(Christian Schwier)

Minor political parties can challenge Pennsylvania’s laws that regulate their ability to be put on the ballot, the U.S. Court of Appeals for the Third Circuit has ruled in a reversal of the district court.

In a split decision, the appeals court held that the Green Party, the Constitution Party and the Libertarian Party have standing to bring their challenge. The district court and one judge on the three-member appeals court panel had disagreed.

“We emphasize at the outset that we are not prejudging the merits of the case,” Third Circuit Judge Kent A. Jordan wrote on behalf of the majority, which included Senior Judge Jane Richards Roth. “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.”

Although he made clear several times that the court’s opinion addressed only the issue of standing, Jordan noted that the state “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.

“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, but then to contend in the standing context that those same provisions are not, in fact, aimed at the very same parties.”

The majority allowed for the challenging parties to bring their suit, with Jordan saying, “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.”

Judge Thomas L. Ambro dissented, saying, “Were the law on standing a blank slate, perhaps the plaintiffs 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.”

The provisions of Pennsylvania law that are challenged were passed in 1937 and include a requirement for non-major parties—those other than the Democratic and Republican parties—to submit signatures in support of their nominees and expose the parties and their candidates to the imposition of legal costs if their papers are disputed and rejected.

Both Ambro and the district court saw the political parties’ argument that they have a legitimate fear of bearing significant legal costs as too far removed to confer standing.

However, Jordan noted that precedent from the state Supreme Court over the last decade has established the cost-shifting statute as a “cudgel” that major parties use to tamp down minor parties that want to run candidates in close elections.

In 2004, Ralph Nader and his running mate on the Green Party ticket were ordered to pay more than $80,000 in costs under the Pennsylvania statute after their petition was challenged.

“That ruling appears to mark the first time costs were ever imposed pursuant to [the statute], and the reverberations from that decision have been significant,” Jordan said.

The minor parties that brought the suit argued that the transformation of the statute following that decision has led several of their candidates to withdraw from various elections out of fear of potential legal fees.

Jordan pointed to two examples—one from the Republican Party targeting the Libertarians and one from the Democrats targeting the Green Party—where the major parties used the cost-shifting statute and the Nader precedent to keep small-party candidates off the ballot.

“The threat of cost-shifting, entirely believable in light of recent history, chills the aspiring parties’ electioneering activities,” Jordan said.

Oliver Hall of the Center for Competitive Democracy in Washington, D.C., represented the challenging parties and said Pennsylvania’s regulatory scheme is “unique in the entire country.”

Any state that has had a similar law has had it struck down based on precedent from the civil rights era, when the courts made clear that states can’t impose any kind of financial burden on voters or candidates by striking poll taxes and candidate filing fees, Hall said.

Claudia Tesoro of the Pennsylvania Attorney General’s Office argued on behalf of the state. The office declined to comment on the Third Circuit’s opinion.

Saranac Hale Spencer can be contacted at 215-557-2449 or Follow her on Twitter @SSpencerTLI.

(Copies of the 54-page opinion in The Constitution Party v. Aichele, PICS No. 14-1082, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)