Belitskus v. Pizzingrilli

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

9-11-2003

Belitskus v. Pizzingrilli

Precedential or Non-Precedential: Precedential

Docket No. 01-3747

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PRECEDENTIAL

Filed September 11, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos: 01-3747 and 01-3824

WILLIAM M. BELITSKUS; THOMAS ALAN LINZEY;

BARBARA KNOX; JOHN STITH; ERIC PRINDLE;

JENNARO PULLANO; RALPH NADER;

NADER 2000 PRIMARY COMMITTEE;

PENNSYLVANIA GREEN PARTY; WILL DONOVAN, III

v.

KIM PIZZINGRILLI, in her official capacity

as Secretary of State of Pennsylvania;

RICHARD FILLING, in his official capacity

as the Commissioner overseeing Pennsylvania’s

Bureau of Commissions, Elections and Legislation,

Appellants in Docket No. 01-3747

Thomas Alan Linzey, John Stith*

Pennsylvania Green Party and Will Donovan III,

Appellants in Docket No. 01-3824

* Dismissed Per Clerk’s 11/29/01 Order.

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 00-cv-01300)

District Judge: Honorable A. Richard Caputo

Argued on September 10, 2002

Before: NYGAARD, ROTH and WEIS, Circuit Judges

(Opinion filed September 11, 2003)

2

D. Michael Fisher

Attorney General

John G. Knorr, III (Argued)

Chief Deputy Attorney General

Chief, Appellate Litigation Section

Gregory R. Neuhauser

Senior Deputy Attorney General

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellants/Cross

Appellees

Bonita P. Tenneriello, Esquire

(Argued)

John C. Bonifaz

Brenda Wright

Lisa J. Danetz

National Voting Rights Institute

One Bromfield Street, Third Floor

Boston, Massachusetts 02108

Jordan B. Yeager, Esquire

Boockvar & Yeager

2 West Butler Avenue

P.O. Box 1884

Doylestown, PA 18901

David Kairys, Esquire

1719 N. Broad Street

Philadelphia, PA 19122

Counsel for Appellees/Cross

Appellants

OPINION OF THE COURT

ROTH, Circuit Judge:

The Pennsylvania election code requires candidates for

various local, state, and national offices to pay a filing fee

prior to having their names placed on the ballot. During the

2000 campaign, plaintiffs challenged the filing fee,

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contending that the mandatory nature of the fee, coupled

with the absence of an alternative means by which indigent

candidates might gain access to the ballot, violated the

Equal Protection Clause of the Fourteenth Amendment. The

District Court found the mandatory filing fee

unconstitutional as applied to John Stith, a candidate for

the state legislature who demonstrated his inability to pay

the fee without financial hardship. The District Court

therefore permanently enjoined the Commonwealth1 from

applying the challenged fee structure to Stith or to other

similarly situated candidates.

The Commonwealth appealed on the grounds that Stith

had ample resources to pay the fee, that the fee was

constitutional as applied to Stith, and that, even if the fee

was unconstitutional, the District Court’s order was unduly

broad and vague. The remaining plaintiffs, Thomas Linzey,

a candidate for state attorney general, William Donovan, a

registered voter supporting Linzey’s candidacy, and the

Pennsylvania Green Party, of which Stith, Linzey, and

Donovan were members, have cross-appealed the District

Court’s granting of summary judgment against them.

I. Background

A. The Commonwealth’s Ballot Access Laws

The Pennsylvania ballot access law requires candidates

for various public offices to pay a filing fee in order to have

their names placed on the general election ballot.

Specifically, the law provides: “Each person filing any

nomination petition shall pay for each petition, at the time

of filing, a filing fee . . . and no nomination petition shall be

accepted or filed, unless and until such filing fee is paid

. . . .” 25 Pa. Stat. Ann. § 2873(b.1) (emphasis added). The

fees range from $5 to $200, depending on the office sought.

The law applies equally to all candidates regardless of

1. For ease of reference, the two defendants, Kim Pizzingrilli, Secretary of

State, and Richard Filling, Commissioner of the Bureau of Commissions,

Elections, and Legislation, both of whom were sued in their official

capacity, will be collectively referred to throughout this Opinion as “the

Commonwealth.”

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political affiliation. However, it contains no waiver

provisions or other means for an indigent candidate to gain

access to the ballot. The Commonwealth concedes that it

has received “several inquiries” regarding fee waivers but

that it keeps no official record of such inquiries and is

unable to state the exact number received.

Candidate filing fees for statewide elections are paid

when the candidates’ nomination petitions are filed with the

Secretary of the Commonwealth. 25 Pa. Stat. Ann.

§§ 2873(a) & 2873(b.1). The total collected varies by year,

averaging approximately $70,000 to $80,000 in even years,

and $22,000 to $23,000 in odd years. These funds are used

to provide a variety of election-related services, including (1)

review of nomination petitions and papers to ensure

compliance with applicable requirements, (2) review of

documents pertaining to candidate withdrawals and

substitutions, (3) creation and distribution of election

information for candidates, and (4) consideration of and

responses to candidate inquiries. The total cost of such

services is estimated to be approximately $46,000 in even

years, and $23,000 in odd years. The revenue generated by

the filing fees is not, however, expressly earmarked for the

funding of these services. It is instead placed into the

Commonwealth’s general operating fund. See 25 Pa. Stat.

Ann. § 2873(b.1).

In addition to paying the required filing fees, candidates

must also comply with the statutory signature

requirements. Specifically, candidates for statewide office

must collect signatures equal to two percent of the largest

vote total for any statewide candidate in the last election.

25 Pa. Stat. Ann. § 2911(b). Those seeking other offices

must obtain signatures equal to two percent of the largest

vote total received by any candidate in their district during

the last election. Id. However, these signature requirements

are in no way correlated with, or affected by, the applicable

filing fee. Thus, although the number of signatures needed

to obtain ballot access will naturally vary from one district

to another, candidates for positions in the state legislature

all pay the same filing fee regardless of the size of their

district or the number of signatures required.

5

B. Factual Background

Plaintiff John Stith sought to have his name placed on

the November 2000 ballot as the Green Party candidate for

State Representative in the 77th District. As such, he was

required to pay a $100 filing fee. To support his allegation

that he would suffer financial hardship if compelled to pay

the fee, Stith has submitted evidence that he had an

adjusted gross income of approximately $35,000 in 1999

and $11,000 in 2000. As of July 2000, his take-home pay

was approximately $1,200 per month, compared to his

monthly living expenses of $1,073.2 At the time the fee was

due, Stith’s assets included $50 in campaign funds and a

personal bank account balance of $1,500. Among his

liabilities were $40,000 in student loans and $3,500 in

credit card debt. Stith made a loan of $1,000 of his own

money to his campaign. The loan was repaid with campaign

funds following the election.3

Plaintiff Thomas Linzey, the Green Party’s candidate for

Attorney General, was required to pay a filing fee of $200 in

order to gain access to the ballot. Like Stith, Linzey alleged

that he too “would suffer financial hardship” if forced to pay

the applicable fee. Linzey’s adjusted gross income for the

year 2000 was $4,611. He incurred average monthly living

expenses of $380 ($150 for rent, $120 for food, $70 for

utilities, $20 in credit card payments, $10 for clothing, and

$10 for fuel and maintenance for his housemate’s car).

Linzey received a $200 check from a campaign supporter

but was unable to cash it because the check was made out

to the “Linzey for Attorney General Committee,” an entity

which did not exist.

Plaintiff William Donovan was a student at Pennsylvania

State University at the time the complaint was filed. He was

registered to vote in the Commonwealth during the

2. There is some debate between the parties as to the proper method for

calculating Stith’s monthly income and expenses. Because we would

reach the same result regardless of which set of figures is used, we will,

for the sake of argument, accept those proffered by the Commonwealth.

3. Although Stith had collected only $50 in campaign contributions at

the time the filing fee was due, he had raised a total of approximately

$4,800 by the time of the election.

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November 2000 election and was a supporter of various

Green Party candidates, including Linzey. His gross income

for the year 2000 was $5,821.68. Donovan no longer lives

in Pennsylvania, and there is no evidence in the record to

suggest he plans to return at any time in the future.

Plaintiff Pennsylvania Green Party, of which Stith, Linzey,

and Donovan are members, is a political body as defined by

Pennsylvania law. See 25 Pa. Stat. Ann. § 2831. It alleges

that many of its candidates “would suffer financial

hardship” as a result of the continued application of the

challenged fee structure. The Party asserts that its

members, many of whom “are drawn from the less affluent

segment of the Pennsylvania community,” support their

chosen candidates “regardless of their ability to pay the

filing fees.” Id.

Defendant Kim Pizzingrilli is Secretary of State of the

Commonwealth. As such, she is responsible for overseeing

various aspects of the Commonwealth’s election process,

including receipt of candidates’ nomination petitions and

filing fees. Defendant Richard Filling serves as

Commissioner for the Bureau of Commissions, Elections

and Legislation and has administrative responsibility for

various aspects of the election process, including ballot

access. Both defendants were sued in their official capacity.

II. Procedural History

Plaintiffs filed their complaint on July 24, 2000.

Pursuant to 42 U.S.C. § 1983, they seek, inter alia,

declaratory and injunctive relief on behalf of a number of

individuals and political organizations.4 Specifically, they

allege that the statutes establishing the Commonwealth’s

ballot access scheme violate the Equal Protection Clause of

the Fourteenth Amendment.

On July 25, 2000, the District Court denied plaintiffs’

request for a temporary restraining order but then, on July

4. Of these, only Stith, Linzey, Donovan, and the Pennsylvania Green

Party are before us on appeal. The remaining plaintiffs were dismissed

by joint stipulation, see Fed. R. Civ. P. 41, prior to the filing of the cross-

motions for summary judgment.

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28, the court granted a preliminary injunction as to Stith

and “any otherwise qualified candidate who is unable to

pay the cost of the fee.” This injunction required the

Commonwealth to provide Stith and other similarly situated

candidates with “an alternative measure or measures for

gaining access to the ballot prior to or at the time of the

August 1, 2000 deadline.”

As a result of the preliminary injunction, the

Commonwealth offered to exempt Stith and Linzey from

payment of their respective fees upon their execution of an

affidavit declaring that they could not comply with the law

without suffering financial hardship. Stith and Linzey both

signed affidavits and were placed on the November 2000

ballot without having to pay the required fees.5

The District Court entered a permanent injunction on

August 20, 2001, enjoining the Commonwealth from

applying the statutory fee to “Plaintiff Stith or other

candidates who cannot afford to pay the filing fee.”

Belitskus v. Pizzingrilli, No. 3:CV-00 1300, 2001 WL

34064600, at *4 (M.D. Pa. Aug. 20, 2001). The permanent

injunction further prohibited the Commonwealth from

“requiring candidates to pay a filing fee they cannot afford

in order to appear on the ballot.” Id. Because the District

Court concluded that Linzey and Donovan failed to

demonstrate entitlement to relief, summary judgment was

granted to the Commonwealth with respect to their claims.6

Id. at *2 n.2.

On August 28, 2001, plaintiffs moved to amend the

injunction to include Linzey. The District Court denied this

motion, stating that the broad scope of the order permitted

5. Copies of these affidavits were not included in the record. However,

neither party disputes this issue, and we therefore accept Plaintiffs’

representations as to the affidavits’ existence and content.

6. This portion of the District Court’s ruling has caused some confusion.

The court mistakenly classified Donovan as a candidate, rather than a

voter, and therefore granted summary judgment to the Commonwealth

based at least in part on the fact that the court believed Donovan had

failed to sufficiently establish his inability to pay the required fee. In

addition, the order fails to dispose of the claim asserted by the

Pennsylvania Green Party. We address both of these issues below.

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Linzey to attempt at a later time to demonstrate his

inability to pay the required fee, thereby making such an

amendment unnecessary. This appeal and cross-appeal

followed.

III. Jurisdiction and Standards of Review

Plaintiffs 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 issuance or

refusal to modify an injunction pursuant to 28 U.S.C.

§ 1292(a).

We exercise plenary review over all jurisdictional

questions, including whether a plaintiff has standing to

assert a particular claim, see General Instrument Corp. of

Del. v. Nu-Tek Elec. & Mfg., Inc., 197 F.3d 83, 86 (3d Cir.

1999), and whether a plaintiff ’s claim is moot. See

Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 295

(3d Cir. 2001). Our review of the District Court’s summary

judgment determinations is also plenary, and we utilize the

same test applied below. Saldana v. Kmart Corp., 260 F.3d

228, 231 (3d Cir. 2001). Thus, “[s]ummary judgment is

appropriate ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.’ ” Chisolm v. McManimon, 275

F.3d 315, 321 (3d Cir. 2001) (quoting Fed. R. Civ. P. 56(c)).

Summary judgment is not appropriate, however, “if a

disputed fact exists which might affect the outcome of the

suit under the controlling substantive law.” Josey v. John

R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993).

IV. Discussion

A. Standing

Because “ ‘[t]he existence of a case or controversy is a

prerequisite to all federal actions, including those for

declaratory or injunctive relief,’ ” Philadelphia Fed’n of

Teachers v. Ridge, 150 F.3d 319, 322-23 (3d Cir. 1998)

9

(quoting Presbytery of N.J. of Orthodox Presbyterian Church

v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994)), we first must

consider the Commonwealth’s contention that plaintiffs

lack standing to challenge the mandatory filing fee. The fact

that the Commonwealth asserts this argument for the first

time on appeal is immaterial, as “[s]tanding represents a

jurisdictional requirement which remains open to review at

all stages of the litigation.” National Org. for Women, Inc. v.

Scheidler, 510 U.S. 249, 255 (1994); see also Public Interest

Research Group of N.J., Inc. v. Magnesium Elektron, Inc.,

123 F.3d 111, 117 n.5 (3d Cir. 1997) (“Like any

jurisdictional requirement, standing cannot be waived.”).

In order to establish a case or controversy, a plaintiff

must demonstrate the following three elements:

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 complained of — the injury has to be

fairly . . . traceable to the challenged action of the

defendant, and not . . . the 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.

AT&T Communications of N.J., Inc. v. Verizon N.J., Inc., 270

F.3d 162, 170 (3d Cir. 2001) (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992)). “These requirements

ensure that plaintiffs have a ‘personal stake’ or ‘interest’ in

the outcome of the proceedings, ‘sufficient to warrant . . .

[their] invocation of federal-court jurisdiction and to justify

exercise of the court’s remedial powers on . . . [their]

behalf.’ ” Joint Stock Soc’y v. UDV N. Am., Inc., 266 F.3d

164, 175 (3d Cir. 2001) (quoting Wheeler v. Travelers Ins.

Co., 22 F.3d 534, 537-38 (3d Cir. 1994)).

In addressing this issue, the Commonwealth argues that

neither Stith nor Linzey suffered a cognizable injury

because both possessed sufficient funds to pay the

applicable filing fees at the time they were due. Because the

10

claims asserted by Donovan and the Pennsylvania Green

Party are derivative of those brought by Stith and Linzey,

the Commonwealth concludes that they too are without

standing to challenge its fee structure.

We disagree. Turning first to Stith, we note that he

possessed only $50 in campaign funds at the time the fee

was due. Although he had a personal savings account

containing approximately $1,500, his liabilities included

roughly $43,500 in unpaid student loans and credit card

debt. In addition, Stith’s monthly income only marginally

exceeded his monthly expenses, and he was unable to

afford basic expenses such as health insurance, dental

care, and prescription eyeglasses. Paying the required fee

would have completely depleted his campaign funds and

required him to delve into his limited personal assets.

Accordingly, we conclude that Stith has successfully

demonstrated sufficient injury to satisfy the requirements

of Article III. See Joint Stock Soc’y, 266 F.3d at 177 (“All

that the Article III’s injury-in-fact element requires is ‘an

identifiable trifle’ of harm”) (quoting United States v.

Students Challenging Regulatory Agency Procedures, 412

U.S. 669, 689 (1973)).

In so concluding, we reject the Commonwealth’s

argument that a candidate challenging a mandatory filing

fee must establish that payment of the fee would result in

the complete depletion of personal or campaign funds in

order to demonstrate injury to a protected interest. See,

e.g., Green v. Mortham, 155 F.3d 1332 (11th Cir. 1998)

(standing not questioned where candidate used campaign

contributions to pay filing fee under protest during

pendency of ballot access challenge); Harper v. Vance, 342

F. Supp. 136, 140 (N.D. Ala. 1972) (three judge panel)

(candidate considered “unable” to pay mandatory filing fee

where doing so would leave him “nearly destitute”).7 Rather,

7. As noted by the court in Harper, the rejection of this argument is

consistent with the approach taken by the Supreme Court regarding

indigent plaintiffs seeking permission to proceed in forma pauperis:

We cannot agree with the court below that one must be absolutely

destitute to enjoy the benefit of the statute. *** To say that no

11

we conclude that a significant impact of such a fee on an

indigent candidate’s ability to meet personal living expenses

and on the candidate’s campaign strategy and allocation of

resources is sufficient to satisfy the requirements of Article

III. Indeed, similar harms have often been held to confer

standing in the political context. See, e.g., Becker v. Federal

Election Comm’n, 230 F.3d 381, 386-87 (1st Cir. 2000)

(candidate’s claim that challenged practice of allowing

corporate sponsorship of presidential debates affected use

of his campaign funds and overall strategy held to establish

standing); Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 37 (1st

Cir. 1993) (candidate’s forced choice regarding the

acceptance of public campaign financing affected campaign

strategy and therefore “constitute[d] an injury of a kind

sufficient to confer standing”); Fulani v. Krivanek, 973 F.2d

1539, 1544 (11th Cir. 1992) (standing not questioned

where candidate asserted that paying signature verification

fee “would impose an undue burden by diverting funds

from her party’s attempt to identify, reach, and

communicate with potential supporters”).

Because Stith’s injury is clearly traceable to the actions

of the Commonwealth and was redressed by a favorable

persons are entitled to the statute’s benefits until they have sworn

to contribute to payment of costs, the last dollar they have or can

get, and thus make themselves and their dependents wholly

destitute, would be to construe the statute in a way that would

throw its beneficiaries into the category of public charges. *** [T]he

result [is not] desirable if the effect of this statutory interpretation is

to force a litigant to abandon what may be a meritorious claim in

order to spare himself complete destitution.

Harper, 342 F. Supp. at 140 (quoting Adkins v. E.I. DuPont De Nemours

& Co., 335 U.S. 331, 339-40 (1948)). See also Jones v. Zimmerman, 752

F.2d 76, 78-79 (3d Cir. 1985) (holding that district court abused its

discretion in denying in forma pauperis status to prisoner facing a $5.00

filing fee when the prisoner earned $15.00 per month and had a prison

savings account containing $17.39); Bullock v. Suomela, 710 F.2d 102,

103 (3d Cir. 1983) (district court abused its discretion in denying in

forma pauperis status and requiring prisoner to pay partial filing fee of

$4.00 out of net assets of $4.76); Souder v. McGuire, 561 F.2d 820, 823-

24 (3d Cir. 1975) (district court erred in denying in forma pauperis status

to prisoner with total assets of $50.07).

12

decision below, we conclude that Stith has also satisfied the

remaining elements of the case or controversy requirement.

See AT&T Communications, 270 F.3d at 170. We conclude

therefore that he has demonstrated that he has standing to

challenge the mandatory filing fee.

For the reasons stated above, we also hold that Linzey,

whose financial resources were even more limited than

Stith’s, has standing. Indeed, given the fact that Linzey’s

living expenses totaled $4,560 ($380 per month for twelve

months) in 2000, paying the required $200 filing fee would

have caused his expenses to exceed his adjusted gross

income of $4,611. Moreover, the fact that Linzey received a

single $200 campaign donation that would have exactly

covered the cost of his fee does not alter our analysis. Our

conclusion is consistent with the Supreme Court’s rejection

of forced reliance upon campaign contributions to satisfy

mandatory filing fees. See Bullock v. Carter, 405 U.S. 134,

144 (1972).

Finally, because the alleged injuries suffered by Donovan

and the Green Party are derivative of those of Stith and

Linzey, see id. at 143; Henderson v. Fort Worth Independent

School District, 526 F.2d 286, 288 n.1 (5th Cir. 1976) (citing

Bullock for the proposition that a voter wishing to support

a candidate barred from the ballot “clearly has standing” to

challenge the ballot access law at issue), we hold that they

too have satisfied the applicable standing requirements.

B. The Supreme Court’s Ballot Access Jurisprudence

Turning then to the merits of plaintiffs’ challenge to the

Pennsylvania mandatory filing fee, Article I, Section 4,

Clause 1 of the Constitution grants to the individual states

not only the power to regulate congressional elections but

also the inherent power “to regulate their own elections” as

well. Burdick v. Takushi, 504 U.S. 428, 433 (1992). Indeed,

“ ‘as a practical matter, there must be a substantial

regulation of elections if they are to be fair and honest and

if some sort of order, rather than chaos, is to accompany

the democratic process.’ ” Id. (quoting Storer v. Brown, 415

U.S. 724, 730 (1974)). Nevertheless, a state’s power to

regulate elections “must be exercised in a manner

consistent with the Equal Protection Clause of the

Fourteenth Amendment.” Bullock, 405 U.S. at 141.

13

In order to exercise this inherent power, even though

“ ‘the right to elect legislators in a free and unimpaired

fashion is a bedrock of our political system,’ ” Lubin v.

Panish, 415 U.S. 709 (1974) (quoting Reynolds v. Sims, 377

U.S. 533, 562 (1964)), the states may limit access to the

ballot. For example, they may enact laws limiting the

number of names appearing on a ballot “in order to

concentrate the attention of the electorate on the selection

of a much smaller number of officials.” Id. at 712 (citation

and internal quotation omitted). These restrictions afford

voters “ ‘the opportunity of exercising more discrimination

in their use of the franchise.’ ” Id. Accordingly, mandatory

filing fees are widely used as a means of both limiting ballot

access and recouping some of the costs incurred in the

administration of public elections. Id. at 713.

Nevertheless, the Supreme Court has twice held filing

fees to be unconstitutional if, as here, the state has failed

to provide an alternative means of ballot access for indigent

candidates unable to make the required payment. First, in

Bullock, the Court invalidated a Texas statute that

established a mandatory filing fee but failed to provide any

other means of ballot access. Although the challenged fee in

Bullock was both “far from exceptional” in size, 405 U.S. at

138 and limited to party primaries, id. at 140, the Court

concluded that its exclusionary effect was “neither

incidental nor remote.” Id. at 144. Rather, the Court held

that the statutory scheme at issue tended “to deny some

voters the opportunity to vote for a candidate of their

choosing,” while simultaneously giving affluent voters “the

power to place on the ballot their own names or the names

of persons they favor.” Id. The Court therefore concluded

that the challenged fee structure fell “with unequal weight

on voters, as well as candidates, according to their

economic status.” Id.

The Supreme Court next addressed the mandatory filing

fee issue in Lubin. There, it again recognized the state’s

legitimate interest in limiting ballot access:

A procedure inviting or permitting every citizen to

present himself to the voters on the ballot without

some means of measuring the seriousness of the

candidate’s desire and motivation would make rational

14

voter choices more difficult because of the size of the

ballot and hence would tend to impede the electoral

process. That no device can be conjured to eliminate

every frivolous candidacy does not undermine the

state’s effort to eliminate as many such as possible

. . . . Rational results within the framework of our

system are not likely to be reached if the ballot for a

single office must list a dozen or more aspirants who

are relatively unknown or have no prospects of

success.

415 U.S. at 715-16.

The Court nevertheless held that this interest “must be

achieved by a means that does not unfairly or

unnecessarily burden either a minority party’s or an

individual candidate’s equally important interest in the

continued availability of political opportunity.” Id. at 716.

Accordingly, because fee statutes can “operate to exclude

some potentially serious candidates from the ballot without

providing them with any alternative means of coming before

the voters,” the Court held that, “in the absence of

reasonable alternative means of ballot access, a State may

not, consistent with constitutional standards, require from

an indigent candidate filing fees he cannot pay.” Id. at 718.

It is against this backdrop that we consider the challenge

before us.

C. Anderson Balancing

Our first step in analyzing equal protection claims is to

determine the appropriate level of scrutiny. Reform Party of

Allegheny Co. v. Allegheny Co. Dep’t of Elections, 174 F.3d

305, 314 (3d Cir. 1999) (en banc). Making this

determination requires an analysis of the challenged fee’s

effect on plaintiffs’ rights. Id.

In examining this issue we note that, as a practical

matter, it is self-evident that state statutes regulating ballot

access “ ‘inevitably affect — at least to some degree — the

individual’s right to vote and his right to associate with

others for political ends.’ ” Council of Alternative Political

Parties v. Hooks, 179 F.3d 64, 70 (3d Cir. 1999) (Alternative

Political Parties II) (quoting Anderson, 460 U.S. at 788).

Nevertheless, “not all such restrictions are

15

unconstitutional.” Id. Rather, “[w]here the statute imposes

only a minimal nondiscriminatory burden on minor parties,

yet affords ‘reasonable access’ to the ballot, it generally has

been upheld.” Id. (citing Burdick, 504 U.S. at 438). Indeed,

subjecting “every voting regulation to strict scrutiny and

. . . requir[ing] that the regulation be narrowly tailored to

advance a compelling state interest . . . would tie the hands

of States seeking to assure that elections are operated

equitably and efficiently.” Burdick, 504 U.S. at 433.

“Accordingly, the mere fact that a State’s system ‘creates

barriers . . . tending to limit the field of candidates from

which voters might choose . . . does not of itself compel

close scrutiny.’ ” Id. at 433-34 (quoting Bullock, 405 U.S. at

143).

In light of these competing interests, the Supreme Court

has developed the following balancing test for use in

determining the appropriate level of scrutiny to be applied

in ballot access cases:

[A reviewing court] must first consider the character

and magnitude of the asserted injury to the rights

protected by the First and Fourteenth Amendments

that the plaintiff seeks to vindicate. It then must

identify and evaluate the precise interests put forward

by the State as justifications for the burden imposed by

its rule. In passing judgment, the Court must not only

determine the legitimacy and strength of each of those

interests; it must also consider the extent to which

those interests make it necessary to burden the

plaintiff ’s rights. Only after weighing all these factors

is the reviewing court in a position to decide whether

the challenged provision is unconstitutional.

Anderson, 460 U.S. at 789. Pursuant to this test, “the

rigorousness of our inquiry into the propriety of a state

election law depends upon the extent to which a challenged

regulation burdens First and Fourteenth Amendment

rights.” Burdick, 504 U.S. at 434. “[W]hen those rights are

subjected to ‘severe’ restrictions, the regulation must be

‘narrowly drawn to advance a state interest of compelling

importance.’ ” Id. (quoting Norman v. Reed, 502 U.S. 279,

289 (1992)). However, “when a state election law provision

imposes only ‘reasonable, nondiscriminatory restrictions’

16

upon the First and Fourteenth Amendment rights of voters,

‘the State’s important regulatory interests are generally

sufficient to justify’ the restrictions.” Id. at 434 (quoting

Anderson, 460 U.S. at 788).8

Our first step in applying Anderson requires a

consideration of the burdens imposed on plaintiffs’

constitutional rights. See Anderson, 460 U.S. at 789. Here,

plaintiffs contend that the rights of indigent candidates and

their supporters are severely burdened by the filing fees at

issue and that the challenged ballot access scheme

therefore is subject to strict scrutiny under Anderson and

its progeny. In reply, the Commonwealth urges that Stith

8. We note that Anderson was not expressly decided on equal protections

grounds, see Anderson, 460 U.S. at 786, and that some uncertainty

therefore exists regarding its applicability to equal protection-based

challenges of state ballot access laws such as the one at bar. See, e.g.,

Fulani, 973 F.2d at 1543 (“It is not entirely clear . . . whether the

Supreme Court would apply [the Anderson test] in an equal protection

situation. None of the Supreme Court cases employing the Anderson test

concerned an equal protection challenge to state election laws.”); Recent

Cases, 113 HARV. L. REV. 1045, 1047 n.27 (2000) (“In the years since the

Anderson test was formulated, the Supreme Court has not evaluated any

ballot access restrictions under the Equal Protection Clause. As a result,

legitimate disagreement exists about whether the Anderson balancing

test applies in that context.”). However, neither party challenges its

application to the instant equal protection claim, nor do we see any basis

for refusing to so apply it. See Reform Party, 174 F.3d at 314 (assuming

that certain burdens “require the same level of scrutiny in an equal

protection analysis that they do in an associational rights analysis”);

Republican Party of Arkansas v. Faulkner Co., 49 F.3d 1289, 1293 n.2

(8th Cir. 1995) (“In election cases, equal protection challenges essentially

constitute a branch of the associational rights tree. When the Supreme

Court finds a violation of Equal Protection, it is nevertheless First and

Fourteenth Amendment associational rights which are inequitably

burdened.”); Fulani, 973 F.2d at 1543 (finding Anderson applicable to

equal protection-based challenges to ballot access laws).

Additionally, we note that, although Anderson involved a national

election, we have previously held that it is equally applicable in the

context of state elections. See Council of Alternative Political Parties v.

Hooks, 121 F.3d 876, 882 (3d Cir. 1997) (Alternative Political Parties I).

We therefore conclude that its application to the case before us is

appropriate.

17

and Linzey had sufficient resources from which to pay the

applicable filing fee. It therefore contends the burdens they

faced were minimal, and that strict scrutiny is thus

inappropriate.

For the reasons cited above in our discussion of Article III

standing, we reject the argument that Stith and Linzey were

required to pay the mandatory fees simply because they

had access to minimally sufficient funds to do so. Although

we do not pass on the precise showing necessary to

establish the type of financial hardship contemplated by the

Supreme Court in Bullock and Lubin, we conclude that

difficulty in raising the funds to pay the required fee, looked

at in light of the total assets and liabilities of the candidate,

is sufficient to satisfy the test. The fact that, in order to pay

the fee, Stith and Linzey would have had to completely

deplete their campaign funds and to expend funds needed

to pay ongoing living expenses and prior legitimate debts is

sufficient to demonstrate financial hardship.

Moreover, if a ballot access scheme, such as the one

here, imposes a mandatory filing fee but fails to provide an

alternative means of ballot access, such as signature

collection, that scheme constitutes a severe burden on the

rights of indigent candidates and their supporters. This

conclusion is clearly supported by the Supreme Court’s

decision in Bullock. There, the Court conceded that the

“disparity in voting power” caused by election systems that

separate candidates on the basis of wealth “cannot be

described by reference to discrete and precisely defined

segments of the community as is typical of inequities

challenged under the Equal Protection Clause.” 405 U.S. at

144. It further noted that “there are doubtless some

instances of candidates representing the views of voters of

modest means who are able to pay the required fee.” Id.

Nevertheless, the Court concluded that such systems

clearly “fall[ ] with unequal weight on voters, as well as

candidates, according to their economic status.” Id.

The Bullock Court therefore looked to poll tax cases such

as Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966),

which utilized traditional equal protection strict scrutiny

analysis, as providing the appropriate level of scrutiny for

analysis of ballot access laws such as those at issue here.

18

See Bullock, 405 U.S. at 142-44; see also Anderson, 460

U.S. at 792-93 & n.15 (citing Bullock for the proposition

that “it is especially difficult for the State to justify a

restriction that limits political participation by an

identifiable political group whose members share a

particular viewpoint, associational preference, or economic

status”); Dart v. Brown, 717 F.2d 1491, 1501 (5th Cir.

1983) (noting that the application of strict scrutiny in

Bullock and Lubin); Adams v. Askew, 511 F.2d 700, 703

(5th Cir. 1975) (“[W]here the fees exacted have ‘a real and

appreciable impact on the exercise of the franchise,’ based

solely upon lack of wealth and inability to translate voter

support into dollars, a strict standard of review is to be

applied.”) (quoting Bullock, 405 U.S. at 144).

The Commonwealth points to the size of its filing fees as

a reason to avoid strict scrutiny. This argument is not

sufficient. A relatively minimal fee, which is nevertheless

mandatory, means only that a smaller class of potential

candidates will be barred from the ballot. See Lubin, 415

U.S. at 717 (even moderate fees may prevent “impecunious

but serious candidates . . . from running”). In the absence

of a reasonable alternative means of ballot access, any

mandatory fee, no matter how small, will inevitably remain

“exclusionary as to some aspirants.” Id. at 718. We

therefore conclude that the Commonwealth’s failure to

provide a reasonable alternative means of ballot access

severely burdened plaintiffs’ rights.

The second, and final, step under Anderson requires us

to “identify and evaluate the precise interests put forward

by the [Commonwealth] as justifications for the burden

imposed by its rule.” 460 U.S. at 789. In so doing, we

“must not only determine the legitimacy and strength” of

the interests asserted by the Commonwealth, but “also

must consider the extent to which those interests make it

necessary to burden [Stith and Linzey’s] rights.” Id.

Because we have found the burden to be severe in this

case, the Commonwealth’s regulations “must be narrowly

drawn to advance a state interest of compelling

importance.” Burdick, 504 U.S. at 434 (internal quotations

omitted).

19

In conducting this analysis, “we cannot speculate about

possible justifications” for the challenged statute, but

instead “ ‘must identify and evaluate the precise interests

put forward by the [Commonwealth] as justifications for the

burden imposed by its rule.’ ” Reform Party, 174 F.3d at

315 (quoting Anderson, 460 U.S. at 789). Moreover, our

review is limited to those justifications cited by the

Commonwealth before the District Court, as “ ‘[i]t is well

established that failure to raise an issue in the district

court constitutes a waiver of the argument.’ ” Id. at 316

(quoting Brenner v. Local 514, United Bhd. of Carpenters,

927 F.2d 1283, 1298 (3d Cir. 1991).

Here, the Commonwealth identified two justifications for

the imposition of the disputed fees: (1) the regulation

and/or limitation of the number of candidates permitted on

the ballot, and (2) the use of filing fees to defray election

costs. We consider each in turn.

First, with respect to the Commonwealth’s assertion that

a mandatory filing fee properly limits ballot access to

serious candidates, we note, as the District Court did, see

Belitskus, 2001 WL 34064600 at *4, that the Bullock Court

found such fees to be “extraordinarily ill-fitted to that goal”

due to the availability of other means for protecting such

interests. Bullock, 405 U.S. at 146. Indeed, courts in

subsequent cases have repeatedly held that mandatory fees

do not, in and of themselves, properly separate out

spurious candidates. See, e.g., Clements v. Fashing, 457

U.S. 957, 964 (1982) (“Economic status is not a measure of

a prospective candidate’s qualifications to hold elective

office, and a filing fee alone is an inadequate test of

whether a candidacy is serious or spurious.”); Lubin, 415

U.S. at 717 (“Filing fees, however large, do not, in and of

themselves, test the genuineness of a candidacy or the

extent of the voter support of an aspirant for public office.

A large filing fee may serve the legitimate function of

keeping ballots manageable but, standing alone, it is not a

certain test of whether the candidacy is serious or

spurious.”); Fulani, 973 F.2d at 1547 (states “cannot use [a

signature verification fee] to decide who deserves to be on

the ballot,” as “a party’s ability to pay a verification fee is

not rationally related to whether that party has a modicum

20

of support”); Dixon v. Maryland State Admin. Bd. of Election

Laws, 878 F.2d 776, 784 (4th Cir. 1989) (noting that

mandatory fees “bar neither a wealthy frivolous candidate,

who can afford the fee, nor a destitute one, who is entitled

to a waiver”).

We see no basis for reaching a different conclusion

where, as here, the Commonwealth’s election laws also

contain signature requirements, see 25 Pa. Stat. Ann.

§ 2911, that more appropriately measure a candidate’s level

of commitment and popular support than does a

mandatory filing fee. In contrast to the fee, these signature

requirements fall equally on all candidates regardless of

economic status. See Green v. Mortham, 989 F. Supp. 1451,

1461 (M.D. Fla.), aff ’d, 155 F.3d 1332 (11th Cir. 1998).

Accordingly, even though the Commonwealth’s interest in

limiting the number of candidates on the ballot may be

considered to be one “of compelling importance,” Burdick,

504 U.S. at 434, its attempt to achieve this goal by

imposing a mandatory filing fee in addition to the existing

signature requirement while, at the same time, failing to

provide an alternative means of ballot access, can in no

way be said to be “narrowly drawn.” See Lubin, 415 U.S. at

718 (“Selection of candidates solely on the basis of ability to

pay a fixed fee without providing any alternative means is

not reasonably necessary to the accomplishment of the

State’s legitimate election interests.”). We therefore reject

this interest as a potential justification for the challenged

ballot access scheme.

The Commonwealth’s second asserted justification — that

it has a legitimate interest in defraying the costs of

elections — has been rejected by the Supreme Court in its

determination that a candidate need not pay his share of

the costs of an election that his participation incurs. See

Bullock, 405 U.S. at 148; see also Dixon, 878 F.2d at 783

(citing Bullock for the proposition that costs which are

simply “concomitants of the State’s legislative choice to hold

an election” may not be imposed on candidates). Such a

claim is particularly unavailing here where the fees

collected exceed the costs incurred by the Commonwealth

for the election related services described earlier and are

deposited directly into the Commonwealth’s general

21

operating fund. Thus, we conclude that this interest is not

“of compelling importance,” nor is the means of achieving it

“narrowly drawn.” Burdick, 504 U.S. at 434. We therefore

also reject it as a basis for upholding the constitutionality

of the Commonwealth’s mandatory filing fee as applied to

Stith and Linzey.

In making this “as applied analysis,” we do not

disapprove of the importance of the interests cited by the

Commonwealth. Our rejection of these interests as

justifications for the mandatory filing fee is premised not on

their legitimacy, but rather on the fact that they do not

resolve the core issue before us. Simply put, this case is not

about the size of the challenged filing fees, which, as the

Commonwealth correctly notes, are relatively moderate. Nor

is it about the interests pursued by the Commonwealth in

assessing these fees. Indeed, both interests cited by the

Commonwealth are legitimate; they have been recognized as

such by the Supreme Court, see Lubin, 415 U.S. at 713,

and have repeatedly been held to justify similar filing fees

when the challenged ballot access scheme includes a

reasonable alternative means of ballot access. See, e.g.,

Lindstedt v. Missouri Libertarian Party, 160 F.3d 1197,

1199 (8th Cir. 1999); Green, 155 F.3d at 1338; Matthews v.

Little, 498 F.2d 1068, 1069 (5th Cir. 1974).

Rather, the primary issue in this case is the absence of

a reasonable alternative means of ballot access. See Fulani,

973 F.2d at 1546; Little v. Florida Dep’t of State, 19 F.3d 4,

5 (11th Cir. 1994) (“It is undisputed that a filing fee as part

of the qualifications for seeking elected office does not run

afoul of the constitution where . . . an alternative method

is also available.”). By failing to provide such an alternative,

the Commonwealth has made economic status a decisive

factor in determining ballot access. It therefore has run

afoul of the Supreme Court’s ballot access jurisprudence.

See Anderson, 460 U.S. at 805 (“For even when pursuing a

legitimate interest, a State may not choose means that

unnecessarily restrict constitutionally protected liberty. . . .

If the State has open to it a less drastic way of satisfying its

legitimate interests, it may not choose a legislative scheme

that broadly stifles the exercise of fundamental personal

liberties.”) (citations and internal quotations omitted).

22

Because we conclude that the Pennsylvania mandatory

filing fee, as applied to Stith and Linzey, clearly violates the

Equal Protection Clause, we will affirm the District Court’s

grant of summary judgment as to Stith’s claim, and we will

reverse and remand the District Court’s ruling as to Linzey

with instructions that summary judgment be entered on his

behalf.

D. Claims Asserted by Donovan and the Pennsylvania

Green Party

As noted above, the District Court entered summary

judgment in favor of the Commonwealth with respect to the

claim asserted by Donovan. However, the August 20th

Order has caused some confusion, as it appears the

District Court mistakenly classified Donovan as a candidate

rather than a voter and also failed to dispose of the claim

brought by the Green Party.9

In their cross-appeal, Donovan and the Green Party now

contend that the ruling below was equivalent to a finding

that the Commonwealth’s ballot access scheme is

unconstitutional on its face. Each then argues in the

alternative that they are entitled to summary judgment

even in the absence of a finding of facial

unconstitutionality.

First, we reject the assertion that the District Court

intended to strike the challenged ballot access scheme as

unconstitutional on its face. Simply put, there is no

question that this case was filed and litigated as an “as

applied” challenge.10

9. In ruling on his claim, the District Court held that Donovan “did not

present evidence establishing that [he] could not afford to pay the filing

fee,” and therefore granted summary judgment to the Commonwealth as

to his claim. Belitskus, 2001 WL 34064600, at *2 n.2. The order makes

no mention of the Pennsylvania Green Party.

10. Indeed, plaintiffs’ claims clearly would have failed if brought as a

facial challenge. In order to successfully prosecute such a challenge,

plaintiffs would have to establish that no set of circumstances exist

under which mandatory filing fees are valid. See Artway v. Attorney Gen.

of the State of N.J., 81 F.3d 1235, 1252 n.13 (3d Cir. 1996) (“To make

a successful facial challenge in a non-First Amendment context, a

23

Nor do we need to reach the merits of Donovan’s “as

applied” claim because we conclude that his claim is not

“capable of repetition, yet evading review,” and is therefore

moot. In order for Donovan’s claim to be excepted from

mootness, Donovan must establish that “(1) the challenged

action was in its duration too short to be fully litigated to

its cessation or expiration and (2) there is a reasonable

likelihood that [he will] be subjected to the same action

again.” Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001).

We have no difficulty in concluding that the claims

asserted by Stith, Linzey, and the Pennsylvania Green Party

meet the above-cited requirements, and that they therefore

are not moot despite the fact that the 2000 election has

long since passed. See Belitskus, 2001 WL 34064600 at *4

n.7; Green, 989 F. Supp. at 1453 (“[I]t is a well-settled

principle that given the brief duration of the election season

ballot access cases are capable of repetition yet susceptible

to evading review. Therefore, the fact that the election at

issue has come and gone does not moot a plaintiff ’s

claims.”).11 Indeed, the Commonwealth makes no argument

litigant ‘must establish that no set of circumstances exists under which

the Act would be valid.’ ”) (quoting United States v. Salerno, 481 U.S.

739, 745 (1987)). Such a ruling would clearly run afoul of the Supreme

Court’s general approval of such fees. See Lubin, 415 U.S. at 712-13;

Bullock, 405 U.S. at 147; see also West Virginia Libertarian Party v.

Manchin, 270 S.E.2d 634, 639 (W. Va. 1980) (noting that Bullock and

Lubin “cannot be read to abrogate all filing fee requirements. Their

teaching is that as to those candidates who cannot pay the filing fee,

some alternative mode of gaining access to the ballot must be provided

such as petitions containing voter signatures.”). Accordingly, a suit such

as the one at bar must, by definition, be brought as an “as applied”

challenge and decided on its facts.

11. Despite our limitation of the scope of the District Court’s injunction,

discussed infra, we have no trouble in concluding that Stith and Linzey’s

“as applied” challenge was too short in duration to be fully litigated prior

to its expiration and that it therefore satisfies the first prong of the

exception to mootness: capable of repetition, yet evading review.

Thus, the only question before us is the second prong of mootness —

whether there is a “demonstrated probability” that the same parties will

again be involved in the same dispute. See Honig v. Doe, 484 U.S. 305,

318 n.6 (1988) (citation omitted).

24

to the contrary. We also note that derivative voter claims

similar to the one asserted by Donovan have qualified for

this exception in the past. See Corrigan v. City of Newaygo,

55 F.3d 1211, 1213-14 (6th Cir. 1995) (holding that voters’

claim that their rights were violated by virtue of the fact

that their candidates of choice were barred from the ballot

was capable of repetition, yet evading review).

However, because Donovan has left the Commonwealth,

and there is no evidence in the record to suggest he will

return in the future, we simply cannot find that there is a

reasonable likelihood he will again be eligible to vote for

The question whether Stith and Linzey will run in a future election,

and, if so, whether they will again qualify as indigent, is a close one.

However, as other courts have, we conclude that it is reasonable to

expect political candidates to seek office again in the future. See Vote

Choice, 4 F.3d at 37 n.12 (concluding that the case was not moot where

plaintiff “ha[d] not renounced possible future candidacies, and

politicians, as a rule, are not easily discouraged in the pursuit of high

elective office”). Given the lack of evidence to the contrary, we further

conclude that it is reasonable to assume that Stith and Linzey will again

seek a waiver of the mandatory filing fees based on indigency. Thus,

“[t]here is ‘every reason to expect the same parties to generate a similar,

future controversy subject to identical time constraints . . . .’ ” Patriot

Party of Allegheny County v. Allegheny County Dep’t of Elections, 95 F.3d

253, 257 (3d Cir. 1996) (quoting Norman, 502 U.S. at 287-88). Moreover,

a finding that this case is moot would essentially doom all challenges to

the Commonwealth’s ballot access law, as it is unlikely that any indigent

candidate’s claim could complete its course during a given election. See

Arkansas AFL-CIO v. Federal Communications Comm’n, 11 F.3d 1430,

1436 (8th Cir. 1993) (concluding that forcing plaintiffs to re-litigate their

claim would lead to a reoccurrence of the same issues which prevented

it from being litigated to conclusion prior to the previous election).

Our conclusion that the instant “as applied” challenge is capable of

repetition, yet evading review, comports with the Supreme Court’s

treatment of similar cases. See Storer, 415 U.S. at 737 n.8 (holding that

“as applied” challenge to a state election law was capable of repetition,

yet evading review despite the fact that the election was “long over, and

no effective relief c[ould] be provided to the candidates or voters”); see

also Anderson, 460 U.S. at 784 n.3 (concluding that challenge to state’s

early filing deadline for independent candidates was not moot despite the

fact that the election at issue had passed).

25

indigent candidates barred from the ballot by the

challenged fee structure. See Lyons, 461 U.S. at 108-09

(plaintiff ’s claim that he will again be stopped by police and

subjected to unreasonable force too speculative to support

finding that challenged behavior was capable of repetition,

yet evading review); Doe, 257 F.3d at 314 (finding no

reasonable likelihood that a prisoner who is no longer

incarcerated will again be subjected to the allegedly

objectionable practices of prison officials). We therefore lack

jurisdiction to address the merits of his claim, and will

remand it to the District Court with instructions that it be

dismissed as moot. See Klein v. Califano, 586 F.2d 250, 255

(3d Cir. 1978).

Finally, we address the claim that the District Court

erred in failing to grant summary judgment to the

Pennsylvania Green Party.12 Because the claim of the Green

Party is derivative of those asserted by Stith and Linzey and

because both candidates adequately proved their claim, we

conclude that the Green Party also has established

entitlement to relief. We therefore will remand the claim

asserted by the Green Party with instructions that

summary judgment be entered on its behalf.

E. Scope of the Injunction

Rule 65(d) of the Federal Rules of Civil Procedure states,

in pertinent part, as follows:

Every order granting an injunction . . . shall set forth

the reasons for its issuance; shall be specific in terms;

shall describe in reasonable detail, and not by

reference to the complaint or other document, the act

or acts sought to be restrained . . . .

Fed. R. Civ. P. 65(d). As we have previously held, district

courts granting injunctions pursuant to this rule should

craft remedies “no broader than necessary to provide full

relief to the aggrieved plaintiff.” McLendon v. Continental

Can Co., 908 F.2d 1171, 1182 (3d Cir. 1990).

12. Because this appeal is brought pursuant to 28 U.S.C. § 1292(a),

finality of judgment is not required and our jurisdiction to consider these

appeals is unaffected by the District Court’s failure to rule on the

Pennsylvania Green Party’s motion for summary judgment.

26

The injunction at issue here permanently enjoins the

Commonwealth from applying the challenged statute “to

Plaintiff Stith or other candidates who cannot afford to pay

the filing fee,” and from “otherwise requiring candidates to

pay a filing fee they cannot afford in order to appear on the

ballot.” Belitskus, 2001 WL 34064600, at *4. The

Commonwealth contends that this order is overly broad

and unduly vague because it prevents the application of the

challenged fee structure to candidates unable to pay the

required amount, but provides no criteria for making such

determinations.

Having reviewed the text of the injunction in light of the

facts of this case and the conclusions reached above, we

conclude that the District Court erred in issuing an

injunction broader than necessary to resolve the harm

demonstrated by plaintiffs. See McLendon, 908 F.2d at

1182. Specifically, we hold that the District Court need only

have enjoined the Commonwealth from enforcing the

mandatory filing fees against Stith and Linzey during the

November 2000 election and in any future election where

they demonstrate that they will be subjected to similar

financial hardship by the requirement that they pay the

mandatory filing fee.

We also hold that it was not necessary for the District

Court to include language in the injunction preventing the

Commonwealth from enforcing the challenged statute

against “candidates who cannot afford to pay the filing fee”

or “otherwise requiring candidates to pay a filing fee they

cannot afford in order to appear on the ballot.” Belitskus,

2001 WL 34064600 at *4. This language does nothing more

than order the Commonwealth to obey the law as stated in

Bullock and Lubin. It therefore will be struck from the

order. See Public Interest Research Group of N.J., Inc. v.

Powell Duffryn Terminals, Inc., 913 F.2d 64, 83 (3d Cir.

1990) (“Overbroad language in an injunction that

essentially orders a party to obey the law in the future may

be struck from the order”); SEC v. Warren, 583 F.2d 115,

121 (3d Cir. 1978) (affirming district court’s decision to

dissolve injunction that “merely require[d] defendants ‘to

obey the law’ in the future . . . a requirement with which

they must comply regardless of the injunction”).

27

In closing, we note that the vagueness and uncertainty of

which the Commonwealth complains in challenging the

scope of the District Court’s injunction, as well as the need

for such injunctions in the first instance, could be cured by

simply amending the election code to comply with the

Supreme Court’s ballot access jurisprudence.

Many state election codes similar to the one at issue here

(i.e., ones that impose mandatory fees but lack alternative

means of ballot access) were successfully challenged and/or

amended following the Supreme Court’s decisions in

Bullock and Lubin. See, e.g., Andress v. Reed, 880 F.2d

239, 241 (9th Cir. 1989) (noting that California amended its

election code following Lubin); Robinson v. Pottinger, 512

F.2d 775, 780 (5th Cir. 1975) (Alabama election law held to

violate the Equal Protection Clause under Lubin); Brown v.

North Carolina State Bd. of Elections, 394 F. Supp. 359, 362

(W.D.N.C. 1975) (three judge panel) (North Carolina ballot

access scheme held unconstitutional pursuant to Bullock

and Lubin); West Virginia Libertarian Party, 270 S.E.2d at

639 (West Virginia filing fees held to violate Equal

Protection Clause as applied to indigent candidates under

Bullock and Lubin); see also Br. For Appellees/Cross-

Appellants at nn.16-19 (listing more than two dozen state

statutes providing various alternative means of ballot

access). Thus, the Commonwealth’s current mandatory

filing fee places it among the few states that have failed to

come into compliance with applicable Supreme Court

precedent.

The problems at the core of this case are better resolved

by the Commonwealth’s legislature than by the federal

courts. The current lack of a reasonable alternative means

of ballot access results in an election structure that is

fundamentally flawed and will inevitably fail to pass

constitutional muster as applied to a certain percentage of

candidates. Continued case-by-case litigation of the

Commonwealth’s attempts to collect filing fees from

indigent candidates will not serve the interests of the

candidates, the Commonwealth, or its voters. The only way

in which to conclusively resolve the problems that gave rise

to this litigation is for the legislature to amend the statutes

at issue to comply with the Supreme Court’s ballot access

jurisprudence.

28

V. Conclusion

For the reasons stated above, we will affirm the judgment

of the District Court as to Stith, but we will vacate the

injunction and remand it to the District Court to reissue it,

limiting its scope in accordance with this Opinion. We will

also reverse the District Court’s judgments as to Linzey and

the Pennsylvania Green Party and remand these claims to

the District Court with instructions that summary

judgment be entered in their favor and that Linzey be

included as a party named in the injunction. We will

remand the claim asserted by Donovan to the District Court

with instructions that it be dismissed as moot.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit