Benezet Consulting LLC v. Secretary Commonwealth of PA

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-2976

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BENEZET CONSULTING LLC; TRENTON POOL;

CAROL LOVE,

Appellants

v.

SECRETARY COMMONWEALTH OF PENNSYLVANIA;

COMMISSIONER BUREAU OF COMMISIONS

ELECTIONS & LEGISLATION

________________

On Appeal from the United States District Court

for Middle District of Pennsylvania

(D.C. No. 1-16-cv-00074)

District Judge: Hon. Yvette Kane

________________

Argued on September 24, 2021

Before: MCKEE, RESTREPO, and ROTH, Circuit Judges.

(Opinion filed: February 24, 2022)

Lawrence M. Otter, Esq.

P.O. Box 575

Silverdale, PA 18962

Paul A. Rossi, Esq. [ARGUED]

IMPG Advocates Inc

316 Hill Street

Mountville, PA 17554

Counsel for Appellants

Howard G. Hopkirk, Esq.

Office of Attorney General of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

Claudia M. Tesoro, Esq. [ARGUED]

Office of Attorney General of Pennsylvania

1600 Arch Street,

Suite 300

Philadelphia, PA 19103

Counsel for Appellees

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OPINION OF THE COURT

_________

RESTREPO, Circuit Judge.

Appellants Benezet Consulting, LLC (“Benezet”) and Trenton Pool

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(“Pool”) are out-of-state petition circulators.1 In this appeal, we must

decide whether an injunction enjoining Pennsylvania’s election

officials from enforcing the In-State Witness Requirement as to

Appellants Benezet and Pool should be made permanent and

extended to future elections beyond 2020. We hold that permanent

injunctive relief extended to all future elections is appropriate for

Appellant circulators only, not to all similarly situated individuals,

and only if Appellant circulators continue to submit to the

jurisdiction of the Commonwealth of Pennsylvania.

This matter originated in 2016 and challenged

Pennsylvania’s ban on out-of-state circulators for primary

election petitions. In 2020, the District Court found that the ban

was not facially unconstitutional, but it was unconstitutional as

applied to Benezet and Pool for the 2020 election only.

Appellants did not appeal the District Court’s conclusion that

the ban was not facially unconstitutional. After the District

Court declined to expand the injunctive relief to cover future

elections for Appellees and all similarly situated individuals,

this appeal followed.

1

In Pennsylvania, a candidate seeking to be placed on a major

political party’s ballot must obtain 2,000 signatures from

individuals who are both registered voters within the

Commonwealth and members of the candidate’s political

party. 25 P.S. §§ 2867 & 2872.1. A “circulator” is one who

obtains signatures for nomination petitions for a prospective

candidate. See id. § 2869.

3

The issue before us concerns a review of the scope of

injunctive relief rather than the substantive law applied.2 This

appeal boils down to one question: Is a permanent injunction

appropriate where relief is granted on an as-applied basis? We

must decide whether the District Court erred in denying

Benezet and Pool’s request to have the enjoinment of

Pennsylvania’s 25 P.S. § 2869 (the “In-State Witness

Requirement”), as applied to them, permanently extended to

all future elections and all similarly situated individuals.

Following a review of the record and oral argument, we vacate

the District Court’s order and hold that the injunctive relief

shall be applied permanently to Appellants Benezet and Pool

on the condition that the Appellant circulators submit to the

Commonwealth’s jurisdiction.

I. BACKGROUND

A. Factual Background.

Under Pennsylvania law, candidates seeking to be placed

on a major party’s ballot must obtain at least 2,000 signatures

on a nomination petition, and Section 2869 of the Pennsylvania

Election Code requires that any circulator of nomination

petitions be “a qualified elector of the Commonwealth, who is

duly registered and enrolled as a member of the party

2

The parties do not dispute the District Court’s finding that the

ban on out-of-state circulators is unconstitutional as applied to

Benezet and Pool during the 2020 election.

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designated in said petition.”3 25 P.S. §§ 2867-2869. Appellant

Benezet is a Texas limited liability company, of which

Appellant Pool is the only member, and is involved in the

business of gathering signatures for political campaigns.

Benezet’s business specifically deals with “political

consulting, ballot access and signature gathering.” Pool is a

registered Republican in the state of Texas. Appellant Carol

Love (“Love”) is a registered Republican who resides in the

Commonwealth of Pennsylvania. Benezet took part in

signature-gathering efforts in Pennsylvania as part of the 2016

presidential election. In doing so, Benezet hired signature

gatherers as independent contractors. Benezet’s contractors are

paid on a per signature basis.

In 2016, Benezet entered a contract to gather signatures for:

(1) Ted Cruz for his candidacy for the 2016 Republican Party

nomination for United States president; (2) Donald Trump for

his candidacy for the 2016 Republican Party nomination for

United States president; and (3) Rocky De La Fuente for his

candidacy for both the Democratic Party nomination and as an

independent candidate for president. As a direct result of the

In-State Witness Requirement,4 Benezet is required to charge

3

This requirement does not apply if the petition “relates to

the nomination of a candidate for a court of common pleas,

for the Philadelphia Municipal Court or for justice of the

peace.” 25 P.S. § 2869.

4

25 P.S. § 2869 requires in part that the affidavit of circulator

for a nomination petition be executed by a person who is a

registered member of the party designated on the petition (such

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candidates a higher rate per signature collected than in other

states because Pool “had to pay witnesses to work with his

professional circulators in Pennsylvania.” App. 12. The

requirement imposes additional problems for signature

collection drives because of tethered to witness availability.

Benezet had trouble “find[ing] enough witnesses to circulate

nomination petitions” in three out of five congressional

districts and the lack of Pennsylvania in-state witnesses caused

Cruz delegates not to make it onto the 2016 primary election

ballot. App. 12-13.

Benezet relies extensively on transient workers with no

fixed addresses. Generally, these companies use independent

contractors that are paid to travel from state-to-state placing

initiatives and candidates on ballots. Appellee Br. at 10.

Benezet claims it “would have brought in more circulators for

the 2016 presidential nomination petitions” were it not for the

In-State Witness Requirement. Appellant Br. at 11.

Love is a registered Republican from Pennsylvania and was

added as a plaintiff to Appellant’s Second Amended

Complaint. She has signed at least one nomination petition for

a local Republican candidate in Pennsylvania prior to 2016.

Love was allegedly willing to sign a nomination petition in

2016 and was expected to sign a petition that Benezet expected

to circulate. However, she was not afforded an opportunity to

do so because Benezet was not able to secure an in-state

witness to travel with Pool to Lancaster County, where Love

that out-of-state circulators must be accompanied by that

individual in circulating nomination petitions).

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resides, to secure her signature on a nomination petition.

Appellants argue that the residency ban impairs Love’s right to

have Benezet’s out-of-state petition circulators reach out to her

and offer her to sign candidate petitions for her party’s primary

election. Appellant Br. at 9.

B. Procedural Background.

Benezet and Pool initiated this action on January 14, 2016

by filing a complaint against Appellees: (1) Pedro A. Cortes

(“Cortes”), in his official capacity as the Secretary of the

Commonwealth of Pennsylvania and, pursuant to Rule 25(d)

of the Federal Rules of Civil Procedure, Appellants substituted

Cortes with Kathy Boockvar (“Boockvar”) after she was

appointed Secretary of State following Cortes’s resignation;

and, (2) Jonathan Marks (“Marks”), in his official capacity as

Commissioner for the Bureau of Commissions, Elections and

Legislation (referred to together herein as “Appellees”),

challenging specific provisions of Pennsylvania’s Election

Code (the “Election Code”), in connection with Pennsylvania’s

primary election for president of the United States. Appellants

filed a motion for temporary restraining order, which the

District Court denied on January 27, 2016. In Appellants’

second amended complaint, Appellants requested declaratory

and injunctive relief pursuant to 42 U.S.C. § 1983 and sought

to prohibit Pennsylvania state officials from enforcing the state

residency requirement for witnesses of nomination petition

circulation under Section 2869’s In-State Witness

Requirement. Count I, the facial challenge, and Count II, the

as-applied challenge, of Appellants’ second amended

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complaint allege the In-State Witness Requirement violates the

First and Fourteenth Amendments to the United States

Constitution both facially and as applied to Appellants.

Adjudication of Counts I and III through X of Appellants’

second amended complaint are not the subject of this appeal.

Upon completion of discovery, the parties filed cross-

motions for summary judgment. On January 13, 2020, the

District Court issued an opinion granting in part, denying in

part Appellees and Appellants’ cross-motions for summary

judgment. The District Court held that Appellants’ claims were

justiciable and that Appellants have standing to pursue their

claims. The District Court found that the residency requirement

for circulators of nomination petitions was unconstitutional as

applied to Appellants. The District Court, however, limited

relief to just the circulation of nomination petitions by

Plaintiff-Appellants in the 2020 Republican presidential

primary. On February 10, 2020, pursuant to Rule 59(e) of the

Federal Rules of Civil Procedure, Appellants filed a motion to

amend or alter the judgment of the District Court requesting

that the as-applied relief be made permanent as to Appellants.

The District Court denied Appellants’ motion to amend the

judgment on August 28, 2020. Appellants timely filed a notice

of appeal on September 25, 2020.

Appellees did not contest the District Court’s adjudication

of the injunctive relief, only the extension of the injunction to

future elections. Accordingly, the only issue before this Court

is the extent of the as-applied relief granted on Count II of

Appellants’ second amended complaint.

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II. JURISDICTION AND STANDARD OF

REVIEW

Our standard of review of a district court’s decision

granting a permanent injunction is an abuse of discretion.

N.A.A.C.P. v. North Hudson Reg’l Fire & Rescue, 665 F.3d

464, 475 (3d Cir. 2011). “A district court abuses its discretion

if its decision rests on an incorrect legal standard, a clearly

erroneous factual finding, or a misapplication of the law to the

facts.” TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019).

A district court’s grant of an injunction pursuant to

Fed.R.Civ.P. 65(d) must create a remedy that is “no broader

than necessary to provide full relief to the aggrieved plaintiff.”

Belitskus v. Pizzingrilli, 343 F.3d 632, 649 (3d Cir. 2003)

(citing McLendon v. Continental Can Co., 908 F.2d 1171, 1182

(3d Cir.1990)).

We must also address mootness of the appeal in light of the

completion of the 2020 elections. Although there is no dispute

regarding the mootness, we must nevertheless address this

question to ensure that we have jurisdiction. See Whiting v.

Krassner, 391 F.3d 540, 544 (3d Cir. 2004) (citing Steel Co. v.

Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)).

A well-established exception to the mootness doctrine

holds that we have jurisdiction to decide technically moot cases

which are “capable of repetition, yet evading review.” Rendell

v. Rumsfeld, 484 F.3d 236, 241 (3d Cir. 2007) (quotations

omitted). The exception applies when “(1) the challenged

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action is, in its duration, too short to be fully litigated prior to

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

expectation that the same complaining party will be subject to

the same action again.” Id. (quoting Spencer v. Kemna, 523

U.S. 1, 17 (1998)) (quotations omitted).

This case meets both criteria. The procedural history of the

case demonstrates that it could not have been fully litigated

before the completion of the 2020 elections. Because 25 P.S. §

2869 remains in place, it is entirely likely that Appellants will

be subject to it in future election cycles, creating the same

controversy that took place in the most recent election. The

instant appeal thus presents a case that is “capable of repetition,

yet evading review.” We have jurisdiction to decide it.

III. DISCUSSION

Unlike facial relief, as-applied relief must contest a specific

application of a law. In general, “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) (noting that an as-applied attack contends that the a

law is unconstitutional, not as written but rather in its

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application to a specific person under specific

circumstances); United States v. Marcavage, 609 F.3d 264,

273 (3d Cir. 2010) (same). The Supreme Court has also

commented on the distinction, noting that as-applied relief

must be limited to the specific plaintiffs and circumstances of

the litigation. Doe v. Reed, 561 U.S. 186 (2010) (“Because

[the]… claim and the relief that would follow— an injunction

. . . — reach beyond the particular circumstances of these

plaintiffs, they must satisfy this Court's standards for a facial

challenge to the extent of that reach.”).5 However, there may

5

Our Sister Circuits have similarly noted this distinction. See

Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409,

425 (5th Cir. 2014) (“[T]o categorize a challenge as facial or

as-applied we look to see whether the ‘claim and the relief that

would follow . . . reach beyond the particular circumstances of

the [ ] plaintiffs.’ If so, regardless of how the challenge is

labeled by a plaintiff, ‘[t]hey must therefore satisfy our

standards for a facial challenge to the extent of that reach.’”)

(second and third alterations in original) (citation omitted)

(quoting Reed, 561 U.S. at 194); Disc. Tobacco City & Lottery,

Inc. v. United States, 674 F.3d 509, 522 (6th Cir. 2012) (“In

this case, Plaintiffs label their claims as both facial and as-

applied challenges to the Act, but because the ‘plaintiffs’ claim

and the relief that would follow . . . reach beyond the particular

circumstances of these plaintiffs,’ the claims that are raised are

properly reviewed as facial challenges to the Act.” (quoting

Reed, 561 U.S. at 194)); see also Am. Fed'n of State, Cnty. &

Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 862 (11th Cir.

2013) (“We look to the scope of the relief requested to

determine whether a challenge is facial or as-applied in

nature.”).

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be instances when a court can exercise its powers to broaden

the scope of as-applied relief if the constitutional attack reveals

that a law is invalid “across the board.” Whole Woman's Health

v. Hellerstedt, 136 S. Ct. 2292, 2297 (2016); see also Citizens

United v. FEC, 558 U.S. 310, 333 (2010) (reasoning that in

“the exercise of its judicial responsibility” it may be “necessary

. . . for the Court to consider the facial validity” of a statute,

even though a facial challenge was not brought).

At oral argument, Appellants narrowed their request for

relief and asked this Court to extend injunctive relief to only

the named Appellants, not all similarly situated individuals.

Though this differs from what Appellants argued in their brief,

we agree that an extension of relief for Benezet and Pool is

appropriate so long as they submit to the jurisdiction of the

Commonwealth of Pennsylvania. Where the requested relief

pertains only to the appellant circulators themselves, the

circumstances—future election cycles included—are limited

enough to invoke as-applied relief so long as the Appellants

agree to submit to the jurisdiction of the Commonwealth of

Pennsylvania. As long as 25 P.S. § 2869 remains in effect and

Benezet and Pool submit to the jurisdiction of the

Commonwealth of Pennsylvania, the circumstances that were

in place at the time Appellants filed their complaint will remain

and duplicate at each election; Benezet and Pool will continue

to be repeatedly subject to the requirements of Section 2869

and eligible for injunctive relief. Limiting the injunctive relief

to the specific parties to this litigation honors the principles of

as-applied relief as set out by the Supreme Court in Doe v.

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Reed, 561 U.S. 186 requiring as-applied relief be limited to the

specific plaintiffs and circumstances of the litigation.

While an extension of injunctive relief pertaining to

Benezet and Pool in future elections is appropriate here, the

same does not hold true for all similarly situated individuals.

The Appellants’ as-applied claims do not show that the 25 P.S.

§ 2869 is invalid as applied to all circulators, both in the last

election and future elections, covered by the statute at issue.6

Further, similarly situated individuals seeking to litigate

similar claims would require a factual record specific to each

plaintiff including, but not limited to, each individual

circulator’s submission to the jurisdiction of the

Commonwealth of Pennsylvania. As the District Court noted,

examining the merits of Plaintiffs’

First Amendment challenge to the

In-State Witness Requirement

requires the development of a

specific factual record on which

the Court may ascertain the ability

of the Commonwealth to further its

interest in preventing voter fraud

6

In fact, Appellants concede that “[o]ut-of-state circulators

unwilling to submit to the jurisdiction of the Commonwealth,

or who are not members of the same political party as the

candidate, are properly excluded from the court’s as-applied

injunctive relief from the residency requirement imposed on

circulators of nomination petitions by 25 P.S. § 2869.”

Appellant Br. at 16.

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while ensuring that the First

Amendment rights of the

circulators are not impermissibly

infringed.

App. 58. Here, Appellants’ request for permanent relief for

themselves and all similarly situated individuals would go

beyond the specific plaintiffs and circumstances of this

litigation, and it would constitute facial relief. A factual record

specific to each similarly situated individual circulator will be

necessary to determine the appropriate relief in future

elections. Each individual circulator will need to demonstrate,

among other factors, their willingness to submit to the

jurisdiction of the Commonwealth for the purpose of

nomination circulation. We therefore decline to extend the

injunctive relief to all similarly situated out-of-state

circulators.

Appellants also request relief for Love. Love is not an out-

of-town circulator but rather a registered Republican and

Pennsylvania resident who, because of the In-State Witness

Requirement, was unable to sign a nomination petition that

Benezet expected to circulate in 2016. Appellants argue that

the Witness Requirement compromised Love’s First

Amendment right to receive the speech of out-of-town

circulators, including her co-appellants and similarly situated

individuals. While it is unclear whether or not Love has

standing in this matter, we need not address that question here;

the extension of injunctive relief to Benezet and Pool addresses

and effectively moots Love’s issues with respect to her co-

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appellants. To the extent that Love is seeking to receive

nomination petition-related speech from her named co-

appellants during future election cycles, this Court’s extension

of the injunctive relief to Benezet and Pool will allow her to do

so without the impediments of Section 2869’s In-State Witness

Requirement, so long as her co-appellants submit to the

jurisdiction of the Commonwealth of Pennsylvania. To the

extent that Love seeks to receive nomination petition-related

speech from similarly situated out-of-state circulators, we

decline to extend such relief. Doing so would constitute facial

relief, which would be inappropriate here for reasons we have

already explained.

IV. CONCLUSION

For the foregoing reasons, we vacate and remand the order

to the District Court with direction to enter the permanent

injunction in favor of Appellants Benezet and Pool only, so

long as they agree to submit to the jurisdiction of the

Commonwealth of Pennsylvania.

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