the office sought. 25 Pa. Cons. Stat.
§ 2872.1. The largest number of signatures required for
primary ballot access is 2,000 for candidates seeking offices
such as President of the United States and Governor of the
Commonwealth of Pennsylvania. Id. The winner of the
primary election automatically appears on the general election
ballot as the candidate of his or her respective major party.
Id. § 2882.

6

Case: 13-1952

Document: 003111673726

Page: 7

Date Filed: 07/09/2014

To appear on the general election ballot, minor parties
and political bodies are required to file nomination papers
with the Secretary of the Commonwealth.5 See id. §§ 2872.2
(“Nominations by minor political parties”), 2911
(“Nominations by political bodies”); Rogers, 468 F.3d at 191.
Successful nomination papers for a statewide office must
include valid signatures equal to two percent of the vote total
of the candidate with the highest number of votes for any
state-wide office in the previous election. 25 Pa. Cons. Stat.
§ 2911(b).6 After being filed, the nomination papers are
5

Although the Aspiring Parties refer to “nominating
petitions,” we will use the statutory term “nomination papers”
found in § 2911. Under the election code, major party
candidates file “nomination petitions” to appear on the
primary ballot. 25 Pa. Cons. Stat. § 2872.1. However,
candidates of minor political parties and political bodies file
“nomination papers” to appear on the general election ballot.
Id. §§ 2911(b), 2872.2. Although the terms are sometimes
used interchangeably, as in certain quotes from the briefings
and declarations before us, we will adhere to the statutory
distinction as much as possible.
6

25 Pa. Cons. Stat. § 2911(b) provides in relevant part:

Where the nomination is for any office to be
filled by the electors of the State at large, the
number of qualified electors of the State signing
such nomination paper shall be at least equal to
two per centum of the largest entire vote cast
for any elected candidate in the State at large at
the last preceding election at which State-wide
candidates were voted for.

7

Case: 13-1952

Document: 003111673726

Page: 8

Date Filed: 07/09/2014

examined by the Secretary of the Commonwealth, who must
reject the filing of any submission that “contains material
errors or defects apparent on [its] face … or on the face of the
appended or accompanying affidavits; or … contains material
alterations made after signing without the consent of the
signers; or … does not contain a sufficient number of
signatures as required by law.” Id. § 2936.
Even after being accepted by the Secretary, however,
the papers can be subjected to further examination if a private
party files an objection.7 In particular, the election code
provides in § 2937 that
[a]ll nomination petitions and papers received
and filed … shall be deemed to be valid, unless,
within seven days after the last day for filing
said nomination petition or paper, a petition is
presented to the court specifically setting forth

25 Pa. Cons. Stat. § 2911(b). The non-major party candidates
have approximately five months to circulate nomination
papers from before the state-run primary to August 1 of the
election year. Rogers, 468 F.3d at 191.
7

This process also applies to the nomination petitions
filed by major political parties to be placed on the primary
ballot. 25 Pa. Cons. Stat. §§ 2936, 2937. The Pennsylvania
Supreme Court has held that despite using the word
“petition,” § 2937 applies to both nomination petitions and
nomination papers. In re Nader, 905 A.2d 450, 458 (Pa.
2006).

8

Case: 13-1952

Document: 003111673726

Page: 9

Date Filed: 07/09/2014

the objections thereto, and praying that the said
petition or paper be set aside.
Id. § 2937. If any objections are filed pursuant to § 2937, the
Commonwealth Court reviews and holds a hearing on the
objections and determines whether the candidate’s name will
be placed on the ballot.8 Id. Of special importance to the
8

Section 2937 provides for the full process by which a
nomination petition or nomination paper is challenged:
A copy of said petition shall, within said period,
be served on the officer or board with whom
said nomination petition or paper was filed.
Upon the presentation of such a petition, the
court shall make an order fixing a time for
hearing which shall not be later than ten days
after the last day for filing said nomination
petition or paper, and specifying the time and
manner of notice that shall be given to the
candidate or candidates named in the
nomination petition or paper sought to be set
aside. On the day fixed for said hearing, the
court shall proceed without delay to hear said
objections, and shall give such hearing
precedence over other business before it, and
shall finally determine said matter not later than
fifteen (15) days after the last day for filing said
nomination petitions or papers. If the court shall
find that said nomination petition or paper is
defective under the provisions of section 976, or
does not contain a sufficient number of genuine
signatures of electors entitled to sign the same

9

Case: 13-1952

Document: 003111673726

Page: 10

Date Filed: 07/09/2014

present dispute is that, when an objection is successful and a
nomination petition or paper is dismissed, “the court shall
make such order as to the payment of the costs of the
proceedings, including witness fees, as it shall deem just.” Id.
The Pennsylvania Supreme Court has held that, under § 2937,
“an award of costs … is not warranted solely on the basis that
the party prevailed”; there must be some further reason, and it
is an abuse of discretion for a lower court to award such costs
“without identifying any reason specific to [the] case or …
why justice would demand shifting costs to them.” In re
Farnese, 17 A.3d 357, 369-70 (Pa. 2011). At the same time,
however, the court held that, while “fraud, bad faith, or gross
misconduct … may require an award of costs,” “a party’s
conduct need not proceed to such an extreme before” costs
can be shifted. Id. at 372. Thus, under § 2937, costs may be
awarded to the person opposing nomination papers if there is
some showing that it would be “just” to do so, despite there

under the provisions of this act, or was not filed
by persons entitled to file the same, it shall be
set aside. If the objections relate to material
errors or defects apparent on the face of the
nomination petition or paper, the court, after
hearing, may, in its discretion, permit
amendments within such time and upon such
terms as to payment of costs, as the said court
may specify. In case any such petition is
dismissed, the court shall make such order as to
the payment of the costs of the proceedings,
including witness fees, as it shall deem just.
25 Pa. Cons. Stat. § 2937 (footnote omitted).

10

Case: 13-1952

Document: 003111673726

Page: 11

Date Filed: 07/09/2014

being no “fraud, bad faith, or gross misconduct” on the part of
the candidate whose papers were challenged.9 Id.
Finally, a political organization may also lose its status
as a political party. If it does not meet the two percent
threshold, it descends again to the status of political body.
See 25 Pa. Cons. Stat. § 2831(a). Therefore, if a political
party fielded no candidate in a general election or if its
candidates received support from less than two percent of the
highest vote-getter, it would qualify only as a political body
in the following election. Id.
Sections 2911 and 2937 became law in 1937. Section
2911 was amended in 1971 to increase the percentage of
signatures required, see People’s Party v. Tucker, 347 F.
Supp. 1, 2 & n.2 (M.D. Pa. 1972), and § 2937 was, in 2011,
the subject of an important interpretive opinion by the
Pennsylvania Supreme Court, In re Farnese, 17 A.3d at 359.
The Aspiring Parties have extensive experience with these
statutes, having collected signatures, defended nomination
papers, and been placed on and struck from election ballots at
various times in the past decade.
B.

Recent Elections

9

In In re Nader, the Pennsylvania Supreme Court
determined that the language of § 2937 “discusses both
nomination petitions and petitions to set aside a nomination
petition. Thus, the court can impose costs, as justice requires,
when either the nominating petition is set aside or the petition
to set aside the nomination petition is dismissed.” In re
Nader, 905 A.2d at 458 (quoting In re Lee, 578 A. 2d 1277,
1279 n.3 (1990)).

11

Case: 13-1952

Document: 003111673726

Page: 12

Date Filed: 07/09/2014

In the 2002, 2004, and 2006 elections, the C.G.L.
Parties were each “qualified minor parties … because each
party had a candidate on the preceding general election ballot
who polled the requisite number of votes.” (Appellants’
Opening Br. at 9.)
In 2004, however, independent
presidential candidate Ralph Nader and his running mate
were ordered to pay $81,102.19 in costs under § 2937,
following a court determination that their Pennsylvania
“signature-gathering campaign involved fraud and deception
of massive proportions.” In re Nader, 905 A.2d 450, 460 (Pa.
2006). That ruling appears to mark the first time costs were
ever imposed pursuant to § 2937, and the reverberations from
that decision have been significant.
According to the Aspiring Parties, the Nader decision
worked a transformation in how § 2937 is understood and
applied. The threat of extraordinary costs like those involved
in Nader “caused several minor party candidates either to
withhold or withdraw their nomination petitions” during the
2006 election cycle. (J.A. at 39.) For example, in a
declaration filed in this case, Appellant Krawchuk stated that,
although the Libertarian Party nominated him as its candidate
for United States Senate in 2006, he declined to run “due to
the fact that … Ralph Nader and his running mate … had
recently been ordered to pay $81,102.19.” (Id. at 90-91.)
Similarly, Christina Valente, the Green Party’s nominee for
Lieutenant Governor in 2006, stated in her declaration that,
“after a challenge was filed against me …[,] I withdrew from
the race. My decision to withdraw was based entirely on the
fact that I was unwilling to assume the risk of incurring
litigation costs pursuant to 25 P.S. § 2937.” (Id. at 78.)

12

Case: 13-1952

Document: 003111673726

Page: 13

Date Filed: 07/09/2014

Thus in 2006, “only one minor party candidate [ran]
for statewide office,” Appellant Romanelli, the Green Party’s
nominee for United States Senate. (J.A. at 39) Based on the
votes cast in the 2004 general election, Romanelli had to
obtain 67,070 valid signatures to get on the ballot in 2006.
He submitted 93,829 signatures but was removed from the
ballot following a successful objection filed pursuant to §
2937 by private parties affiliated with the Democratic Party.
Romanelli was ordered to pay costs totaling $80,407.56. In
re Rogers, 942 A.2d 915, 930 (Pa. Commw. Ct. 2008). The
Commonwealth Court found that costs were warranted due to
the failure of Romanelli’s campaign and the Green Party to
comply with certain court orders, including an order to
provide nine people to assist in the review of the nominating
signatures10 and an order to timely provide the court with the
10

The review of the Romanelli signatures was
facilitated by the Statewide Uniform Registry of Electors
(“SURE”) computer system. The Commonwealth Court
ordered that
[e]ach party shall have present at that time at
least nine individuals, in addition to counsel,
who are capable of performing computer
searches. These individuals will be given a short
training session by Department personnel on
how to perform SURE system searches. With
the assistance of court personnel, the designated
individuals of each party shall commence a
review of the challenged signatures and shall
tabulate, with the assistance of counsel, the
numbers of challenged signatures found to be
valid and those found to be invalid.

13

Case: 13-1952

Document: 003111673726

Page: 14

Date Filed: 07/09/2014

“specifics of what stipulated invalid signatures [Romanelli]
believed could be rehabilitated.” Id. at 929.
Therefore, because of candidates withdrawing their
nomination papers and the successful challenge to
Romanelli’s nomination papers, the C.G.L Parties fielded no
candidates for statewide office in the 2006 election. That
meant that, under 25 Pa. Cons. Stat. § 2831(a), none of the
C.G.L. Parties qualified as minor parties leading up to the
2008 election. They became, instead, political bodies.
In the 2008 election, while the Libertarian Party was
able to collect the requisite number of signatures – and those
signatures went unchallenged – and to place candidates on the
general election ballot, the Constitution and Green Parties
were again unable to get any candidates on the ballot. The
chairman of the Constitution Party stated in his declaration
that, following the 2006 election, his party could not recruit
any candidates “willing to submit nomination petitions and
thereby risk incurring litigation costs pursuant to 25 P.S.
§ 2937.” (J.A. at 53.) Supporters of that party were also
unwilling to donate time and resources to electioneering.
Likewise, the chairwoman of the Green Party in 2008 and
2010 stated that her party was unable to regain minor-party
status because of the effect that § 2937 challenges and costs
had on member morale. She declared that, as Statewide
Petition Coordinator for 2012, she “continue[d] to encounter
serious difficulty in recruiting petitioners,” many of whom

In re Rogers, 942 A.2d 915, 920 (Pa. Commw. Ct. 2008).

14

Case: 13-1952

Document: 003111673726

Page: 15

Date Filed: 07/09/2014

refused to participate in nomination drives because they
believe that § 2937 “renders petitioning futile.” (Id. at 63.)
In 2010, the C.G.L. Parties again resumed the
nomination signature gathering process. The Democratic and
Republican parties or their “allies” were allegedly behind
objections to the nomination papers of the Green and
Libertarian Parties. (Id. at 41.) The Aspiring Parties point to
a challenge to the Libertarian Party’s nomination papers as an
example of the kinds of threats of financial ruin used by the
major parties to shut down competing political activity. The
former chair of the Libertarian Party asserts that his party had
submitted “more than the 19,056 valid signatures required”
under § 2911(b) for its candidates for Governor, Lieutenant
Governor, and United States Senator but that the party
“withdrew the petitions after three Republican voters, aided
by the Pennsylvania Republican Party, challenged them.” (Id.
at 83 (declaration of then-party chair Michael Robertson).)
An email from the challengers’ attorney, quoted in the
Aspiring Parties’ Complaint, was hardly subtle:
Following up on our conversation earlier this
morning, I do not have exact figures on what
our costs would be if this signature count
continues and my clients are required to
complete the review and/or move forward with
a hearing. However, a rough estimate would be
$92,255 to $106,455 … . These costs are
comparable to the costs awarded in recent years
by the Commonwealth Court in similar
nomination paper challenges … . Please let me
know if you need any further information in
order to discuss with your clients a withdrawal

15

Case: 13-1952

Document: 003111673726

Page: 16

Date Filed: 07/09/2014

of their candidacy… . As I stated, the sooner
that your clients agree to withdraw the more
likely my clients will agree to not pursue
recovery of all their costs incurred in pursuing
this matter.
(Id. at 87.)
The Libertarian Party candidates responded by
withdrawing their nomination papers because “they were
unable to assume the risk of incurring the costs,” and the
party “lacked the financial resources to indemnify them.” (Id.
at 84.) Accordingly, no Libertarian Party candidate appeared
on the 2010 ballot.
The Green Party’s 2010 United States Senate
candidate, Melvin Packer, likewise withdrew his nomination
papers following a challenge from Democratic senate
candidate Joe Sestak because, Packer said, he “could not
afford to have costs assessed against [him] pursuant to
Section 2937.” (Id. at 73.) The Constitution Party’s nominee
for Governor, John Krupa, “refused to submit [his]
Nominating Papers” and “thereby risk incurring litigation
costs pursuant to … § 2937.” (Id. at 56.) As in 2006, “no
candidate for statewide office, except the Republican and
Democrat, appeared on Pennsylvania’s 2010 general election
ballot.”11 (Id. at 43.)

11

The events of the 2012 election cycle are intertwined
with the procedural history of this case and are accordingly
addressed in the portion of the opinion dealing with that
history. See infra Part I.D.

16

Case: 13-1952

Document: 003111673726

C.

Page: 17

Date Filed: 07/09/2014

Allegations Regarding Future Elections

The Aspiring Parties’ Complaint and the
accompanying declarations also contain allegations about the
anticipated impact of Pennsylvania’s electoral scheme on
future elections. Those allegations include, but are not
limited to, the following.
Appellant Krawchuk, the Libertarian Party nominee
for United States Senate in 2006, declared that he would “no
longer run for statewide office … as long as [he] must assume
the risk of incurring costs pursuant to Section 2937.” (J.A. at
91.) Despite being asked by party members, Krawchuk
refused to run as the party’s nominee in 2014 because § 2937
remains in effect.
Likewise, Kat Valleley, who was the Libertarian
Party’s 2010 nominee for Lieutenant Governor but withdrew
her candidacy after an objection was filed, declared that
“[she] will no longer run for office as a nominee of [the
Libertarian Party], as long as [she] must assume the risk of
incurring costs pursuant to Section 2937.” (Id. at 97.)
In addition, the Aspiring Parties allege that candidates
are not the only ones affected. Bob Small, Co-Chair of the
Green Party’s Delaware County Chapter and a nomination
drive participant in 2004, 2006, 2008, and 2010, stated that he
would not participate in any future petition drives as long as
the party’s candidates face the threat of litigation.
D.

Procedural History

17

Case: 13-1952

Document: 003111673726

Page: 18

Date Filed: 07/09/2014

The Aspiring Parties brought this action on May 17,
2012, in the middle of signature drives to place C.G.L. Party
candidates on the 2012 general election ballot. They allege in
their Complaint that “Pennsylvania’s ballot access scheme
violated rights guaranteed to them by the First and Fourteenth
Amendments of the United States Constitution, by forcing
them to assume the risk of incurring substantial financial
burdens if they defend nomination petitions they are required
by law to submit.” (Id. at 31.) Count I alleges that
§§ 2911(b) and 2937 violate the Aspiring Parties’ “freedoms
of speech, petition, assembly, and association for political
purposes” under the First and Fourteenth Amendments by
imposing substantial financial burdens on them to defend
their nomination papers. (Id. at 46-47.) Count II alleges that
§§ 2911(b) and 2937 violate the Aspiring Parties’ right to
equal protection under the Fourteenth Amendment by
requiring them to bear the costs of validating nomination
papers, while Republican and Democratic Party candidates
are placed on the general election ballots automatically and
by means of publicly funded primary elections. Count III
alleges that § 2937 is unconstitutional on its face for
authorizing the imposition of costs against candidates, even if
they do not engage in misconduct, thereby chilling First
Amendment rights to freedom of speech, petition, assembly,
and association. The Aspiring Parties seek a declaratory
judgment in keeping with their allegations, as well as
injunctive relief to prevent the Commonwealth “from
enforcing the signature requirement imposed by 25 P.S.
§ 2911(b).” (Id. at 50.) They attached 13 declarations to their
Complaint and submitted an additional four declarations
during the pendency of proceedings in the District Court.

18

Case: 13-1952

Document: 003111673726

Page: 19

Date Filed: 07/09/2014

On August 1, 2012, the C.G.L. Parties each submitted
nomination papers to the Secretary of the Commonwealth as
required under the election code. No objection was brought
with respect to papers filed by the Green Party, but private
individuals, who were eventually allowed to intervene as
defendants in this case, challenged the nomination papers of
the Constitution and Libertarian Parties. In response to those
challenges, the Aspiring Parties filed a Motion for a
Temporary Restraining Order or Preliminary Injunction in the
District Court on the basis that the threat of costs would force
them to withdraw the nomination papers if the challenges
were allowed to proceed.
During the pendency of that motion, the Constitution
Party withdrew from the election because, according to the
Aspiring Parties, it was unable to comply with a state court
order requiring that it provide 20 individuals to assist in the
signature review process.
On October 10, 2012, the
Commonwealth Court found that the Libertarian Party had
presented a sufficient number of valid signatures and
dismissed the objection to its nomination papers.
The Commonwealth then filed a motion to dismiss this
case under Rule 12(b) of the Federal Rules of Civil
Procedure. The District Court granted the motion and
dismissed the Complaint for lack of standing under Rule
12(b)(1). It denied the preliminary injunction motion as
moot. This timely appeal followed.
II.

Discussion12
12

We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291. Whether the District Court had jurisdiction is the

19

Case: 13-1952

Document: 003111673726

Page: 20

Date Filed: 07/09/2014

Article III of the United States Constitution limits the
scope of federal judicial power to the adjudication of “cases”
and “controversies.” U.S. Const. art. III, § 2. A fundamental
safeguard of that limitation is the doctrine of standing. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(“[T]he core component of standing is an essential and
unchanging part of the case-or-controversy requirement of
Article III.”). Only a party with standing can invoke the
jurisdiction of the federal courts. At present, the only
question for decision is whether the Aspiring Parties have
standing – that is, do they even have the right to be heard.
We emphasize at the outset that we are not prejudging
the merits of the case. We do not minimize the precedent
supporting a state’s rational interest in preventing voter
confusion, avoiding ballot clutter, and ensuring viable
candidates by limiting ballot access. See Jenness v. Fortson,
403 U.S. 431, 442 (1971) (upholding Georgia’s 5% signature
requirement to appear on the general election ballot); Rogers,
468 F.3d at 195 (upholding § 2911(b)’s 2% signature
requirement to appear on the general election ballot as a
issue before us. We exercise plenary review over all
jurisdictional questions, including those related to standing.
Belitskus v. Pizzingrilli, 343 F.3d 632, 639 (3d Cir. 2003).
Because we are dealing with a facial challenge to jurisdiction,
as more fully described herein, “we must accept as true all
material allegations set forth in the complaint, and must
construe those facts in favor of the complaining party.”
Storino v. Borough of Point Pleasant Beach, 322 F.3d 293,
296 (3d Cir. 2003).

20

Case: 13-1952

Document: 003111673726

Page: 21

Date Filed: 07/09/2014

minor party or political body); cf. Burdick v. Takushi, 504
U.S. 428, 441 (1992) (upholding Hawaii’s prohibition on
write-in voting). Nor do we discount the potential success of
the Aspiring Parties’ First Amendment claims. Cf. Anderson
v. Celebrezze, 460 U.S. 780, 793 (1983) (“A burden that falls
unequally on new or small political parties or on independent
candidates impinges, by its very nature, on association
choices protected by the First Amendment.”); Bullock v.
Carter, 405 U.S. 134, 149 (1972) (holding high filing fees
collected to finance primary elections unconstitutional);
Belitskus v. Pizzingrilli, 343 F.3d 632, 647 (3d Cir. 2003)
(holding
Pennsylvania’s
mandatory
filing
fees
unconstitutional as applied to indigent candidates). It would
be a sad irony indeed if the state that prides itself on being the
cradle of American liberty had unlawfully restrictive ballot
access laws. But we are not now concerned with which side
may win – a fact that makes much of the Commonwealth’s
briefing beside the point. (See, e.g., Appellees’ Br. at 23
(“[T]he constitutionality of § 2911(b) is not open to debate …
.”); id. at 40 (“[I]t is too late to question the validity of the
statutory petition requirement.”); id. at 42 (“This Court … has
already upheld § 2911(b), and Pennsylvania courts have
already found § 2937 constitutional.”).) The merits of the
Aspiring Parties’ claims are not before us, and, with that in
mind, we first consider the standard of review that the District
Court should have applied in addressing the question of
standing.
A.

Rule 12(b)(1) Standard

The District Court dismissed the Aspiring Parties’
Complaint under Rule 12(b)(1) of the Federal Rules of Civil
Procedure. “A motion to dismiss for want of standing is ...

21

Case: 13-1952

Document: 003111673726

Page: 22

Date Filed: 07/09/2014

properly brought pursuant to Rule 12(b)(1), because standing
is a jurisdictional matter.” Ballentine v. United States, 486
F.3d 806, 810 (3d Cir. 2007). A district court has to first
determine, however, whether a Rule 12(b)(1) motion presents
a “facial” attack or a “factual” attack on the claim at issue,
because that distinction determines how the pleading must be
reviewed. In re Schering Plough Corp. Intron, 678 F.3d 235,
243 (3d Cir. 2012) (citing Mortensen v. First Fed. Sav. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).
A facial attack, as the adjective indicates, is an
argument that considers a claim on its face and asserts that it
is insufficient to invoke the subject matter jurisdiction of the
court because, for example, it does not present a question of
federal law, or because there is no indication of a diversity of
citizenship among the parties, or because some other
jurisdictional defect is present. Such an attack can occur
before the moving party has filed an answer or otherwise
contested the factual allegations of the complaint. See
Mortensen, 549 F.2d at 889-92 (noting the distinction
between a facial attack and a “factual evaluation,” which
“may occur at any stage of the proceedings, from the time the
answer has been served until after the trial has been
completed.” (emphasis added) (footnote omitted)). A factual
attack, on the other hand, is an argument that there is no
subject matter jurisdiction because the facts of the case – and
here the District Court may look beyond the pleadings to
ascertain the facts – do not support the asserted jurisdiction.
So, for example, while diversity of citizenship might have
been adequately pleaded by the plaintiff, the defendant can
submit proof that, in fact, diversity is lacking. See id. at 891
(“[T]he trial court is free to weigh the evidence … and the
existence of disputed material facts will not preclude the trial

22

Case: 13-1952

Document: 003111673726

Page: 23

Date Filed: 07/09/2014

court from evaluating for itself the merits of jurisdictional
claims.”). In sum, a facial attack “contests the sufficiency of
the pleadings,” In re Schering Plough Corp., 678 F.3d at 243,
“whereas a factual attack concerns the actual failure of a
[plaintiff’s] claims to comport [factually] with the
jurisdictional prerequisites.” CNA v. United States, 535 F.3d
132, 139 (3d Cir. 2008) (internal quotation marks omitted)
(alterations in original).
In reviewing a facial attack, “the court must only
consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff.” In re Schering Plough Corp., 678
F.3d at 243 (quoting Gould Elecs. Inc. v. United States, 220
F.3d 169, 176 (3d Cir. 2000)) (internal quotation marks
omitted). Thus, a facial attack calls for a district court to
apply the same standard of review it would use in considering
a motion to dismiss under Rule 12(b)(6), i.e., construing the
alleged facts in favor of the nonmoving party. Id. This is in
marked contrast to the standard of review applicable to a
factual attack, in which a court may weigh and “consider
evidence outside the pleadings.” Gould Elecs. Inc., 220 F.3d
at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79
(3d Cir. 1997)).
The District Court here construed the Aspiring Parties’
motion to dismiss as a “factual attack” and said that, “to the
extent that certain of the plaintiffs’ jurisdictional allegations
are challenged on the facts, those claims receive no
presumption of truthfulness.” Constitution Party v. Aichele,
No. 12-2726, 2013 WL 867183, at *4 (E.D. Pa. Mar. 8,
2013). That was error. The Commonwealth filed the attack
before it filed any answer to the Complaint or otherwise

23

Case: 13-1952

Document: 003111673726

Page: 24

Date Filed: 07/09/2014

presented competing facts. Its motion was therefore, by
definition, a facial attack. Mortensen, 549 F.2d at 892 n.17
(“A factual jurisdictional proceeding cannot occur until
plaintiff’s allegations have been controverted.”). A factual
attack requires a factual dispute, and there is none here. See
Int’l Ass’n of Machinists & Aerospace Workers v. Nw.
Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1982)
(“[Defendant’s] motion was supported by a sworn statement
of facts. It therefore must be construed as a factual, rather
than a facial attack … .”). As the Commonwealth itself said
in its Answering Brief on appeal, “the actual facts of this case
were not contested in any real sense.” (Appellee’s Br. at 27.)
The motion was thus a facial attack on subject matter
jurisdiction, and the Aspiring Parties were entitled to the
more generous standard of review associated with such an
attack. Cf. Askew v. Church of the Lord Jesus Christ, 684
F.3d 413, 417 (3d Cir. 2012) (“As the defendants had not
answered and the parties had not engaged in discovery, the
first motion to dismiss was facial.”); Mortensen, 549 F.2d at
891 (“The facial attack does offer … safeguards to the
plaintiff: the court must consider the allegations of the
complaint as true.”). The Commonwealth conceded the
District Court’s error in this regard, stating at oral argument
that the motion to dismiss “was made initially as a facial
attack.” Oral Arg. Tr. at 36:14-15.
Nevertheless, the Commonwealth argues that the
District Court’s error was merely one of terminology and was
harmless.13 The Aspiring Parties point out obvious problems
13

The Commonwealth also argues that, “[b]y filing
their motion for injunctive relief, the [C.G.L. Parties]
themselves caused this case to advance beyond the pleading

24

Case: 13-1952

Document: 003111673726

Page: 25

Date Filed: 07/09/2014

with that assertion. They rightly note that the District Court
rejected some facts as “conjectural or hypothetical” and
declared that it was “not persuaded” by certain allegations,
Constitution Party, 2013 WL 867183, at *7, none of which
could have occurred if the Court had accepted the allegations
in the Complaint and the supporting declarations as true.14
For instance, the Court stated that, “[a]lthough the plaintiffs
blame their recruitment difficulties on the possibility of being
assessed fees and costs, they provide nothing more than
conjecture and conclusory assertions as support.” Id. at *8.
But that is simply not so. The Aspiring Parties provided 13
declarations, which, taken as true, establish that candidates
from the C.G.L. Parties have not run for office precisely
because of the threat that, under § 2937, they would be
saddled with the high costs of litigating over nomination
papers that must be submitted under § 2911(b). For example,
stage” such that “the district court was entitled to take …
additional information … into account in its standing
analysis” and might have been justified in viewing the
challenge to jurisdiction as a factual rather than facial attack.
(Appellees’ Br. at 26.) That reasoning is at odds with the
Commonwealth’s concession that the facts are not disputed.
The Aspiring Parties’ argument is that the District Court did
not credit their factual allegations or the additional
information in their declarations. That argument remains
unrebutted.
14

The Commonwealth is correct, however, that the
District Court, while required to accept “factual assertions …
[that] plausibly suggest an entitlement to relief,” is not
required to accept “bare assertions,” Ashcroft v. Iqbal, 556
U.S. 662, 681 (2009), or legal conclusions. Id. at 678.

25

Case: 13-1952

Document: 003111673726

Page: 26

Date Filed: 07/09/2014

Krawchuk, though he had been a candidate before, expressly
declared that he would “no longer run for statewide office …
as long as [he] must assume the risk of incurring costs
pursuant to Section 2937.” (J.A. at 91.)
Particularly telling is the District Court’s comment that
it was “not persuaded” by the allegations that “future
candidates will be assessed costs.” Constitution Party, 2013
WL 867183, at *7. The words “not persuaded” betray a foray
into fact-finding which, in the review of a facial attack on
subject matter jurisdiction, the District Court was not entitled
to undertake. Moreover, the District Court misapprehended
the Aspiring Parties’ argument. It is not, as the Court viewed
it, simply that future costs may be assessed, but rather that the
threat of high costs has imposed, and will continue to impose,
a real and chilling effect on political activity. The Aspiring
Parties allege and have adduced proof –uncontroverted at this
stage – that Pennsylvania’s election scheme provoked, and
will continue to provoke, costly major party challenges to the
Aspiring Parties’ efforts to field candidates.15 The effects are
not merely a matter of conjecture. Despite attaining minorparty status and a place on the ballot in 2008, all of the
Libertarian Party candidates withdrew their 2010 nomination

15

The likelihood of future legal challenges is hardly
farfetched. The undisputed facts establish that the nomination
papers of candidates representing one or more of the C.G.L.
Parties have been challenged in all but one election cycle for
the past decade. Taking that history in the light most
favorable to the Aspiring Parties sufficiently establishes, for
purposes of overcoming a facial attack, that they would face
similar obstacles in the future.

26

Case: 13-1952

Document: 003111673726

Page: 27

Date Filed: 07/09/2014

papers after receiving a direct threat from a lawyer
representing challengers allied with a major party.
The District Court did not review the Complaint in the
light most favorable to the Aspiring Parties, and that resulted
in an incorrect standing analysis. The question remains,
however, whether the Aspiring Parties’ allegations, if
accepted, meet the legal requirements for standing. As that
calls for a purely legal analysis, we proceed with it now rather
than remanding the question to the District Court. See
Chester ex rel. NLRB v. Grane Healthcare Co., 666 F.3d 87,
100 (3d Cir. 2011) (declining to remand, despite the district
court’s legal error, where the undisputed facts in the record
allowed for a conclusive analysis under the correct legal
standard).
B.

Standing

“The standing inquiry … focuse[s] on whether the
party invoking jurisdiction had the requisite stake in the
outcome when the suit was filed.” Davis v. FEC, 554 U.S.
724, 734 (2008). To establish that stake, a plaintiff must
show three elements: injury-in-fact, causation, and
redressability. In the seminal standing opinion Lujan v.
Defenders of Wildlife, the Supreme Court described those
elements as follows:
First, the plaintiff must have suffered an “injury
in fact” – an invasion of a legally protected
interest which is (a) concrete and particularized,
and (b) “actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Second, there must be a causal
connection between the injury and the conduct

27

Case: 13-1952

Document: 003111673726

Page: 28

Date Filed: 07/09/2014

complained of – the injury has to be “fairly ...
trace[able] to the challenged action of the
defendant, and not … th[e] result [of] the
independent action of some third party not
before the court.” Third, it must be “likely,” as
opposed to merely “speculative,” that the injury
will be “redressed by a favorable decision.”
504 U.S. at 560-61 (alterations in original) (citations omitted).
The same elements must be examined with respect to each
individual claim advanced by the Aspiring Parties. See In re
Schering Plough Corp., 678 F.3d at 245 (“[A] plaintiff who
raises multiple causes of action ‘must demonstrate standing
for each claim he seeks to press.’” (quoting DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 352 (2006))).
In its review of the Complaint, the District Court relied
heavily on our unreported decision in Constitution Party of
Pennsylvania. v. Cortes, 433 F. App’x 89 (3d Cir. 2011).16 In
Cortes, the same political entities before us now, the C.G.L.
Parties, filed a complaint in the United States District Court
for the Eastern District of Pennsylvania that challenged,
among other things, the constitutionality of § 2937.17 Id. at
16

We are cognizant of our Internal Operating
Procedure No. 5.7, which states that “by tradition [we] do[]
not cite to [our] not precedential opinions as authority.” Here
we do not cite Constitution Party of Pennsylvania. v. Cortes,
433 F. App’x 89 (3d Cir. 2011) because it serves as authority
but because it is the foundation of the District Court’s
opinion, and, as such, we must refer to it.
17

The plaintiffs in Cortes also challenged § 2872.2,

28

Case: 13-1952

Document: 003111673726

Page: 29

Date Filed: 07/09/2014

91. The district court dismissed the complaint on standing and
ripeness grounds, and we affirmed on standing alone. Id. at
93. While Cortes included a challenge to § 2937 by some of
the same parties before us now, it is without precedential
effect. Even if it had precedential value, though, it presented
quite different circumstances because the complaint in that
case lacked the specificity and the supporting declarations
present here, see id. at 93 (“[T]here is simply no allegation in
the Amended Complaint, other than conclusory assertions …
.”). Despite that crucial difference, the District Court adopted
the analysis from Cortes and held that the Aspiring Parties
cannot be heard because they did not establish the injury and
causation elements of standing. Constitution Party, 2013 WL
867183, at *8.
The Aspiring Parties argue that the District Court
erroneously dismissed their Complaint for lack of standing
and that the dismissal “is tantamount to holding Section
2911(b) and Section 2937 immune from judicial review.”
(Appellants’ Opening Br. at 19.) We agree.
1.

Injury-in-Fact

When standing is contested, “the injury-in-fact element
is often determinative.” In re Schering Plough Corp., 678
F.3d at 245 (quoting Toll Bros., Inc. v. Twp. of Readington,
555 F. 3d 131, 138 (3d Cir. 2009)) (internal quotation marks
omitted).
As earlier noted, injury-in-fact requires “an
invasion of a legally protected interest which is (a) concrete
which deals with the nomination papers of minor political
parties, not § 2911, which is challenged here and regulates the
nomination process for political bodies. 433 F. App’x at 90.

29

Case: 13-1952

Document: 003111673726

Page: 30

Date Filed: 07/09/2014

and particularized, and (b) actual or imminent, not conjectural
or hypothetical.” Lujan, 504 U.S. at 560-61 (citations
omitted) (internal quotation marks omitted). The injury
“must ‘affect the plaintiff in a personal and individual way.’”
In re Schering Plough Corp., 678 F.3d at 245 (quoting Lujan,
504 U.S. at 560 n.1). The Supreme Court has instructed that
“the injury required for standing need not be actualized. A
party facing prospective injury has standing to sue where the
threatened injury is real, immediate, and direct.” Davis, 554
U.S. at 734. However, “[p]ast exposure to illegal conduct
does not in itself show a present case or controversy
regarding injunctive relief … if unaccompanied by any
continuing, present adverse effects.” City of L.A. v. Lyons,
461 U.S. 95, 102 (1983) (second alteration in original)
(internal quotation marks omitted) (citation omitted); cf.
Reilly v. Ceridian Corp., 664 F.3d 38, 42 (3d Cir. 2011) (“A
plaintiff … lacks standing if his ‘injury’ stems from an
indefinite risk of future harms inflicted by unknown third
parties.”).
The District Court determined that the Aspiring
Parties’ alleged injury “could not be considered a real,
immediate, and direct injury.” Constitution Party, 2013 WL
867183, at *7 (internal quotation marks omitted). The Court
downplayed their claims as being based on “the possibility of
assessed costs,” and it characterized the threat of costs as
merely “conjectural or hypothetical.” Id. Further, the Court
stated that it was “not persuaded by the [Aspiring Parties’]
arguments that because non-major party candidates have been
assessed costs in the past, their future candidates will be
assessed costs.” Id. It also concluded that the Aspiring
Parties set forth no allegation that a Pennsylvania court would
actually assess costs against a candidate who does not engage
in misconduct. Id.

30

Case: 13-1952

Document: 003111673726

Page: 31

Date Filed: 07/09/2014

In all of that, the District Court overlooked the
Aspiring Parties’ allegations and evidence, as we have
already described. Moreover, it took no account of the
principle that the factual support needed “to establish
standing depends considerably upon whether the plaintiff is
himself an object of the action ... . If he is, there is ordinarily
little question that the action or inaction has caused him
injury … .” Lujan, 504 U.S. at 561-62; see also Antonin
Scalia, The Doctrine of Standing as an Essential Element of
the Separation of Powers, 17 Suffolk U. L. Rev. 881, 894
(1983) (“Thus, when an individual who is the very object of a
law’s requirement or prohibition seeks to challenge it, he
always has standing.”).
Here, the portions of the
Pennsylvania election code challenged by the Aspiring Parties
directly regulate the conduct of political bodies and their
candidates. 25 Pa. Cons. Stat. §2911 (“Nominations by
political bodies”); id. § 2937 (“Objections to nomination
petitions and papers”). Under § 2911(b), political bodies, i.e.,
organizations which, like the C.G.L. Parties, did not attain
two percent of the vote received by the statewide candidate
with the most votes in the prior election, are the explicit
objects of the nomination-paper requirements. The statute
sets forth what such organizations must do to appear on the
general election ballot. Thus, to say that the Aspiring Parties
are not objects of the scheme is untenable. That is especially
so since the Commonwealth’s merits arguments – which are
broadly referenced throughout its briefing – plainly
demonstrate that political bodies are indeed the target of
§ 2911(b), which operates in conjunction with § 2937.18 The
18

As mentioned above, § 2872.2 establishes the
nomination-paper mandate for minor political parties. It is

31

Case: 13-1952

Document: 003111673726

Page: 32

Date Filed: 07/09/2014

Commonwealth will contend on the merits, as it has in the
past, that Pennsylvania has an interest in preventing minor
political players from cluttering the ballot. See Rogers, 468
F.3d at 194 (“The state interests here are avoiding ballot
clutter and ensuring viable candidates.”). It is inconsistent to
the point of whiplash to suggest that minor players like the
Aspiring Parties are properly subject to the challenged
provisions because there is a legitimate government interest
in limiting their access to the ballot, id., but then to contend
in the standing context that those same provisions are not, in
fact, aimed at the very same parties.
In addition, the District Court gave little consideration
to noteworthy developments in Pennsylvania law in the last
ten years that affect our analysis here: first, highly publicized
awards of costs against would-be candidates; second, new
case law allowing such costs to be awarded despite the good
true that “both major party candidates seeking to appear on a
primary election ballot, and minor party candidates seeking to
appear on a November election ballot, are subject to § 2937.”
(Appellee’s Letter filed March 19, 2014.) That makes little
practical difference, however, as political bodies, such as the
Aspiring Parties, are the sole object of § 2911. Nor does it
matter under the language of Lujan if some few others are the
statutory objects of § 2937, as long as the plaintiffs
themselves are the object of the statute. See Lujan, 504 U.S.
at 561 (stating that the standing inquiry “depends
considerably upon whether the plaintiff is himself an object of
the action”). And, we will not be so blind as to ignore the
uncontested facts set forth in the Aspiring Parties’
declarations, which establish how § 2937 in practice has been
applied only to non-major parties.

32

Case: 13-1952

Document: 003111673726

Page: 33

Date Filed: 07/09/2014

faith efforts of people facing challenges to nomination papers;
and, third, repeated threats to pursue similar cost awards
against the C.G.L. Parties’ candidates.
As to the first point, it is no accident that this case
arises now. The Commonwealth itself highlights in its
briefing the recent increase in litigation surrounding
Pennsylvania’s election code, saying that “there are five
appellate decisions, rendered between 2006 and 2011, that
cannot be ignored.” (Appellees’ Br. at 11.) The Aspiring
Parties are not ignoring them and neither will we. It matters
greatly how § 2937 has been applied in the last decade, a
period in which that statute has been a vehicle for imposing
significant litigation expenses on non-major parties and their
candidates. Cf. Susan B. Anthony List v. Driehaus, 573 U.S.
__ (2014) (slip op., at 14) (finding injury-in-fact where there
was a substantial “threat of future enforcement,” noting that,
“[m]ost obviously, there is a history of past enforcement
here”).
Next, the Pennsylvania Supreme Court only recently
addressed the standard for deciding when to award costs
under § 2937. In In re Farnese, the court said that there are
various “factors relevant to the discretionary assessment of
whether to shift costs.” 17 A.3d at 372. It looked at the
statutory statement that when a nomination petition or paper
is dismissed, the costs of the proceedings associated with the
dismissal can be assessed against a candidate as is deemed
just, and it interpreted the word “just” to include cases of
“fraud, bad faith, or gross misconduct,” but not to be limited
to that kind of malfeasance. Id. In other words, it appears
that a candidate can proceed in good faith to seek a spot on
the ballot and still be subjected to high litigation costs.

33

Case: 13-1952

Document: 003111673726

Page: 34

Date Filed: 07/09/2014

Whether that interpretation of § 2937 leaves the standard for
cost shifting unconstitutionally vague and overbroad is yet
open to debate.19
What is not open to debate on the record before us,
viewed in the plaintiff-friendly light that it must be, is that the
award of costs in past cases has had a chilling effect on
protected First Amendment activity. Political actors have
used the recent precedents from Pennsylvania courts as a
cudgel against non-major parties and their candidates.
According to the Aspiring Parties, Democrats and
Republicans – acting strategically, as one would expect of
people in high-stakes political contests – have tried and will
continue to try to block anyone from the ballot box who
might strip votes from their favored candidates. As quoted
19

To bolster its determination that future harm was too
speculative, the District Court here also relied on the fact that,
in the two cases where costs were imposed pursuant to
§ 2937, “the Pennsylvania courts found that the candidates
had participated in fraud, bad faith, or similar inappropriate
conduct prior to assessing costs.” Constitution Party, 2013
WL 867183, at *7. The Court went on to state that “[t]he
Plaintiffs make no allegation a court will assess costs against
a candidate who acted in good faith.” Id. That statement
transforms the outcome in Farnese into the kind of bright-line
standard (good faith on one side and bad faith on the other)
that was expressly rejected by the Pennsylvania Supreme
Court. In re Farnese, 17 A.3d at 371. The Aspiring Parties’
argument is not that, under Farnese, courts will start
randomly ordering costs but that citizens do not know what
conduct will lead to such orders. It is the alleged uncertainty
itself that leads to the Aspiring Parties’ injury.

34

Case: 13-1952

Document: 003111673726

Page: 35

Date Filed: 07/09/2014

earlier, a shrewd lawyer engaged on behalf of three private
challengers affiliated with the Republican Party expressly
threatened to move for upwards of $100,000 in costs if the
Libertarian Party went forward with its nomination efforts.
Referencing Rogers and Nader, the lawyer said, “[t]hese costs
are comparable to the costs awarded in recent years by the
Commonwealth Court in similar nomination paper
challenges.” (J.A at 87.) The threat had the intended effect,
and the Libertarian Party withdrew its 2010 nomination
papers. The Democratic Party similarly pushed the Green
Party’s candidate out of the race for United States Senate in
2010, when the Democratic candidate filed a challenge
pursuant to § 2937. The threat of cost shifting, entirely
believable in light of recent history, chills the Aspiring
Parties’ electioneering activities.
That is the injury, and cogent precedent shows it to be
intolerable. In Susan B. Anthony List v. Driehaus, the
Supreme Court this term unanimously held that political
advocacy groups had established injury-in-fact, in part
because the threat of future prosecution, which was “bolstered
by the fact that authority to file a complaint” was not limited
to a government actor, could be used as a political tool.
Susan B. Anthony List, 573 U.S., at __ (slip op., at 14). The
Court stated that, “[b]ecause the universe of potential
complainants is not restricted to state officials who are
constrained by explicit guidelines or ethical obligations, there
is a real risk of complaint from, for example, political
opponents.” Id. (emphasis added). 20
20

Although the opinion in Susan B. Anthony List
addressed a criminal statute, the Supreme Court said that it
would “take the threatened [election] Commission

35

Case: 13-1952

Document: 003111673726

Page: 36

Date Filed: 07/09/2014

In short, as we have already discussed, there are ample
allegations of a present and continuing injury, despite the
Commonwealth’s desire to minimize the problem as
involving nothing more than “potential financial burdens.”
(Appellees’ Br. at 39.) It is quite true that a “chain of
contingencies” amounting to “mere speculation” is
insufficient for an injury-in-fact. Clapper v. Amnesty Int’l
USA, 133 S. Ct. 1138, 1148 (2013). But the injury alleged by
the Aspiring Parties is not a speculative series of conditions.
Construed in the light most favorable to the Aspiring Parties,
their Complaint establishes that, when they submit
nomination papers as they must under § 2911(b), they face
the prospect of cost-shifting sanctions, the very fact of which
inherently burdens their electioneering activity. See Susan B.
Anthony List, 573 U.S., at __ (slip op., at 15-16) (noting the
burden imposed on electoral speech, including “divert[ing]
significant time and resources to hire legal counsel”). They
have produced sworn and uncontested declarations that their
plans for seeking public office are directly impeded by the

proceedings into account because administrative action, like
arrest or prosecution, may give rise to harm sufficient to
justify preenforcement review.” 573 U.S. __ (2014) (slip op.,
at 15). The Court did not decide if such a threat, alone, gives
rise to an injury-in-fact, because the Commission proceedings
at issue in that case were “backed by the additional threat of
criminal prosecution.” Id. The Pennsylvania statute, by
contrast, does not provide for criminal sanctions; however,
the Court’s analysis of threats used to stifle electoral activity
informs us here.

36

Case: 13-1952

Document: 003111673726

Page: 37

relevant provisions of the election code.21
21

Date Filed: 07/09/2014

“Because

Our dissenting colleague dismisses the Aspiring
Parties’ efforts to have their day in court as founded solely on
subjective fears. (Dissent Op. at 1.). For the reasons already
outlined, we disagree with that characterization, as we do the
dissent’s reliance on Clapper v. Amnesty International USA,
133 S. Ct. 1138 (2013). While our colleague is troubled by a
supposed chain of contingencies (Dissent Op. at 3-4) – three
links long – Clapper’s statement that injury must certainly be
impending does not mean that Aspiring Party candidates must
certainly be assessed costs. (Id. at 4.) It is enough that there
is a reasonable evidentiary basis to conclude that the Aspiring
Parties’ electioneering activity will be limited by
Pennsylvania’s electoral scheme. The credible threat of costs
imposes the injurious restraint on political activity.
Moreover, our colleague’s reliance on Clapper
overlooks at least three ways in which that case is
distinguishable. First, Clapper addresses the unique realm of
national security in which peculiar balance-of-power
concerns, which are not present here, abound. See Clapper,
133 S. Ct. at 1147 (“[W]e have often found a lack of standing
in cases in which the Judiciary has been requested to review
actions of the political branches in the fields of intelligence
gathering and foreign affairs.”). Second, the Court’s holding
that respondents did not have standing was based on a
detailed review of the particular statutory scheme at issue in
that case, which, by the Court’s count, included five levels of
safeguards and contingencies. See id. at 1148-50 (discussing
the complex operation of the Foreign Intelligence
Surveillance Act as applied to the respondents). Third, and
most importantly, the law at issue in Clapper did not directly
regulate the respondents. Id. at 1148 (“[R]espondents’ theory

37

Case: 13-1952

Document: 003111673726

Page: 38

Date Filed: 07/09/2014

campaign planning decisions have to be made months, or
even years, in advance of the election to be effective, the
plaintiffs’ alleged injuries are actual and threatened.” Miller
v. Brown, 462 F.3d 312, 317-18 (4th Cir. 2006); see also New
Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495,
1500–01 (10th Cir. 1995) (finding injury from the existence
of a New Mexico statute relating to campaign expenditures
that caused a congressman to engage in fundraising
differently than he otherwise would have, even though the
congressman had not yet announced his intention to run for
necessarily rests on their assertion that the Government will
target other individuals – namely, their foreign contacts.”).
This third point alone makes Clapper inapposite and renders
any language from it regarding subjective speculation or
chains of contingencies inapplicable here. The Supreme
Court in fact relied on that very point to distinguish other
standing cases from the facts of Clapper. See id. at 1153.
(“As an initial matter, none of these cases holds or even
suggests that plaintiffs can establish standing simply by
claiming that they experienced a ‘chilling effect’ that resulted
from a governmental policy that does not regulate, constrain,
or compel any action on their part.”); see also id. at 1150
(“[R]espondents can only speculate as to whether their own
communications … would be incidentally acquired.”). In
contrast, the Pennsylvania scheme compels the Aspiring
Parties to file nomination papers and directly regulates their
conduct in doing so.
Finally, it bears repeating that, in this case, we are
addressing a fundamental First Amendment right to political
participation – not an inconvenience or burden, but wholesale
disenfranchisement.

38

Case: 13-1952

Document: 003111673726

Page: 39

Date Filed: 07/09/2014

office).
As those are the undisputed facts before us, the
Aspiring Parties have established injury-in-fact. We thus
consider whether they also satisfy the other prerequisites for
standing: causation and redressability. 22
22

To the extent that a separate declaratory judgment
standing analysis is required, see Khodara Env’t, Inc. v.
Blakey, 376 F.3d 187, 194 (3d Cir. 2004) (separately
reviewing “the standing requirements for a declaratory
judgment case” and Article III standing) – something we have
not expressly held but to which the Commonwealth devotes a
great deal of space in its briefing – we reject the
Commonwealth’s argument against such standing. Although
the Commonwealth contends that standing for declaratory
judgment is an “extra layer to the analysis,” (Appellee’s Br. at
31) we have often framed the inquiry as part of the injury-infact analysis. “A plaintiff seeking a declaratory judgment
must possess constitutional standing but need not have
suffered ‘the full harm expected.’” Khodara Env’t, Inc., 376
F.3d at 193 (quoting St. Thomas–St. John Hotel & Tourism
Ass’n v. V.I., 218 F.3d 232, 240 (3d Cir. 2000)). Such a
plaintiff “has Article III standing if ‘there is substantial
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.’” Id. at 193-94 (quoting St. Thomas–
St. John Hotel & Tourism Ass’n, 218 F.3d at 240). The
Commonwealth claims that the interests of the parties are not
adverse because Commonwealth officials only accept
nomination papers for filing and have no role in any
challenge posed to the papers. Enforcement of the law can,
however, establish an adverse interest. See St. Thomas–St.

39

Case: 13-1952

Document: 003111673726

2.

Page: 40

Date Filed: 07/09/2014

Causation

The District Court held that, even if the Aspiring
Parties could establish injury-in-fact, they had failed to
establish causation. Constitution Party, 2013 WL 867183, at
*7-8. A federal court may “act only to redress injury that
fairly can be traced to the challenged action of the defendant,
and not injury that results from the independent action of
some third party not before the court.” Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 41-42 (1976). The
Commonwealth argues that, because private parties are the
ones who bring lawsuits objecting to the nomination papers,
the independent decisions of those objectors constitute a
break in any actionable link to the Commonwealth’s conduct.
Essentially, the argument is that Commonwealth officials
only accept the nomination papers for filing, and they do none
John Hotel & Tourism Ass’n, 218 F.3d at 240-41 (“The
parties’ interests in this action could not be more adverse, as
the government and employees, both defendants here, seek to
enforce the protections provided by the [statute], and the
employers … seek to avoid enforcement of those
protections.”). The Commonwealth also asserts that the
controversy is not of “sufficient immediacy and reality”
because the results of the 2012 nomination paper process
depended on a “host of contingencies.” (Appellee’s Br. at
34.) That argument fails for the same reasons discussed
above regarding the immediate nature of the injury-in-fact.
The Aspiring Parties satisfy the prerequisites to bring a
declaratory judgment action. Having said that, we reiterate
that we are not deciding the merits and express no opinion on
whether a declaratory judgment should ultimately issue.

40

Case: 13-1952

Document: 003111673726

Page: 41

Date Filed: 07/09/2014

of the things about which the Aspiring Parties complain. We
cannot agree with that self-serving characterization.
Causation in the context of standing is not the same as
proximate causation from tort law, and the Supreme Court
has cautioned against “wrongly equat[ing] … injury ‘fairly
traceable’ to the defendant with injury as to which the
defendant’s actions are the very last step in the chain of
causation.” Bennett v. Spear, 520 U.S. 154, 168–69 (1997).
Moreover, there is room for concurrent causation in the
analysis of standing, Libertarian Party of Va. v. Judd, 718
F.3d 308, 316 (4th Cir. 2013) (holding that if a petition
witness residency requirement was “at least in part
responsible for frustrating [plaintiff’s] attempt to fully assert
his First Amendment rights in Virginia, the causation element
of Lujan is satisfied”), and, indeed, “an indirect causal
relationship will suffice, so long as there is a fairly traceable
connection.” Toll Bros. Inc., 555 F.3d at 142 (citations
omitted) (internal quotation marks omitted). There are two
types of cases in which standing exists even though the direct
source of injury is a third party:
First, a federal court may find that a party has
standing to challenge government action that
permits or authorizes third-party conduct that
would otherwise be illegal in the absence of the
Government’s action. Second, standing has
been found where the record present[s]
substantial evidence of a causal relationship
between the government policy and the thirdparty conduct, leaving little doubt as to
causation and likelihood of redress.

41

Case: 13-1952

Document: 003111673726

Page: 42

Date Filed: 07/09/2014

Bloomberg L.P. v. CFTC, 949 F. Supp. 2d 91, 116 (D.D.C.
2013) (alterations in original) (citations omitted) (internal
quotation marks omitted). At issue here is causation of the
second type.
The District Court concluded that the Aspiring Parties
provided “nothing more than conjecture and conclusory
assertions” to support their allegation that candidate
recruitment problems stemmed from § 2937 costs.
Constitution Party, 2013 WL 867183, at *8. It also held that
“any multitude of other factors” could have resulted in
candidate reluctance. Id. Again, this largely ignores the
Complaint and the declarations submitted with it. To the
extent that the Court addressed the Aspiring Parties
allegations and proof, it certainly did not take them as true.
Candidates and canvassers refuse to participate in the political
process because, they have declared, they cannot bear the risk
of litigation costs imposed under § 2937. That is a direct and
un-refuted statement of causation. Because the “mere
existence of the … law causes these [electoral] decisions to
be made differently than they would absent the law … the
standing inquiry’s second requirement of a causal connection
between the plaintiffs’ injuries and the law they challenge” is
satisfied. Miller, 462 F.3d at 318 (citing Simon, 426 U.S. at
41–42).
The Commonwealth cannot hide behind the behavior
of third parties when its officials are responsible for
administering the election code that empowers those third
parties to have the pernicious influence alleged in the
Complaint. To hold otherwise would mean that political
bodies could never seek prospective relief because the
objectors to their nomination papers will always be unknown

42

Case: 13-1952

Document: 003111673726

Page: 43

Date Filed: 07/09/2014

until it is too late to actually obtain a meaningful injunction.
We cannot accept the Commonwealth’s argument that the
only way to challenge the statutory scheme is in a lawsuit
over a particular set of nominating papers. Oral Arg. Tr. at
47:12-25. By the impossible logic of the Commonwealth, the
Aspiring Parties will never have a prospective remedy for
their injury, because there will never be standing, because
there will never be causation, because the third parties who
might challenge their nomination papers are always unknown
until the opportunity for prospective relief has passed.23 Cf.
Hein v. Freedom from Religion Found., Inc., 551 U.S. 587,
633 (2007) (Scalia, J., concurring in the judgment) (“The rule
of law is ill served by forcing lawyers and judges to make
arguments that deaden the soul of the law, which is logic and
reason.”). All the while, the C.G.L. Parties allege that they
cannot advance from “political body” status precisely because
they cannot recruit volunteers to even gather signatures.
Under this specific statutory scheme, it is not the
actions of other actors alone that cause the injury. Those
third parties could take no action without the mechanisms by
which the Commonwealth’s officials oversee the election
code provisions at issue here. Therefore, “the record
present[s] substantial evidence of a causal relationship
between the government policy and the third-party conduct,
23

Some may say this goes too far and that the Aspiring
Parties need not wait until a challenge is brought, but could
come to court as soon as there are credible threats from thirdparty challengers. However, given the months and years of
strategy that go into campaigning in our modern era, forcing
political bodies to live under such uncertainty is, as already
addressed above, subject to challenge.

43

Case: 13-1952

Document: 003111673726

Page: 44

Date Filed: 07/09/2014

leaving little doubt as to causation and likelihood of redress.”
Bloomberg L.P., 949 F. Supp. 2d at 116 (alteration in
original) (internal quotation marks omitted).
In fact, in reviewing other election challenges, it
appears to be standard operating procedure for plaintiffs to
bring these type of suits against the officials who administer
the state election system, which here includes the Secretary of
the Commonwealth and state election commissioners. See
Belitskus, 343 F.3d at 638 (finding standing where the
defendants were the Secretary of the Commonwealth and the
Commissioner for the Bureau of Commissions, Elections and
Legislation). For example, in American Party of Texas v.
White, 415 U.S. 767, 770 (1974), plaintiffs brought claims
“against the Texas Secretary of State seeking declaratory and
injunctive relief against the enforcement of various sections
of the Texas Election Code,” and the Supreme Court
undertook no standing analysis other than to note that other
minor parties initially involved in the litigation lost standing
during the proceedings, id. at 770 n.2. That the Supreme
Court went straight to the merits of a similar ballot-access
claim, brought for declaratory and injunctive relief against
state officials charged with administering the election code, is
not lost on us. See id. at 780. It implies the propriety of
finding standing here, where the defendants exercise the same
kinds of government authority. The Aspiring Parties have
established that their injury-in-fact can fairly be traced to the
actions of the Commonwealth officials, and the causation
element is satisfied.
3.

Redressability

44

Case: 13-1952

Document: 003111673726

Page: 45

Date Filed: 07/09/2014

Finally, standing requires that there be redressability,
which is “a showing that ‘the injury will be redressed by a
favorable decision.’” Toll Bros. Inc., 555 F.3d at 142
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 181 (2000)). The District Court
did not address this requirement, Constitution Party, 2013
WL 867183, at * 8, nor do the parties give it much
consideration. We agree that it does not need extensive
attention. Redressability here follows the rest of the standing
analysis primarily because, by establishing causation, the
Aspiring Parties have also established redressability. See Toll
Bros. Inc., 555 F.3d at 142 (finding that redressability is
“closely related to traceability [causation], and the two prongs
often overlap”).
If the Commonwealth officials do not
enforce the election provisions at issue, then the Aspiring
Parties will not be burdened by the nomination scheme
embodied in §§ 2911(b) and 2937, allowing the C.G.L.
Parties’ candidates to run for office and build functioning
political parties.24 The Aspiring Parties have therefore
alleged sufficient facts to establish standing.25
24

We are not suggesting that framing a remedy, should
that ever become necessary, would be a simple matter. We
are only holding that the redressability prong of a
constitutional standing analysis is satisfied under the present
circumstances.
25

The Aspiring Parties also contend that it was error
for the District Court not to separately consider their § 2937
facial challenge.
“Litigants asserting facial challenges
involving overbreadth under the First Amendment have
standing where ‘their own rights of free expression are [not]
violated’ because ‘of a judicial prediction or assumption that

45

Case: 13-1952

V.

Document: 003111673726

Page: 46

Date Filed: 07/09/2014

Conclusion

While the merits of their claims must await a hearing
on some future day, the Aspiring Parties have standing to
pursue their claims and have them heard. The order of the
District Court dismissing the Complaint will be reversed.

the statute’s very existence may cause others not before the
court to refrain from constitutionally protected speech or
expression.’” McCauley v. Univ. of the V.I., 618 F.3d 232,
238 (3d Cir. 2010) (alteration in original) (quoting Broadrick
v. Oklahoma, 413 U.S. 601, 612 (1973)); Amato v. Wilentz,
952 F.2d 742, 753 (3d Cir. 1991) (“The Supreme Court rather
freely grants standing to raise overbreadth claims, on the
ground that an overbroad ... regulation may chill the
expression of others not before the court.”). A separate
analysis of the § 2937 facial claim and the statute’s impact on
parties not before the Court is unnecessary at this juncture
because we have determined that the Aspiring Parties have
standing to bring all three claims in their Complaint.
Lastly, the Commonwealth argues that the controversy
was not ripe when it was filed. The ripeness inquiry involves
various considerations including whether there is a
“sufficiently adversarial posture,” the facts are “sufficiently
developed,” and a party is “genuinely aggrieved.” Peachlum
v. City of York, 333 F.3d 429, 433-34 (3d Cir. 2003).
Although the District Court did not reach the question of
ripeness, we hold that, for the reasons discussed above, the
case was ripe for adjudication.

46

Case: 13-1952

Document: 003111673726

Page: 47

Date Filed: 07/09/2014

The Constitution Party of Pennsylvania, et al.
v. Carol Aichele, et al.
No. 13-1952
_________________________________________________
AMBRO, Circuit Judge, dissenting
Were the law on standing a blank slate, perhaps the
plaintiffs1 here would have standing. It is not, and they do
not.
Instead, precedent establishes clear and exacting
standards for when fear of a possible harm generates
standing. Because the plaintiffs have not met those standards,
I respectfully dissent.
As the Supreme Court stated more than four decades
ago, “[a]llegations of a subjective ‘chill’ are not an adequate
substitute for a claim of specific present objective harm or a
threat of specific future harm . . . .” Laird v. Tatum, 408 U.S.
1, 13-14 (1972). Here, the plaintiffs have specifically and
with supporting declarations alleged that they and their
members subjectively fear the future imposition of costs.
Contrary to the majority’s position, our task is to determine

1

As discussed in the majority opinion, it is difficult to select
an appropriate short-hand label for the plaintiffs in this case,
who include the Constitution Party of Pennsylvania, the
Libertarian Party of Pennsylvania, and the Green Party of
Pennsylvania, as well as several party officials and current or
former candidates. The majority’s preferred name, “Aspiring
Parties,” seems fit only for the organizations (and even there
it may be gratuitously laudatory). Because the standing
analysis in cases like this one focuses on the claims made by
a party in its complaint and supporting documents, I have
used the term “plaintiffs” rather than “appellants.”

Case: 13-1952

Document: 003111673726

Page: 48

Date Filed: 07/09/2014

whether that subjective fear has a sufficient objective basis to
render it an injury sufficient to confer standing to sue today.
Clapper v. Amnesty International USA, 133 S. Ct.
1138 (2013), is particularly instructive in conducting this
evaluation. There a variety of lawyers and activist groups
brought a constitutional challenge to expanded surveillance
under an amended portion of the Foreign Intelligence
Surveillance Act, 50 U.S.C. § 1881a, that they feared might
intercept their communications given their work with targeted
groups. Id. at 1145. The Second Circuit, reversing the
District Court, found standing based on both what the
plaintiffs termed an “objectively reasonable likelihood” of
future interception and the actions of the plaintiffs based on
fear of that interception. Id. at 1146.
The Supreme Court reversed the Circuit Court, ruling
that the plaintiffs did not have standing. The threat of future
surveillance was too speculative to create standing because it
“relie[d] on a highly attenuated chain of possibilities . . . .”
Id. at 1148. As to the applicable test, “the Second Circuit’s
‘objectively reasonable likelihood’ standard is inconsistent
with our requirement that ‘threatened injury must be certainly
impending to constitute injury in fact.’” Id. at 1147 (emphasis
added) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158
(1990)). Instead, that “Circuit’s analysis improperly allowed
respondents to establish standing by asserting that they suffer
present costs and burdens that are based on a fear of
surveillance, so long as that fear is not ‘fanciful, paranoid, or
otherwise unreasonable.’” Id. at 1151 (quoting Amnesty Int’l
USA v. Clapper, 638 F.3d 118, 134 (2d Cir. 2011)).
My majority colleagues make the same error,
implicitly allowing the plaintiffs to establish standing without
showing a sufficiently certain harm. Their opinion states:
“The threat of cost shifting, entirely believable in light of

2

Case: 13-1952

Document: 003111673726

Page: 49

Date Filed: 07/09/2014

recent history, chills the Aspiring Parties’ electioneering
activities.” Maj. Op. at 35 (emphasis added). I do not doubt
that the threat of cost shifting is “entirely believable,” id., nor,
for the sake of argument, do I doubt that the plaintiffs in good
faith believe costs would be assessed if the plaintiff
organizations were to run candidates. Yet this fear alone is
simply not enough to create standing.
Instead, to generate standing, cost assessments must be
“certainly impending.” They are not in at least three ways.
First, assuming that a candidate were to collect and submit the
necessary signatures (something the candidate is responsible
for), someone would have to challenge his or her nomination
papers. Even if it is true that “[t]he likelihood of future legal
challenges is hardly farfetched,” Maj. Op. at 27 n.15, a
“hardly farfetched” threat is not enough. The complaint
alleges that in recent years some non-major party candidates
have been challenged while others have not been challenged
(in particular, the Libertarian Party nominees in 2008). That
some but not all recent candidates have been challenged does
not support the inference that any particular nomination will
inevitably be challenged in the future.
Second, if a nomination were challenged, the candidate
would have to lose before costs could be imposed—i.e., his or
her nomination papers would have to be disqualified. Based
on the complaint and supporting declarations, there is no
basis for concluding that successful defenses against
challenges are impossible or even improbable, particularly
when (as the plaintiffs repeatedly assert) a candidate believes
in good faith that he or she submitted sufficient valid
signatures. The mere fact of a challenge does not make
disqualification a fait accompli.
Third, even if a challenge is successful, costs can be
imposed under In re Farnese, 17 A.3d 357 (Pa. 2011), only if

3

Case: 13-1952

Document: 003111673726

Page: 50

Date Filed: 07/09/2014

a court deems such an assessment “just” after considering
“the particular facts, the nature of the litigation, and other
considerations as may appear relevant.” Id. at 372. A cost
assessment is not automatic or inevitable after a challenge is
lost, but rather is the subject of a case-specific balancing
process by a neutral state court. Although Clapper requires
certainty, the majority inexplicably writes that it is postFarnese cost assessments’ “alleged uncertainty itself that
leads to the Aspiring Parties’ injury.” Maj. Op. at 35 n.19
(emphasis added). Yet, as the majority notes, the provision
allowing cost assessments has been law for over 75 years and
the signature threshold has been unchanged for over 40 years.
See id. at 12 (citing People’s Party v. Tucker, 347 F. Supp. 1,
2 & n.2 (M.D. Pa. 1972)). In all that time, the plaintiffs have
identified just two instances in which a Pennsylvania court
has assessed costs against a non-major party candidate under
this provision, each involving particular facts that cause
courts to “send a message” by way of a sanction. The first
major cost award involved widescale fraud, while the second
involved repeated failure to comply with court orders. These
two cases, particularly in light of Farnese, do not support the
conclusion that a candidate who is challenged and loses will
inevitably be assessed costs. What we have instead is, like
Clapper, a “highly attenuated chain of possibilities [that] does
not satisfy the requirement that threatened injury must be
certainly impending.” Clapper, 133 S. Ct. at 1148.
Nor can the plaintiffs create standing by acting on their
subjective fear. Their filings are filled with language
suggesting coercion, saying that would-be candidates have
been “forced” or “compelled” to withdraw or not to run and
referring to “threats” to seek costs by people associated with
major parties. The Clapper plaintiffs made analogous claims,
such as “that the threat of surveillance sometimes compels
them to avoid certain e-mail and phone conversations, to
‘tal[k] in generalities rather than specifics,’ or to travel so that

4

Case: 13-1952

Document: 003111673726

Page: 51

Date Filed: 07/09/2014

they can have in-person conversations.”
Id. at 1151
(alterations in original) (citations omitted). The Supreme
Court roundly rejected those contentions, writing that
“respondents cannot manufacture standing merely by
inflicting harm on themselves based on their fears of
hypothetical future harm that is not certainly impending.” Id.
The same applies here: actions the plaintiffs or their
“member-supporters” have taken or not taken out of fear of
cost assessments do not create standing for the same reason
that fear itself does not.
In response, my majority colleagues argue without
citation that “[i]t is enough that there is a reasonable
evidentiary basis to conclude that the [plaintiffs’]
electioneering activity will be limited by Pennsylvania’s
electoral scheme.” Maj. Op. at 37 n.21. In their view, so
long as there is a “credible threat,” id., of some negative
consequence for the exercise of one’s First Amendment right,
a plaintiff can show standing by specifically alleging that he
or she will not exercise the right out of subjective fear that
consequence could occur. This is not the law, and the
majority’s purported bases for distinguishing Clapper, which
amount to the conclusion that our case does not involve
identical facts, are unavailing. Thus I turn to what Clapper
teaches.2

I read the Supreme Court’s opinion in Susan B. Anthony List
v. Driehaus, 573 U.S. ___ (2014), as simply an extension of
the long-established special standing analysis in cases
involving potential criminal prosecution for violating a
prohibition on speech. See id. (slip op. at 16) (“The
burdensome Commission proceedings here are backed by the
additional threat of criminal prosecution. We conclude that
the combination of those two threats suffices to create an
2

5

Case: 13-1952

Document: 003111673726

Page: 52

Date Filed: 07/09/2014

I know no basis for concluding that Clapper’s reach is
limited to national security cases beyond the vague halfsentence quoted by the majority. Clapper relies, with the
exception of Laird, overwhelmingly on standing cases from
outside the national security context.
For the central
proposition that a threatened harm must be certainly
impending, the Court relied on Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992), and a case where one death row inmate
attempted to assert standing on behalf of another death row
inmate, Whitmore v. Arkansas, 495 U.S. 149 (1990). See
Clapper, 133 S. Ct. at 1147 (citing Lujan, 504 U.S. at 565
n.2); id. (citing Whitmore, 495 U.S. at 158). To conclude that
costs incurred out of fear of a non-certain harm do not
generate standing, the Court in Clapper looked to
Pennsylvania v. New Jersey, 426 U.S. 660 (1976), a tax
dispute among several states, and National Family Planning
& Reproductive Health Association, Inc. v. Gonzales, 468
F.3d 826 (D.C. Cir. 2006), a challenge to grant restrictions on
family planning services. See Clapper, 133 S. Ct. at 1151.
This range of sources strongly suggests that the Court meant
for us to apply Clapper to standing decisions well beyond the
narrow national security context.
Article III injury under the circumstances of this case.”); see
also, e.g., Babbitt v. United Farm Workers Nat’l Union, 442
U.S. 289, 298 (1979) (“When contesting the constitutionality
of a criminal statute, ‘it is not necessary that [the plaintiff]
first expose himself to actual arrest or prosecution to be
entitled to challenge [the] statute that he claims deters the
exercise of his constitutional rights.’” (alterations in original)
(emphasis added) (quoting Steffel v. Thompson, 415 U.S. 452,
459 (1974))). This case involves neither the threat of criminal
prosecution nor a prohibition of any kind, and thus the
Babbit-Steffel standing analysis does not apply.

6

Case: 13-1952

Document: 003111673726

Page: 53

Date Filed: 07/09/2014

Moreover, in Clapper’s “detailed review of the
particular statutory scheme at issue,” Maj. Op. at 38 n.21, the
Court did not reach its conclusion based on some isolated,
idiosyncratic feature of the FISA amendments. It reviewed
the statute to determine whether it made the purported harm
certainly impending and concluded it did not. See 133 S. Ct.
at 1148-50. A thorough review of the statutory scheme here
reveals similar uncertainty and thus, I believe, leads to the
same conclusion.
The majority also argues that Clapper does not apply
because the plaintiffs there alleged that their First
Amendment rights were burdened by possible surveillance of
their contacts, see id. at 1148, while the plaintiffs here fear
costs that might be assessed against them and their candidates
directly. See Maj. Op. at 38 n.21. It is a distinction without a
difference. That the Clapper plaintiffs feared government
action against others rather than directly against themselves
was simply one among many reasons the Court held that the
harm to the plaintiffs from this hypothetical surveillance was
too speculative to generate standing. See 133 S. Ct. at 1148.
It was not, however, the basis of the Supreme Court’s
conclusion, established in standing law since Laird, that a
subjective chilling effect in general is insufficient for standing
unless the feared harm is certainly impending. See id. at 1152
(quoting Laird, 408 U.S. at 13-14). This rule clearly still
applies to the plaintiffs in our case.
The majority’s description of the statutory scheme as
“not an inconvenience or burden, but wholesale
disenfranchisement,” Maj. Op. at 38-39 n.21, hyperbolizes
the law’s actual effects. The plaintiffs themselves have
repeatedly characterized the Pennsylvania laws’ collective
effect as a “burden” on their constitutional rights but have not
come close to alleging Pennsylvania “disenfranchises” them.
See J.A. at 44 (“The application of Section 2911(b) and

7

Case: 13-1952

Document: 003111673726

Page: 54

Date Filed: 07/09/2014

Section 2937 has severely impacted Plaintiffs and continues
to impose severe burdens on them.”); id. at 47 (“Section
2911(b) and Section 2937, as applied, violate Plaintiffs’
freedoms of speech, petition, assembly, and association for
political purposes, and their right to due process of law, as
guaranteed by the First and Fourteenth Amendments, by
imposing or threatening to impose substantial financial
burdens on them . . . .”); id. at 49 (“The threat of incurring
such financial burdens injures Plaintiffs.”).
“[T]he core component of standing is an essential and
unchanging part of the case-or-controversy requirement of
Article III.” Lujan, 504 U.S. at 560. A subjective fear alone,
no matter how deeply perceived, does not create a case or
controversy the Constitution empowers us to hear unless that
fear has a sufficient objective basis. The majority believes
that the plaintiffs—who have alleged only two instances ever
of cost assessments against non-major-party candidates and
speculate costs may be assessed again—have shown such a
basis here. I disagree because “hypothetical future harm that
is not certainly impending” does not confer standing.
Clapper, 133 S. Ct. at 1143. Thus I respectfully dissent.

8