Constitution Party of Pennsylv, et al v. Pedro Cortes, et al

Filing

PRECEDENTIAL OPINION Coram: AMBRO, SMITH and KRAUSE, Circuit Judges. Total Pages: 31. Judge: SMITH Authoring.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3046
_____________
THE CONSTITUTION PARTY OF PENNSYLVANIA;
THE GREEN PARTY OF PENNSYLVANIA;
THE LIBERTARIAN PARTY OF PENNSYLVANIA;
JOE MURPHY; JAMES N. CLYMER;
CARL J. ROMANELLI; THOMAS R. STEVENS;
KEN KRAWCHUK
v.
*PEDRO A. CORTES;
JONATHAN M. MARKS,
Appellants
*(Pursuant to Rule 43(c), Fed. R. App. P.)
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 5-12-cv-02726
District Judge: The Honorable Lawrence F. Stengel
Argued April 13, 2016

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Before: AMBRO, SMITH, and KRAUSE, Circuit Judges
(Filed: June 2, 2016)
James N. Clymer
Clymer Musser Brown & Conrad
408 West Chestnut Street
Lancaster, PA 17603
Oliver B. Hall (Argued)
Center for Competitive Democracy
1835 16th Street N.W.
Washington, DC 20009
Counsel for Appellees
Kevin R. Bradford
Claudia M. Tesoro (Argued)
Office of Attorney General
of Pennsylvania
21 South 12th Street
Philadelphia, PA 19107
Sean A. Kirkpatrick
Office of Attorney General
of Pennsylvania
Strawberry Square
16th Floor
Harrisburg, PA 17120
2

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Gregory R. Neuhauser
Office of Attorney General
of Pennsylvania
Strawberry Square
15th Floor
Harrisburg, PA 17120
Sarah C. Yerger
Post & Schell
17 North 2nd Street
12th Floor
Harrisburg, PA 17101
Counsel for Appellants
________________
OPINION
________________

SMITH, Circuit Judge.
While the outcome of this case may yield major
consequences, we are, as the Commonwealth concedes,
confronted with two “relatively narrow” and “more
technical issues” on appeal. Appellants’ Br. 3. This
lawsuit challenges the constitutionality of two provisions
of Pennsylvania’s election code: 25 Pa. Stat. Ann.
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§§ 2911(b) and 2937. These provisions, respectively, (1)
regulate the number of signatures required to attain a
position on the general election ballot and (2) govern the
process by which private individuals can sue in the
Pennsylvania Commonwealth Court to challenge the
validity of a candidate’s nomination paper or petition. At
the summary judgment stage, the District Court held that,
acting in combination, the two statutory provisions as
applied to the Appellees violated their First and
Fourteenth Amendment rights. Yet on appeal the
Commonwealth challenges only two technical issues on
which it believes it can prevail, even “assuming some
constitutional injury.” Appellants’ Br. 3. First, the
Commonwealth argues that neither state official sued
here has a sufficient connection to the challenged code
provisions to be a proper defendant. Second, it argues
that the District Court’s order was “incoherent on its
face,” id. at 36, and thus provided no practical benefit to
the Appellees. For the reasons discussed below, we
reject both arguments and will affirm the District Court’s
order.
I.
The Appellees in this case are the Constitution
Party of Pennsylvania, the Green Party of Pennsylvania,
and the Libertarian Party of Pennsylvania; their
respective chairmen—Joe Murphy, Carl Romanelli, and
Thomas Robert Stevens; James Clymer, a member of the
Constitution Party; and Ken Krawchuk, a former
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Libertarian Party candidate for the U.S. Senate. For ease
of reference and consistency with our earlier opinion in
this case, we will refer to the Appellees collectively as
the “Aspiring Parties.”1 They filed suit against the
Secretary of the Commonwealth of Pennsylvania, Pedro
Cortes, and the Commissioner of the Pennsylvania
Bureau of Commissions, Elections, and Legislation,
Jonathan M. Marks (collectively, the “Commonwealth”
or the “officials”) in their official capacities.

1

As we previously noted,
Despite referring to themselves as the
“Minor
Parties,”
the
organizational
Appell[ees] are in fact not minor parties but
are “political bodies” for purposes of the
election code. . . . 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
Appell[ees]
and
the
organizational Appell[ees] aspire to full
political participation.

Constitution Party of Pa. v. Aichele, 757 F.3d 347, 350
n.2 (3d Cir. 2014).
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A. 2
In order to fully understand this appeal, it is
necessary to provide some background regarding
Pennsylvania’s election code. To begin, the code
distinguishes between “political parties” and “political
bodies.” 25 Pa. Stat. Ann. § 2831. An organization
qualifies as a “political party” if, during the most recent
general election, 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 then be categorized as either major
or minor parties. Id. § 2872.2(a); Rogers v. Corbett, 468
F.3d 188, 190-91 (3d Cir. 2006). Minor parties are
defined as parties receiving less than fifteen percent of
the total statewide registration for all political parties, 25
Pa. Stat. Ann. § 2872.2(a), while parties with more
support, at present only the Democratic and Republican
Parties, are deemed major parties, Rogers, 468 F.3d at
191. “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 either a minor or a major party. 25 Pa.
2

We borrow much of Part I.A from our earlier opinion in
this case as the facts underlying this appeal are identical
to those previously discussed. See id. at 350-55.
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Stat. Ann. § 2831.
Major parties have the benefit of a publicly funded
primary process through which the field of candidates is
winnowed down and a party representative is chosen for
the general election. See id. § 2862; Rogers, 468 F.3d at
191. To be placed on the primary ballot, a major party
candidate needs only to gather, at most, 2,000 signatures.
25 Pa. Stat. Ann. § 2872.1. Minor parties and political
bodies (together, “non-major parties”), however, have to
put on a much larger signature-gathering campaign to
have their nominees appear on the general election ballot.
For statewide office in 2016, for example, a non-major
party candidate would need to gather 21,775 signatures.3
Appellees’ March 1, 2016 Rule 28(j) letter at 2. After
collecting these signatures, non-major party candidates
are also required to file a nomination paper with the
Secretary of the Commonwealth. See id. §§ 2872.2
(“Nominations by minor political parties”), 2911
(“Nominations by political bodies”); Rogers, 468 F.3d at
191. The nomination paper is then examined by the
Secretary of the Commonwealth, who must reject the
3

This number is calculated according to 25 Pa. Stat. Ann.
§ 2911(b), which requires a nomination paper for a
statewide office to include valid signatures equal to two
percent of the vote total of the candidate with the largest
number of votes for any statewide office in the previous
election.
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filing of any submission containing “material errors or
defects apparent on [its] face . . . or on the face of the
appended or accompanying affidavits; or . . . contain[ing]
material alterations made after signing without the
consent of the signers; or . . . not contain[ing] a sufficient
number of signatures.” 25 Pa. Stat. Ann. § 2936.
Even after being received and filed by the
Secretary, however, the nomination paper can be
subjected to further examination if an individual lodges
an objection within seven days of its acceptance and
seeks to set aside the nomination paper.4 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. Id. If 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
4

While not always used consistently, under the election
code only major party candidates file “petitions” while
candidates of non-major parties file “papers.” Aichele,
757 F.3d at 351 n.5.
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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 the absence of “fraud, bad
faith, or gross misconduct” on the part of the candidate
whose nomination paper was challenged. Id.
In 2004, 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 “signaturegathering campaign involved fraud and deception of
massive proportions.” In re Nader, 905 A.2d 450, 455,
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 transformed how § 2937 was understood and
applied across the Commonwealth. They claim that the
threat of extraordinary costs “caused several minor party
candidates either to withhold or withdraw their
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nomination petitions” during the 2006 election cycle.
Appellees’ Br. at 8. For example, Appellant Krawchuk
previously 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.” Constitution Party of Pa. v.
Aichele, 757 F.3d 347, 353 (3d Cir. 2014). Thus,
according to the Aspiring Parties, in 2006 “only one
minor party candidate [ran] for statewide office”:
Appellant Romanelli, the Green Party’s nominee for
United States Senate. Id.
As required by § 2911, 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 after private parties affiliated with the Democratic
Party filed a successful objection pursuant to § 2937.
Romanelli was then ordered to pay costs totaling
$80,407.56. In re Nomination Papers of Rogers, 942
A.2d 915, 930 (Pa. Commw. Ct. 2008).
The
Commonwealth Court found that costs were warranted
due to the failure of both 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 signatures and an order to
timely provide the court with the “specifics of what
stipulated invalid signatures [Romanelli] believed could
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be rehabilitated.” Id. at 929.5
B.
Over the course of the next several election cycles,
the effect of the Nader decision continued to deter
Aspiring Party candidates from entering the political
fray. Aichele, 757 F.3d at 355. Indeed, as discussed at
length in Aichele, the challenge process was allegedly
being used by “allies” of the major parties to scare off
minor party candidates with “threats of financial ruin.”
Id. at 354. This was not an empty threat; the cost of
reviewing thousands upon thousands of signatures made
many potential non-major party candidates unwilling to
run. In 2010 not a single candidate, other than the
Democratic and Republican nominees, appeared on a
statewide ballot.
Recognizing this shift in the political calculus
following Nader, the Aspiring Parties filed suit under 42
U.S.C. § 1983 on May 17, 2012, against the
Commonwealth. They claimed that, as a result of the
increasing imposition of costs on non-major party
Because the challenge to Romanelli’s candidacy in
2006 was successful, under 25 Pa. Stat. Ann. § 2831(a),
none of the Aspiring Parties qualified as minor parties
leading up to the 2008 election. They were thus
reclassified as political bodies.
5

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candidates, §§ 2911(b)6 and 29377 (together, the
“provisions”) worked in combination to violate their First
and Fourteenth Amendment rights. Specifically, they
alleged that the provisions required them to assume the
risk of incurring “substantial financial burdens . . . if they
defend nomination petitions they are required by law to
submit.” Compl. 17. In response, the Commonwealth
filed a motion to dismiss this case under Rule 12(b) of
the Federal Rules of Civil Procedure, which the District
Court granted for lack of standing under Rule 12(b)(1).
The Aspiring Parties timely appealed that determination,
and we reversed, holding that the Aspiring Parties had
The statute 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 . . . .” 25 Pa. Stat. Ann. § 2911(b).
6

The statute provides in relevant part: “All nomination
petitions and papers received and filed within the periods
limited by this act 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 the objections thereto,
and praying that the said petition or paper be set aside.”
25 Pa. Stat. Ann. § 2937.
7

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standing. Aichele, 757 F.3d at 368.
The case was thus remanded to the District Court,
which entertained cross-motions for summary judgment
on the Aspiring Parties’ request for a declaratory
judgment that the provisions violated their constitutional
rights.8 In their motion for summary judgment, the
Aspiring Parties argued that, even if the signature
requirement alone was facially constitutional,9 the two
provisions worked in combination to unconstitutionally
burden their constitutional rights. The Aspiring Parties
explained that even though there were no direct costs
associated with securing a spot on the ballot, the joint
effect of §§ 2911(b) and 2937 essentially created an
implicit ballot-access fee that was part of a “patently
exclusionary” system in which non-major parties or their
candidates would, almost without fail, be forced to spend
upwards of $50,000 to defend a nomination paper. The
Constitution Party of Pennsylvania v. Cortes, 116 F.
Supp. 3d 486, 502-03 (E.D. Pa. 2015) (estimating a
8

The Aspiring Parties also argued that § 2937 was
facially unconstitutional, but the District Court disagreed
and held in favor of the Commonwealth on this claim.
This issue was not appealed by the Aspiring Parties and
is therefore not before us.
9

Indeed, this Court has previously upheld the facial
validity of the signature requirement in Rogers v.
Corbett, 468 F.3d 188 (3d Cir. 2006).
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$50,000 cost for candidates defending a § 2937 challenge
arising from the Commonwealth Court ordering such
candidates to provide temporary employees to jointly
review signatures with the challenger before the court
would itself review the signatures that remained in
dispute). This figure also did not include the potential
added liability if costs were assessed by the
Commonwealth Court. This added liability could bring
the total cost to over $130,000 per candidate per election.
Id. at 502.
The District Court considered these claims and
held in a well-reasoned opinion that “the near certainty of
incurring costs pursuant to § 2937 brings the facts of this
case in line with” prior precedent holding that “patently
exclusionary” fees were unconstitutional absent
alternative means of ballot access. Id. at 501-03. The
District Court then noted that “[t]he typical alternative to
onerous ballot access costs” was a higher signature
requirement—something already in place in addition to
the onerous costs associated with a non-major party bid
for a statewide office. Id. at 503. It then concluded that
“the combined effect of the signature requirement with
Section 2937’s signature validation procedures”
substantially burdened the Aspiring Parties’ associational
rights, and held both provisions unconstitutional as
applied. Id.
In addition, the District Court explained that the
Commonwealth’s attempt to rely on Rogers—our earlier
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opinion holding that § 2911(b)’s signature requirement is
facially constitutional—was misplaced. Even though the
signature requirement was facially valid, the District
Court noted, this did not prevent it from finding the
requirement unconstitutional as applied in combination
with § 2937. Id. at 505. As the District Court made
clear, it is not solely the signature requirement nor solely
the challenge provision that creates the unconstitutional
burden on the Aspiring Parties; it is the interaction of
both provisions that causes problems. Thus, as the
District Court explained in a footnote, its holding should
not be read to facially invalidate § 2911(b). Id. at 508
n.38. The District Court granted the Aspiring Parties’
motion for summary judgment on their as-applied
challenge to §§ 2911(b) and 2937, but granted summary
judgment in favor of the Commonwealth on the Aspiring
Parties’ facial challenge to § 2937. Id. at 511. The
Commonwealth timely appealed this order regarding the
as-applied unconstitutionality of both provisions, but the
Aspiring Parties chose not to appeal the determination
that § 2937 is facially valid.10

10

The Aspiring Parties filed suit pursuant to 42 U.S.C.
§ 1983. The District Court therefore exercised subject
matter jurisdiction over this case pursuant to 28 U.S.C.
§ 1331. We have jurisdiction to review a district court’s
final decision pursuant to 28 U.S.C. § 1291.
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II.
Because we are reviewing a grant of summary
judgment, our standard of review is plenary. Belitskus v.
Pizzingrilli, 343 F.3d 632, 639 (3d Cir. 2003). Summary
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Belitskus, 343 F.3d at 639.
The Commonwealth begins by asserting that,
“even assuming some constitutional injury,” the District
Court’s order in this case should be reversed.
Appellants’ Br. at 3. The Commonwealth then makes
only two arguments in its briefing, neither of which
addresses the substance of the District Court’s ruling on
the as-applied challenge. First, the Commonwealth
claims that neither official has a sufficient connection to
the challenged provisions to be a proper defendant here.
Second, it argues that the District Court’s declaratory
judgment order holding the provisions unconstitutional
as applied but upholding them on their face is
nonsensical and thus provides no practical benefit to the
Aspiring Parties. As the Commonwealth attempts to
wryly put it,
“[i]n other words, § 2911(b) is
constitutional, except that it isn’t.” Id. at 37. Because
the Commonwealth chose not to raise any other issues on
appeal, we must limit our analysis to these two issues,
deeming waived any argument that the provisions, as
applied in combination to the Aspiring Parties, do not
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actually violate their constitutional rights. 11

11

In its opening brief, the Commonwealth notes that
“[t]he legal rub here is that, even assuming some
constitutional injury, or potential injury, has been
inflicted on the litigants . . . that injury was not and could
not be inflicted by the two officials they sued . . . .”
Appellants’ Br. at 3. The Commonwealth then makes the
two arguments discussed above but never addresses the
District Court’s opinion on the merits. The Aspiring
Parties take note of this and state that “the
Commonwealth concedes that the challenged statutory
scheme is unconstitutional as applied to the Minor
Parties.” Appellees’ Br. at 28. In its reply, the
Commonwealth argues that “[t]here was no concession.”
Appellants’ Reply Br. at 3. Instead, the Commonwealth
tries to argue that somehow they were able to dodge the
merits of this case by assuming an injury and only raising
these narrower issues on appeal. This displays a
fundamental misunderstanding of the federal appellate
process: by not challenging the merits of the District
Court’s order, if the Commonwealth loses on the two
arguments it raised in this appeal, the order will remain in
effect and the Commonwealth will not be able to enforce
both provisions against the Aspiring Parties. Indeed, at
oral argument the Commonwealth conceded that this was
a conscious decision, but when asked why it chose such a
litigation strategy, its answer was more opaque than
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A.
While the Commonwealth begins by arguing that
neither official sued here has any connection to the
challenged provisions, we believe the appropriate place
to begin is with its second argument: that the District
Court’s declaratory judgment provided no practical
benefit to the Aspiring Parties.
This is the case, the Commonwealth argues,
because, “with all due respect to the district court, [its
opinion is] incoherent on its face.” Id. at 36. As further
evidence of what appears to be some serious confusion
on the part of the Commonwealth, it then asks, “[s]o
exactly what did the district court ‘declare’ and, more
important, what are [the officials] supposed to do in the
wake of the declaratory judgment against them?” Id. at
37. The Commonwealth does correctly note that the
challenged provisions “remain part of the Election
Code,” but then concludes that, as a result, the officials
cannot “protect the [Aspiring] Parties from the operation
of 25 Pa. Stat. Ann. § 2937” because “[t]hey have no
ability to prevent private parties from invoking that
statutory provision to challenge the nomination papers.”
Id. at 37-38.
This argument shows that the Commonwealth fails
illuminating. See Oral Argument at 00:10:20, Cortes v.
Constitution Party of Pa., (No. 15-3046).
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to appreciate the difference between a facial and an asapplied challenge. “The distinction between facial and
as-applied challenges . . . goes to the breadth of the
remedy employed by the Court.” Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 331 (2010). That is,
“[a]n ‘as applied’ challenge is a claim that the operation
of a statute is unconstitutional in a particular case while a
facial challenge indicates that the statute may rarely or
never be constitutionally applied.”
16 C.J.S.
Constitutional Law § 243; see also United States v. Huet,
665 F.3d 588, 600-01 (3d Cir. 2012) (same); United
States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010)
(same). Here, the District Court held that in many
situations the challenged election laws are constitutional;
it is only when they are applied to certain non-major
parties that the two provisions work in tandem to deprive
these groups of their constitutionally protected rights
under the First and Fourteenth Amendments.12
Accordingly, even though the provisions remain “on the
12

In other words, the District Court found that, even
though § 2937 applies to major and minor parties, “there
is no evidence that Section 2937 is having any impact on
the speech of major parties or their candidates.” The
Constitution Party of Pa. v. Cortes, 116 F. Supp. 3d 486,
509 (E.D. Pa. 2015). Thus, because the statute is not
unconstitutional in the large majority of its applications,
it is not facially invalid. See United States v. Marcavage,
609 F.3d 264, 273 (3d Cir. 2010).
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books,” they cannot both be enforced against the
Aspiring Parties as a result of the District Court’s
ruling.13
To accept this reasoning would mean that there is
no mechanism in place that would allow private parties to
bring a challenge under § 2937 against the Aspiring
Parties. The Commonwealth is therefore wrong that the
signature requirement can be enforced against the
Aspiring Parties in the form of a private suit brought
pursuant to an unconstitutional provision of
Pennsylvania’s
election
code.
Indeed,
the
Commonwealth in its reply brief seems to acknowledge
as much, noting that “[i]f [the Aspiring Parties] were not
required to file nomination papers [under § 2911(b)],
there would not be anything for anyone to challenge . . .
.”14 Appellants’ Reply Br. at 7. As the Commonwealth
13

We express no view as to whether the Commonwealth
could constitutionally enforce only one of the two
provisions against the Aspiring Parties. We are not
confronted with that issue here and need not reach it.
14
The Commonwealth does try to argue, unpersuasively,
that any challenge to the signature requirement is
foreclosed by our earlier decision in Rogers v. Corbett,
468 F.3d at 188, which upheld the facial validity of the
Commonwealth’s signature requirement.
Rogers,
however, was distinguished at every point in this
litigation because the challenge here is not just to the
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further points out, “it is certainly true that but for the
signature requirement there would be no private-party
challenges to those signatures; and but for those
challenges there would be no costs associated with
defending the challenges.” Id. at 15. This demonstrates
just how the relief granted here provides a practical
benefit to the Aspiring Parties: the Commonwealth may
not enforce both § 2911(b) and § 2937 together against
the Aspiring Parties.
Seen in this light, it is readily apparent that the
District Court’s order was not incoherent on its face and
indeed provides the Aspiring Parties with a very practical
benefit. As we held in Aichele, “[i]f 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.”

signature requirement.
Rather, as has been said
repeatedly, the challenge here is to the signature
requirement as applied in combination with the challenge
requirements allowing private actors to object to
nomination papers. This is what caused the alleged
injury here. Cf. Storer v. Brown, 415 U.S. 724, 737
(1974) (“[A] number of facially valid provisions of
election laws may operate in tandem to produce
impermissible barriers to constitutional rights.”).
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757 F.3d at 368.15
B.
The Commonwealth also argues that the District
Court erred because the two state officials sued in this
case had no connection to the enforcement of the
provisions causing harm to the Aspiring Parties, and thus
were improper defendants under 42 U.S.C. § 1983.
Specifically, the Commonwealth asserts that the
Secretary of the Commonwealth and its Commissioner of
the Pennsylvania Bureau of Commissions, Elections, and
Legislation are simply “some hapless state official[s]
who [are] at best . . . bystander[s].” Appellants’ Br. at
33.
As we have held on multiple occasions, while suits
against a non-consenting State are barred by the Eleventh
Amendment, a party can sue a state official under Ex
Parte Young for acting in violation of a federal law or the
Constitution:
The theory behind Young is that a suit to halt
the enforcement of a state law in conflict
with the federal constitution is an action
against the individual officer charged with
15

While this language was in reference to redressability
for purposes of standing, its reasoning is certainly
persuasive.
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that enforcement and ceases to be an action
against the state to which sovereign
immunity extends; the officer is stripped of
his official or representative character and
becomes subject to the consequences of his
individual conduct.
MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 506
(3d Cir. 2001). Such a suit, however, cannot simply seek
to make the state officials “representative[s] of the
state.” Ex parte Young, 209 U.S. 123, 157 (1908).
Instead, “[i]n making an officer of the state a party
defendant in a suit to enjoin the enforcement of an act
alleged to be unconstitutional, it is plain that such officer
must have some connection with the enforcement of the
act.” Id. That said, we have held that even “entirely
ministerial” duties can be sufficient under Young,
because “the inquiry is not into the nature of an official’s
duties but into the effect of the official’s performance of
his duties on the plaintiff’s rights.” Finberg v. Sullivan,
634 F.2d 50, 54 (3d Cir. 1980).
More specifically, this case was brought under 42
U.S.C. § 1983, which allows an individual to bring suit
against a state official who is acting “under color of state
law”—a requirement that parallels the “state action”
requirement elucidated in Ex parte Young actions brought
pursuant to the Fourteenth Amendment. See, e.g., Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49 & n.8
(citing Lugar v. Edmonson Oil Co., 457 U.S. 922, 935
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n.18 (1982)). Despite the Commonwealth’s arguments to
the contrary, the Supreme Court’s holding in American
Party of Texas v. White, 415 U.S. 767 (1974), makes
clear that a § 1983 claim challenging the combined effect
of ballot access provisions is properly brought against a
state’s election official, such as the Secretary of the
Commonwealth. Id. at 779 (reviewing minor political
parties’ § 1983 claim for declaratory and injunctive relief
brought against the Texas Secretary of State challenging
“various aspects of the Texas ballot qualification
system as they interact with each other”) (emphasis
added).
Our case law likewise supports the notion that the
Appellants in this case play a sufficient role in
administering § 2911(b) and other ballot-access
provisions to be named as the defendants in Appellees’
§1983 suit. See Rogers, 468 F.3d at 190 (considering the
facial constitutionality of § 2911(b) in a § 1983 suit
brought against Secretary Cortes himself); Belitskus, 343
F.3d at 638 (reviewing the merits of a § 1983 suit against
the Secretary of the Commonwealth and the Election
Commissioner challenging filing fees associated with
accessing the Pennsylvania ballot, noting that the
Secretary of the Commonwealth “is responsible for
overseeing various aspects of the Commonwealth’s
election process, including receipt of candidates’
nomination petitions and filing fees” and that the
Election Commissioner “has administrative responsibility
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for various aspects of the election process, including
ballot access”). While Appellees’ suit challenges the
combined effect of § 2911(b) and § 2937, it appears clear
that, based on our own jurisprudence, § 2911(b) is
sufficient to bring the named defendants into this suit.
Despite the clear history of allowing § 1983 suits
to proceed against election officials in cases similar to
this one, the Commonwealth attempts to pin blame for
the harm to the Aspiring Parties on everyone except the
officials who were sued. First, the Commonwealth
claims that it is the Commonwealth Court that
adjudicates the disputes, “without the involvement of
executive branch officials.” Appellants’ Br. at 31. The
Commonwealth then argues that it is not actually the
Commonwealth Court, but the individual challengers
suing under § 2937 who cause injury to the Aspiring
Parties. Thus, according to the Commonwealth, because
“neither [the] Commonwealth Court nor private parties
are obliged to follow the district court’s decision,”
“Secretary Cortes and Commissioner Marks [cannot]
protect the [Aspiring] Parties from the operation of 25
Pa. Stat. Ann. § 2937.” This is because they have “no
ability” to prevent private suit under the statute or to
prevent how the Commonwealth Court will rule on the
challenge. Id. at 37-38.
This argument falls apart once one properly
understands the District Court’s opinion.
The
Commonwealth seems to believe that, because both
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provisions are facially constitutional, the Aspiring Parties
still have to gather signatures and submit them for review
by the Commonwealth.16
This argument, again,
misunderstands the fundamental difference between
facial and as-applied challenges. As discussed above, the
District Court’s order prevents the Commonwealth from
enforcing the two provisions together against the
Aspiring Parties. Thus, the Aspiring Parties cannot be
forced to both collect the number of signatures required
under § 2911(b) and defend those signatures in the
§ 2937 challenge process. Once viewed in this way, the
argument that the two officials sued here have no
connection to these election code provisions is, to say the
least, off the mark.
Indeed, the very actions of the two officials in this
case show how incongruous the Commonwealth’s
position is. As brought to our attention by the Aspiring
Parties in a Rule 28(j) letter, the Commonwealth’s
Department of State sent a letter to the Aspiring Parties
explaining that, under § 2911(b), all political body
candidates for statewide office must collect 21,775
16

In addition, at oral argument, the Commonwealth
admitted that, administratively, the officials sued here
were responsible for “preparing the ballots” and thus
listing who is eligible as a candidate in that election.
Oral Argument at 00:7:05, Cortes v. Constitution Party
of Pa., (No. 15-3046).
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signatures in 2016. The letter then explained that
because “[n]o court has issued any decision altering the
duty of candidates to comply with 25 P.S. § 2911(b),”
both Secretary Cortes and Commissioner Marks “are
obligated to follow 25 P.S. § 2911(b) as usual and intend
to do so in 2016.” The clear import of this letter is that
the two named officials plan to enforce §§ 2911(b) and
2937 against the Aspiring Parties in 2016. While this
would be in clear violation of the District Court’s order
for the reasons discussed above, the letter on its face also
refutes the claim that neither official has any connection
to the enforcement of the challenged provisions.17
Even putting aside the admissions of the
Commonwealth, Pennsylvania’s election code is replete
with provisions discussing the role Secretary Cortes plays
in administering it. Section 2911(b), for example, vests
in the Secretary the statutory duty to “receive and
determine, as herein provided, the sufficiency” of
nomination papers. 25 Pa. Stat. Ann. § 2621(d); id.
§ 2911(b). Indeed, according to the code, “[w]hen any
nomination petition, nomination certificate or nomination
paper is presented in the office of the Secretary of the
Commonwealth or of any county board of elections for
17

When pressed at oral argument, the Commonwealth
also admitted that the two officials here have a role to
play in enforcing § 2911(b). Oral Argument at 00:01:20,
Cortes v. Constitution Party of Pa., (No. 15-3046).
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filing . . . , it shall be the duty of the said officer or board
to examine the same.” Id. § 2936. Further, as we noted
in Aichele, “[t]o appear on the general election ballot,
minor parties and political bodies are required to file
nomination papers with the Secretary of the
Commonwealth.” 757 F.3d at 351 (emphasis added). In
addition, it is up to the Secretary of the Commonwealth
to determine “which organizations are political parties
within the State.” 25 Pa. Stat. Ann. § 2861. Moreover,
under § 2865, the Secretary of the Commonwealth is in
charge of “designating all the offices for which
candidates are to be nominated therein.” These statutory
requirements clearly illustrate the necessary connection
between the challenged statutory scheme and the
officials.18 Finally, § 2937 itself also refers to the
Secretary of the Commonwealth, requiring him to open
his office on the last day available for candidates to
If this were not enough, the Commonwealth’s website
also explains that Commissioner Marks “will oversee the
administration of the Elections, Notaries Public,
Commissions and Legislation programs. He is also
responsible for planning, developing and coordinating
statewide implementation of the Election Code.”
Pennsylvania
Department
of
State,
http://www.dos.pa.gov/about-us/Pages/Commissioner,Bureau-of-Commissions,-Elections,-andLegislation.aspx#.VugKoOIrKig (last visited April 18,
2016).
18

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withdraw their nomination petitions or for objections to
nomination petitions to be filed; while this reference does
not bestow upon the Secretary an active role in the
challenge process, it certainly creates at least a minor
administrative role in the challenge process and indicates
that, by virtue of his other duties, the Secretary is bound
up in the § 2937 challenge process.
Furthermore, we have already addressed the
Commonwealth’s related claim that proper defendants in
this case are the individual citizens challenging
nomination papers under § 2937. In Aichele, we held
regarding standing that “[t]he 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.” 757 F.3d
at 367. Indeed, we went on to note that “[i]f 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 [Aspiring] Parties’
candidates to run for office and build functioning
political parties.” Id. at 368.
Finally, we note that the Commonwealth’s attempt
to separate the two challenged provisions, and thus
disclaim responsibility for administering § 2937, also
fails. Permitting such a fragmentation of the Aspiring
Parties’ claims would prevent meaningful review of the
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real harm caused by the statutory scheme in place here.
See Storer v. Brown, 415 U.S. 724, 737 (1974) (“[A]
number of facially valid provisions of election laws may
operate in tandem to produce impermissible barriers to
constitutional rights.”); Williams v. Rhodes, 393 U.S. 23,
34 (1968) (looking at the “totality” of Ohio’s election
laws
when
determining
whether
they
are
unconstitutional). We therefore hold that both officials
sued by the Aspiring Parties had a sufficient connection
to the enforcement of the challenged provisions as
required under Ex Parte Young.
C.
Our holding, of course, does not prevent the
legislature from amending its election code to create new,
constitutional, provisions that regulate access to the
general election ballot. Nor do we express any view as to
whether the Commonwealth could choose to enforce only
one or the other provision against the Aspiring Parties.
We simply hold that what the Commonwealth cannot do
is avoid the clear import of the District Court’s order in
this case: that §§ 2911(b) and 2937, when enforced
together, are unconstitutional as applied to the Aspiring
Parties.
III.
For the reasons stated above, we will affirm the
District Court’s order granting summary judgment on
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Counts I and II in favor of the Aspiring Parties.

31